Third degree felony in FLorid vs HOA

Mark as we posted on your original thread: http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/142802/view/topic/Default.aspx

I would add that a phone call doesn't cut it, if they are refusing your purchase they need to put it in writing. Until you have that in your hand, I would just go though with the closing. Since you have the CC&R's perhaps you could post the relevant section giving them the power to interrupt the sale.

Mark

Does the CC&R's give them blanket permission to deny based on anything or are there certain things in there that they can deny for. While I don't agree with the crime you committed i will say not all felonies are created equally. I could potentially side with them if you were a sex offender or something of that matter but on this not so sure.

As Glen said a phone call does nothing, it needs to be in writing and you should also have the ability to have a hearing. I would get with your real estate agent and ask for their help, maybe even ask a lawyer to write a letter on your behalf.

I am in no way descending my offense on here but I do think to deny me given the offence type is a pretty harsh stance. NO SEX OFFENDER HERE(not yelling just wanna be clear) I have a third degree felony for DWLS...

I spoke to a lawyer yesterday and plan on retaining one to write a letter. I plan on calling up there again today regarding what type of formal denial are they planning on producing to me.

My real estate agent just had surgery and is currently not in the best condition to help me right now ( I know perfect timing) but she has not been in officer for a week now.

I also need to know do any Florida STAT law protect me here? I read somewhere that know one can deny you where to live just because you have a criminal background, unless your a sex offender, so I need to get more information on that position if any one knows what I should be doing.

In the CCR&R's language it states that the association may disapprove of the transaction by written notice to owner, which in this case is a bank. If the association plan on disapproving with sale they have to be prepared to buy property or find a designated purchaser for purchase under same terms.

Mark

This is usually called Right Of First Refusal. It was primarily used to prevent "certain types" ("keep them there darkies out") from moving into an association. I believe it has been dropped from most docs and in some case been ruled flat illegal depending on how written.

Basically it said that the association had the first right to buy the house for the same agreed upon sales price. Personally, I doubt they will do such.

I would contact my bank rep direct. Make stupid. Ask the bank if the association has to approve the sale and if so, have they done such already? Do not expound on your reason for asking.

If you want to be on the safe/prepared side then you could formally/as in pay to discuss the situation with a lawyer as a heads up in case you have to use one, they can be prepared to atttack fast.

Hope this helps.

Mark

Has the BOD sent the bank anything yet? If not, then I say keep the attorney on hold until they do. If they have, then fire all legalese directly at them.

I believe a Right Of First Refusal could be legally/properly written that is no way discriminatory (as many early ones were) and would hold up in court.

Hope this helps.

Because if they think that you've given up over the phone call it is likely that they will do nothing and the sale will go through. If you keep hassling them, it's likely they will pursue it. Instead of telling us what the Covenant basically says could you just post what it actually says, the devil is in the details. I know this is important to you since you just started your third thread over it and we are trying to help.

There is no where for me to send an attachment on this portal forum. It would be to long for me to type the entire page on here given the fact I got to get back to work.

The BOD has done nothing as of yet, besides the verbal they gave me of denial that i know of. I called the lady again and asked if there maybe some appeal process on their decision or a set up meeting with the board? She stated that she would talk with them and get back to me. I am still awaiting her call back.

Hopefully I can plead my case and type of felony in person to see if this may make a difference, but so far I am not aware that they have contacted the bank with denying me and i don't want to ask as to giving them next step ideas. I am sure that would be their next step but so far i have not heard anything regarding contacting the bank (seller)

I would let it lie...the board clearly has the duty to inform the owner and that clearly hasn't happened yet as the Bank has called you. i would work behind the scenes and let it lie on the surface.

Mark

Tough love here.

What do you not understand about do not pick the scab?

The bank might well approve the deal and you own the place before the BOD wakes up. Stop waking them up.

Hope this helps.

I think your putting the cart ahead of the horse here. The seller is the bank is it not? I don't know why they would need permission from the HOA to sell the property they own. The HOA doesn't have a say on who any owner sells their property to. Unless the HOA actually owned the home or they were the one foreclosing.

