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Find Blog Articles for Florida’s Condo, HOA and the Management Industry.
Join The Falcon Group in congratulating our two newest Principals of the firm!
Mr. Steven Lang, R.A., AIA, NCARB
and Mr. Sinisa Kolar, P.E.
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Thinking outside the box can be great, especially in the homeowners association and condo association industry. It’s what makes our signature collections process here at Axela so successful.
But out-of-the-box thinking can be used against you, too. Attorneys are always looking for new ways to make the most money, even HOA attorneys. Time and again we’ve seen the tricks they use claiming to try to collect for your association, but really they’re just lining their own pockets. So often, using an HOA attorney ends with the association losing the money owed to them, and having to pay on top of that to cover lengthy legal efforts that didn’t succeed anyway.
Every time we hear stories about the crazy lengths some lawyers will go to when collecting for HOAs or condos, we start to think maybe the box is there for a reason.
A while back we talked about a community in a sticky collections situation. One of their unit owners had passed away, leaving a mortgage-free title to an heir. But, it came with a $13,000 tax certificate (which had been sold to an investor) and $17,000 owed to the association, as well as a tax-deed sale that had already been set. The perfect storm for the association to lose out on a hefty chunk of change. Now Axela was able to draft a clever plan to avoid that and had to act quickly to make it work, but if we hadn’t been called in, here’s what would have happened:
The HOA’s attorney wanted to let the unit go to the tax-deed sale and then file a suit for something called “unjust enrichment.” This is a claim basically stating that someone (in this instance, the investor who’d purchased the tax certificate) was paid at the expense of someone else (the association).
This is a risky play for a lot of reasons: first, if the tax sale goes through, the money owed to the association is ‘wiped out,’ meaning there is no chance of recovering money from the sale or from the owner after the fact. Additionally, if the judge found that the investor was not unjustly enriched (which is the likely outcome) their tax lien would have been rightly prioritized over association fees.
So the idea of unjust enrichment was a wild reach that was almost certainly going to be unsuccessful in recovering for the association. But it would have been a definite way to tack on a ton of hours in legal fees for the attorney, wouldn’t it?
Fishy lawsuits aren’t the only questionable trick attorneys have up their sleeves. One client we worked with had an attorney attempt to completely ignore state statutes by advising the Board to modify the community’s governing documents to contradict state laws. This was complicated and unethical for several reasons, like the fact that governing documents don’t overrule state statutes (something an HOA attorney would be WELL aware of!) so the attorney’s time and counsel which they charged the association for were totally unnecessary.
To add insult to injury, these changes were made to try to force the bank to take responsibility for debt owed to the association, creating a lengthy legal battle as part of this ridiculous plan. Again, we’re seeing a trend of attorneys being paid but the association not recovering their lost income – in fact, the community often winds up owing the attorney more for their efforts and having to write off the bad debt from the delinquent assessments. Talk about throwing good money after bad!
Clearly, all HOA attorneys are not the same, and we hope that your community association’s attorney is an upstanding and ethical partner for your community. You need your attorney to be available to advise you on decisions the Board makes to help prevent future lawsuits and to deal with any that do come.
But your attorney is just one of the tools in your community association’s toolbox. Just as you wouldn’t use your HOA attorney (and pay their high fees) to perform management tasks, you also shouldn’t be hiring your attorney to perform collections. The attorney’s only recourse is to take the issue to the courts. That means pursuing foreclosure, or, if that’s not likely to be successful, trying some legal scheme like these that will get the attorney paid for their time, but is unlikely to end with money in the association’s pocket.
Thinking outside the box can be great, but the more we hear about the crazy legal hoops attorneys find to jump through that only seem to take advantage of the association, the more we think that they need the box.
There’s at least one ethical, merit-based way that has a 95% success rate when it comes to collecting debts owed to associations: Axela. Our proprietary technology and process empowers defaulted homeowners to set up payment plans they can actually pay off, rather than harassing them for lump sums of money they’ll never be able to repay, or putting them out of their home in a foreclosure.
Tags: Collections, Management News
We know that this headline reads like a Florida-specific issue, but Florida is often used as a guideline for other state laws and courts. For this reason, we think it’s important for homeowners and condo associations in other states to take note.
In Accardi v. Regions Bank, Florida’s 4th District Court of Appeals reversed a lower court ruling that awarded the bank a deficiency judgment and remanded the circuit court to enter an amended final judgment to include attorney’s fees and taxable costs only. The bank was not able to recover its deficiency judgment.
This happened because of a Florida Statute that states “Actions other than the recovery of real property shall be commenced as follows … within one year” (of a certificate of title being issued or acceptance of a deed in lieu of foreclosure, that is):
“An action to enforce a claim of a deficiency related to a note secured by a mortgage against a residential property that is a one-family to four-family dwelling unit. The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.”