Think your over thinking this based on one phone call conversation. Sounds like your closing is still on. The only parties that should be able to stop it is your mortgage company your getting the money from. They did the approving for the money and should have been aware of the HOA's existance. That's because they have to factor in your dues payments as a factor for affording the home.

Go ahead with the purchase. It's not unusual for closings to get delayed. I've seen some get delayed a few times due to various reasons. So if it doesn't happen on the original day, doesn't mean it won't happen. Just will have to work through whatever issue appears. This issue to me is a non-issue that the HOA can't enforce and don't want to find out they can't either.

One more flash of brilliance: The burden seems to be on the seller to provide the association with a suitable buyer (in the eyes of the association) or sell the unit to the association or allow the association to find a buyer.

What if the seller ignores all that and just conveys the property to a buyer? The buyer has done nothing wrong. He had no contract with the association until he became a member by way of acquiring title to the property. I have never heard of breach of contract before becoming party to a contract.

The association may have a claim against the seller (the bank, in this case) for breach of contract but would be hard-pressed to prove any damages. In a court battle between an association and a bank, my money would be on the bank. It's not that they are right; the bank just has more lawyers and more money. In any event, the dispute would be between the seller and the association; the buyer would not be a party to the lawsuit.

The bank wants to get rid of the property, bottomline, it costs them money. They have attorneys that could probably make the HOA cry within 5 minutes. I agree with John, you have picked this open, I hope the bleeding stops soon for your sake. The board didn't make a decision because they didn't put it in writing to the bank as required, therefore there was no need to go back and revisit it.

Ahh the tough love continues, but I must say that I am learning a lot here on this forum and I appreciate all the great advice that I've been getting from each and every one of you. I have not contacted the association today either.

@ MelissaP: Not easy to move on when you've invested earnest funds into this so kind of hard to just throw all that away by walk away. So that is where still fighting the good fight Melissa, so help me fight the good fight, you have a lot of experience and I can sure use it right.

@ Brad: I am only trying to stay one step ahead of the board with the bank. Because one thing everybody on this forum can't guarantee is how the bank will react if they receive any type of notice from the association. They could back out or continue with sell, I just don't know what position they would take, so if I'm picking at the scab sort of speak, then at least let me have a band aid if necessary.

Mark,

As much as it pains me, I have to agree with Melissa on this.

The sale of this condo unit is contingent on the approval of the association. The escrow instructions should have a clause for dealing with this contingency and you should be able to get your earnest money back without a problem.

I keep wondering what is there about this particular unit that has you so fired up? My wife and I purchased a foreclosed home in Phoenix last year and there were hundreds of similar homes on the market. The home we ultimately purchased was actually the third one we made a bona fide offer on. Had our third offer been rejected, we would have continued to look.

This condo unit is not likely to be the only one on the market. If I were in your place, I would write this snotty place off and look elsewhere.

Mark,

I understand your frustration. In the process of buying a home the buyer usually gets stuck with fees for home inspection, appraisal, and termite inspection.

In this case, there was a third party in the process -- the condo association -- who threw a fly in the ointment. Your realtor should have advised you early in the process that the association had to approve your purchase. That would have allowed you to avoid paying for an inspection on a place where the deal was contingent on the association's approval.

Your situation brings back some bad memories of a home that my wife and I put an offer on in 1997. At first glance it looked great but the inspector found problem after problem, most caused by the fact that the house had been added on to at least four different times and none of the workmanship was any too good. We tried to back out after the first inspection but our own real estate agent gave us a song-and-dance that our offer was a binding contract. We spent a small fortune on roof inspectors and electrical inspectors before I found the clause in the contract that said after the first inspection we had ten days to back out without cause. We invoked that clause and walked away but our wallets were a little lighter for the experience. The money we spent on inspections was all lost but we did not get stuck with the nightmare on Vernon Street.