That’s a lot of legal jargon that most simply translates to say that there is a one-year statute of limitations period for which a claim for a deficiency may be acted upon (not to be confused with the timeframe for enforcing a deficiency judgment that has already been entered) in order to avoid the deficiency claim from becoming time-barred.
This Accardi v. Regions Bank ruling got us all thinking. Clearly, it reflects a problem for banks and lenders who have had to foreclose and were left with a sale that did not satisfy the judgment amount at foreclosure, but that isn’t really the takeaway here. The takeaway is that, in theory, this same statute could potentially be used to prevent delayed collections for HOAs and condo associations when attempting to recover assessments post-foreclosure.
Is your community association trying to recover outstanding debt post-foreclosure? You should be.
If the association was the foreclosing party, and they recovered less than the amount owed as a result of the sale of the property, then that would give rise to pursuing a claim for a deficiency. So it would be very worthwhile to enforce a claim for a deficiency within a year of the certificate of title being issued.
Again, this statute of limitations is specific to Florida, so if your own state already has statutes that have different time restrictions, you need to follow those to the letter of the law. But doing this seemingly small task in the right time frame could be the difference between getting your deserved monies owed or leaving it all on the table due to a dickered-out semantic technicality.
Similarly, if an association has debt that is uncollectable from a subsequent owner due to superior lien foreclosure or tax sale, the association should act quickly to enforce its collection rights on this debt. While the fact pattern under this scenario is different from pursuing a deficiency claim created by virtue of the association’s own foreclosure sale, it would be wise to take action to collect on this debt sooner rather than later, to avoid any potential argument that would suggest it is a deficiency and that it is time-barred.
Collections delayed are collections denied.
No HOA or Condo association should stop trying to collect the money it is owed to them until said debt has been declared uncollectible by a collection professional, and that may not be your community association attorney. Don’t leave money on the table and don’t accept HOA and condo delinquency write-offs. Let a professional Condo and HOA collection company recover the money that is owed to your community association.
Axela Technologies, the nation’s leading collection company for community associations, does know the laws nationwide and we suggest that pursuing that debt at no cost and no risk is a good strategy. A great strategy, you must send the file to collections before it is too late. Perhaps a court will say that beyond one year is too late.
Don’t write off debt that could have been recovered. Call us for a free review and collection analysis. Not only can we collect from debtors who have been foreclosed on, but we can also collect from homeowners who are behind on their assessments, all at no cost to the association.
Find us on SFPMA Learn more about the services we provide.
In general, a community association is responsible for operating and maintaining the common areas of the community (in the case of homeowners’ associations), and the common elements (in the case of condominium associations). If there are trees located on these common areas/elements, the association’s maintenance duties will include trimming and even the removal of trees that may be dead or dying. Before performing any significant trimming or removal of trees, however, an association must determine whether any prior governmental approval is required.
It is common for counties and/or cities to have ordinances regulating the planting, removal, and replanting of trees in residential areas and requiring a permit prior to the removal of certain trees. Section 163.045, Florida Statutes, which went into effect on July 1, 2019, appears to change the extent to which local governments can enforce such tree regulations. Interpretation issues, however, leave the true scope of the statute unknown, particularly as it relates to community associations.
The statute, which was intended to strengthen property owners’ rights against local government overreach, prohibits local governments from requiring notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property. Additionally, under the statute a local government may not require a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section. [Note: Section 163.045, Florida Statutes, does not apply to the exercise of specifically delegated authority for mangrove protection pursuant to ss. 403.9321-403.9333, Florida Statutes.]
In applying this statute, it is important to note that it only applies to “residential property” and only to trees which are documented by a certified arborist or a Florida licensed landscape architect as “present[ing] a danger to persons or property.” Both exemption requirements present interpretation issues. The fact that “residential property” is not defined has caused some governmental authorities to question whether this exemption would even apply to common areas/elements in the community association setting. Additionally, the requirement that a certified arborist or licensed landscape architect must document that a tree “presents a danger to persons or property” is problematic in that dangerous is not a term that is normally used or defined in the tree care industry’s risk assessment standards. Rather, assessments of tree safety by such professionals focus on the qualified risk of trees, and how this relates to the statute’s use of the word “danger” remains to be seen.
Local governments have acknowledged that the statute sets up some interpretation issues, and it has been reported that different jurisdictions are reaching different results. The consequences of an association, without prior approval, trimming or removing trees in a jurisdiction that is interpreting this statute as not applying to common areas/elements could be code enforcement actions, costly fines, or other remedial measures. For this reason, before trimming or removing trees from the common areas/elements, it is recommended that associations consult with their association attorney to discuss how their local governments are interpreting this statute and whether or not local ordinances must still be followed before pruning, trimming, or removing trees.
Sara K. WilsonAttorney at Law
Tags: Common Area Issues, Condo and HOA Law
HOW IN THE WORLD DID WE GET HERE?