It hurts, but when the deal starts to go south the smartest thing you can do sometimes is just walk away.

It is a bank (Fannie) own property that is being sold through a vender for the bank I don't wanna spell the whole bank name out cause the posting rules say's not to use company names, but pretty sure you get who Fannie is.

The property is a foreclosure.

Mark,

I absolutely understand fighting for principal alone.

The question is - will it be worth it?

For illustration purposes: In recent thread two members (and trust me it happens in a lot of posts, that one is the recent one) have been attacking each other. They may have been correcting some mistakes they saw in each others postings. They may have believed they were able to show the other persons true character. The posting may have made them feel better. Other than that did it resolve anything? The answer is no.

Let's say that you win the pushing contest and purchase the property.

Yep, you showed them - they can't tell you where you can or can't live (again, I understand this principal and support it). Now you move in and, because human nature being what it is, you will likely be the target of any and all little violations of the rules and covenants you agreed to follow when you purchased the property but, like all of us, will likely violate some at one time or another. Perhaps you will be making too much noise when you move in. Perhaps you left personal property (your moving boxes) in the common area. Perhaps scrape a wall in the corridor (oops - damage to common area).

The individuals you will be forcing the issue with will be the same individuals who will be determining if you have violated a covenant or not. Yep you showed them. Now it's their turn to show you. I agree it shouldn't happen but when people are told they can or can not do something they tend to react instead of act. You are reacting to them telling you you can't live there (which I do believe is wrong) and want to show them your right. They may react to being told they are wrong by being their pet project so they can prove to you how right they were.

I ask the question again, is it worth it?

For every decision made there are consequences. Some of those consequences are intended some are unintended. The best anyone can hope for is to do enough research to make an informed opinion so there are fewer unintended consequences.

I could write that it's good to fight the fight based on principal alone (and sometimes it is). I could write to let the deal go and find somewhere else to live. The bottom line is, since I don't have to live with any consequences of the decision, it's irrelevant to advise you on what you should do.

Buy or don't buy the choice is yours alone to make. The purpose of my posting is to show you one of the possible unintended consequences could be if you decide to live there. What I write may or may not happen (I would hope it wouldn't but it might). I'm just pointing it out so you can make an informed choice.

So, will it be worth your time, energy, money and stress or do you want to place that time, energy, money and stress into another property?

As the question stated - is it worth it?

Tim

Larry has a valid point.

Mark,

My thinking was that the association has this approval rule that requires the buyer to apply. I doubt that the bank filled out any applications before it acquired title through foreclosure. The association has one of three options: 1) approve the sale; 2) disapprove and purchase the unit from the seller; or 3) disapprove and find an acceptable buyer for the seller.

Unless the bank applied to the association (unlikely) and the association approved, the association either had to buy the property or find a buyer. The terms of the sale at the foreclosure auction would have required the association to pay off the entire balance of the mortgage plus all the other fees due. Typically, the total due would run about 2-3 times what the same property brings post foreclosure. The price at auction would have been somewhere around $200,000 for a home now valued at $83,000. No one is going to pay that kind of money.

If the association did not follow their own rules when the last person acquired title, I see no legal way to impose it on the next buyer. The rule is dangerously close to illegal discrimination already and I see no way for the association to pick and choose who must apply and who may not.

An Association certificate? Never heard of that before. Most of the time there is NOT anything signed saying your in a HOA. Just informed your in one. Interesting.

Thank you Mark.

I've been planning on buying for a while now and have been researching and following the market closely for over two years. So figured the asking price from the bank was a bit high so I took a chance and gambled and it paid off.

Correction: **thank you Larry. lol

I say "certain individuals" because a person who has previously been convicted of a forcible felony would still be guilty of a third-degree felony if he is convicted of driving with a suspended license three or more times. However, if a person's license is suspended for any of the following reasons, the most serious punishment that he can receive is one year in the county jail.

Refer: http://www.justiceflorida.com/2009/08/articles/drivers-licenses-florida-law/suspended-license-law-amended/