By Eric Glazer, Esq.
So, I get a call a few weeks ago from a reporter at The New York Times. He was doing a story about the incredible number of condominiums in Miami and how fast they were all built. How the entire skyline on the coast changed dramatically in the past 40 years or so and if it’s possible that The Champlain Towers in Miami was just a freak occurrence, or something that we need to start thinking about regarding all condominiums that were rushed through and given the green light. Is it possible for other similarly situated buildings to start falling down?
The story is somewhat startling but not surprising. It’s a story about greed, out of control construction, tampering with Mother Nature, little to no inspections, rushed through permits, law firms and politicians helping developers and The Florida Legislature turning a blind eye towards all of it.
If you’re living in a building in Miami, this is a must read. If you don’t live in Miami, but are concerned about whether or not your building was built properly, it’s a must read as well. Besides myself, there are politicians, builders, developers and other experts that tell their side of the story in detail. Some of it is shocking.
Because so many turned their backs years ago, no wonder the story is called THE TICKING CLOCK OF MIAMI’S CONDO EMPIRE. You should also know that coincidentally, Robert Lisman, who is the resident from Champlain Towers East, is the producer of our Condo Craze You Tube channel. It’s a long article but again, it’s a must read. To read it, click the Towers and the Ticking Clock below:
Tags: Management News
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During the summer, we all look forward to recreational activities on local lakes and ponds; however, sometimes our plans are canceled due to unsightly, smelly, harmful algal blooms. Knowing a little about how HABs form can help us understand their health effects, ways to identify them, and strategies to prevent them.
Algae are a natural feature in many aquatic ecosystems. Most lakes have some algae growth on a regular basis, especially during the warm summer months, but it is crucial to stay on top of the algae development since blooms can happen quickly – before you know it, there are ugly floating mats on the lake’s surface. Likewise, certain species like cyanobacteria (also referred to as blue-green algae) can create concerning conditions by releasing dangerous toxins into the water.
Here are some signs that a bloom may be harmful:
Each bloom’s toxicity can vary and it’s hard to predict how dangerous a bloom will be as its toxicity changes daily. If the lake on your property looks like it may be developing dangerous levels of algae growth, take immediate steps. Not all blooms are toxic, and the only way to be sure that a bloom may become toxic is through laboratory testing. However, it can take a few days to collect and test samples, and by then, it may be too late.
Most often, harmful and toxic algal blooms occur because a lake or pond is not healthy. The lake may have an excess nutrient load due to the presence of too much phosphorus and nitrogen. When there are too many of these nutrients in the lake water, algae can overgrow or bloom.
A waterbody’s health can change year over year, depending on the weather and other factors in its surrounding environment. This is why a lake that was seemingly healthy suddenly experiences a bloom. This doesn’t necessarily mean the lake is destined for poor health, but it does indicate that there are imbalances that must be addressed.
Conditions that may change lake health and cause a harmful algal bloom include:
The toxins produced by harmful algal blooms can cause serious health impacts to pets, people, wildlife, and livestock. These health effects can range from skin irritation and rashes, gastrointestinal illnesses, neurological problems, and even death.
Once algae have overgrown enough to cause a large bloom, management can be challenging. Prevention is the best way to ensure harmful algal blooms don’t occur. Association boards and community managers can help prevent or minimize the risk of harmful algal blooms by taking the following steps:
To eliminate algae, the best course of action is to contact a freshwater management professional who can monitor and maintain balanced water quality and advise and apply appropriate management solutions. These professionals will ensure that the lake or pond’s water is clean and healthy and that the levels of algae remain at beneficial, manageable levels.
Tags: Lake Management Articles, Management News
by Bob Gourley / Axela Technologies
As an HOA delinquency collections professional, I frequently handle collection issues involving home and unit owners who have fallen behind in the timely payment of their association. So I know all too well the very real emotional cost paid by both debtor and collector. Timely payment and collection of common fees and assessments is as basic a business transaction as there is. However, because real human beings are involved, the transaction is often wrought with human emotion. Many times, those emotions range from tragic to hostile. Using a specialized debt collection agency for your condo or HOA delinquency problems isn’t just practical, it could be a lifesaver!
Unfortunately, regardless of how a condominium or HOA is managed—professionally or by the association itself—HOA delinquency cannot go unchallenged. If common fees and assessments aren’t collected in a timely fashion, the association suffers. Monies that were budgeted for association expenses aren’t available and, in some extreme cases, the good-paying owners in the community could be forced to cover the delinquencies through increased dues or assessments. This is an unfair situation that can cause serious distress in your community.
That said, consider this: when a homeowner hasn’t paid their association dues for multiple months, there are typically underlying circumstances and turmoil. Money is tight for whatever reason and the homeowner has decided that the association can wait for their money. Studies have shown that people experiencing financial hardships are far more prone to physical and emotional illness. Approaching someone who is experiencing financial hardship is challenging and should be handled by someone trained in doing so, as the conversation will likely be unpleasant.
Should a delinquent homeowner decide to call the association or management firm to discuss their delinquency and address how they will repay the association, it will almost certainly be a lengthy call. It typically starts pleasant enough but quickly devolves into a discussion of non-association business items and explanations (or excuses) of why the fees cannot be paid at this time. The debtor will often play to the empathy of the person receiving the call, expecting that their story will convince the call recipient of their goodness and their intent to pay eventually when things get better for them. But the association is a business, and no amount of empathy can erase the fact that the money they owe is very much needed to keep the community healthy and successful. Homeowners often fail to remember that they don’t just live in a house that they call home, they live in a collection of homes that rely on one another to thrive, and any dollars lost can cause real struggle.
Once they are reminded of that, the call tends to escalate into anger because the debtor isn’t getting the leniency they hoped for or want. If you have ever received a call like this, you know exactly what I am talking about. These calls often end with little to no positive outcome.
In fact, there is usually a negative outcome. The debtor is upset because the call didn’t go their way. They still owe the money and they are now convinced that the association doesn’t care about them. The call recipient is typically upset because they have spent a great deal of time hearing the sad tale of woe and then being subjected to the debtor’s anger when things didn’t go their way. I have heard tales of people listening to the debtor for 25 to 30 minutes and then needing just as long to recover from the sad and hurtful phone call before being able to get back on task. This is a great emotional expense, but it can also be a great financial expense for time lost to an unproductive activity.
Using a specialized and fully licensed condo and HOA delinquency collection service such as Axela Technologies makes perfect sense in this situation. The association or management firm simply places the delinquent home or condo owner into our collections system as needed. At no cost or risk to the association, Axela Technologies’ highly-trained debt collection professionals take that burden off the association or association management firm. Since working with delinquent owners is all we do, you can bet we are equipped to handle the emotional cost of delinquency to the owner as well as the association. Since our service is merit-based, there is no extra financial burden on the good-paying owners. We take a negative and turn it into a positive.
Get in touch with Axela Technologies and avoid the emotional cost of delinquency for your association and your association members. Axela Technologies handles all collections on a merit-based system. Visit our website at https://www.axela-tech.com today to get in touch with one of our collections experts.
Tags: Board of Directors, Collections, Management News
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With the new Law – Florida CS/HB 1237- One part of this is Every Condo, HOA and Association will have to inform owners and keep documents and Files available to All Owners. These Condos will need WEBSITES for this to be compliant. WE CAN HELP YOU WITH DESIGNING YOUR WEBSITE!
Tags: Association Websites, Members Articles
First of all, it is not healthy for them as they become dependent on people for food. The best food for ducks is what they eat naturally— algae, insects and a variety of plants which are abundant in our subtropical climate. Humans most often feed them bread and similar items. These have no nutritional value for the duck. Additionally, feeding by humans makes the ducks reliant on such hand-outs, too lazy to continue foraging for their natural dietary items and uneaten “human” food will rot quickly in warm weather.
Second, feeding ducks encourages them to use the neighborhood as their bathroom, leaving droppings on patios, sidewalks and porches. As a result, controversies frequently arise between residents who enjoy the birds and residents who consider them a nuisance. Even duck lovers have complained about the problem of duck droppings on the lawns, drive-ways, patios, and even in their swimming pools. This is not healthy for people, particularly for the children playing in these areas. Wild ducks can spread disease to humans. When small children, the elderly and persons with immune system problems directly handle newly-hatched chicks, they may be exposed to salmonella. Muscovies can also transmit disease to wild waterfowl. All confirmed outbreaks of DVE, also known as duck plague (a sometimes-devastating viral infection) in wild waterfowl have been linked to domestic ducks. Fowl cholera is another serious disease that is transmittable between domestic and wild waterfowl. Although we have had no major outbreaks reported yet in Florida, the potential for Muscovies to spread this disease to wild waterfowl is a biological concern.
DON’T: Feed ducks bread or junk food. Foods like bread and crackers have no nutritional value to ducks and can cause malnutrition and painful deformities if consumed too much.
DON’T: Leave uneaten food lying around. Leftover food in the water can rot and cause deadly algae blooms that affect local wildlife.
DON’T: Try to pet wild ducks. They may not appreciate your efforts!
Keep a respectful distance and remain nonthreatening, especially to ducklings who may become stressed or injured more easily.
Tags: Condo and HOA, Lake Management Articles, Members Articles
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SFPMA works throughout the State of Florida, we are a multi-member organization for the Condo, HOA and Property Management industry. Through knowledge based Articles, Events and our Members Directory, Clients find the right information to make an informed decisions for their Florida properties.
