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DonnaS
(Tennessee)

Posts:2945

03/11/2006 7:36 AM
We are a new,197 home developement in Florida using Statutes 720 for H.O.A.s We are having a difficult time enforceing covs and by-laws because of the lack of a clear direction as to procedure from our Docs. The Property Manager says that fines and then trying to collect them is difficult and costly because of going to small claims court. I say "Fine them under the State guidelines and then go right to the lien process" rather than bother with small claims court. I know the state process for fining and limits is weak in Florida but it is all that we have. So, is it fining and then liens or bother with small claims court. Donna S.

HaroldS
(Arizona)

Posts:904

03/11/2006 9:49 AM
Good thing you aren't in Arizona Donna with that attitude. Here you do need a judicial judgment for fines before you can file a lien. (There is an automatic lien for assessments until paid.) Did I miss something in your post about a hearing between the fine and the lien? ("I say Fine them under the State guidelines and then go right to the lien process.") So you can just skip due process? Good luck. Harold

DonnaS
(Tennessee)

Posts:2945

03/11/2006 10:14 AM
Harold, Of course the Due Process has to be followed. But for abreaviation of the letter, it was not included. We have to do the letter thing 2 times, if not in complience then the violator must appear before the B.O.D. so that they can give him the option of complying or being fined . If he chooses not to comply, then in Fl, we can fine up to $100.00 per day with a maximum of $1000.00. which to some people means nothing. This is where we get stuck. Now do we do small claims court which means an Attorney and not knowing if we can collect or starting the lien process. Either way we have to pay for leagal representation. Liening is my option because it is a surer way of retrieving our Association costs.

BarbaraK
(Florida)

Posts:30

03/11/2006 7:37 PM
Donna: I am in an HOA in Florida also. In order to fine, you must send a registered letter to the person stating the statute they are violating. The fining committee must be 3 people who are NOT board members or family members of anyone on the board. The committee sets up a date with the person to hear the person's reason for the violation. Then they decide whether to fine or not. They then send a letter to the person notifying them of their decision. If they decide to fine, be aware that Florida passed a law in 2005 that says you cannot place a lien on anyone for nonpayment of a fine. You can only lien for nonpayment of an assessment. This makes it very difficult to collect the fine. You can find all the Florida Statutes 720 online. They are very specific on what you can & can't do. Good luck

LuciusD
(Colorado)

Posts:139

03/12/2006 10:29 AM
Now that sounds like a statute written to specifically address abusive and arbitrary fining and liening.

HaroldS
(Arizona)

Posts:904

03/12/2006 11:42 AM
Great information Barbara! So what is your mechanism to collect fines? I like the idea of a none board 3 party non board related group doing the fining. In Arizona, unless you go thru judicial process and make it a lien, fines cannot even be collected at close of escrow on a sale. Only judicial liens and the automatic assessment lien can be recovered at escrow - and not even the management company's transfer fee either. That doesn't preclude an HOA from sending all outstanding charges including the transfer fee to the escrow agent and the escrow agent will probably withhold that amount. It is the seller's responsibility to challenge the charges, and of course that would hold up the sale and that is what the HOA is banking on a seller not wanting to hold up a sale. Harold

DanielL
(California)

Posts:5

03/13/2006 7:32 AM
FYI - In California you have to send written notice as to what the fines would be for certain violations. But after that you can fine away I believe.

DonnaS
(Tennessee)

Posts:2945

03/13/2006 8:13 AM
Okay everyone, We have done ALL of the steps in trying to get these guys to comply, including all of the letters, etc. All the way up to the Florida State Statutes, everything has failed. including manditory State mediation with the Omsbudsman. Now our options are go to small claims court or lien them for failure to pay the "special assessments" which is what their maximum fines became after failure to pay them. Our Docs allow us to make fines, "special assessments after we become unable to collect the fines. So, what is a surer way to recoup our expenses--small claims court or lien.

AudreyB
(Florida)

Posts:104

03/13/2006 1:04 PM
Donna, It seems to me, your HOA doesn't have an atorney working and helping your HOA with this important issue, and they should have one. Even if you have a management company, your HOA should hire an attorney. The attorney should take care of filing the lien and send out a certified letter to those homeowner's who are refusing to pay their assessments informing them of the lien and request payment forthwith. This makes it legal and proper for these homeowner's who still do not pay. If necessary, the attorney files the court paperwork for the court date. This why you pay your monthly or yearly dues for things like this. Audrey

RogerB
(Colorado)

Posts:3724

03/15/2006 7:28 AM
Donna, do a search for Rules and Regulations on Delinquent Assessments. I have posted an example of procedures we use. We have a record of 100% collections without litigation. I suggest you first look at what can be done to improve your collection process, if that doesn't correct the delinquencies, then lien, then try for arbitration, and only when absolutely necessary authorize litigation in trial court or small claims court depending on the situation. There are pros and cons of going to small claims court vs. trial court. Also, several have commented that an attorney is needed to file a lien. That may be true is some states however in Colorado an attorney is not required. We file the Notice of Lien and the Release of Lien. However, owners must be given written notice at least 30 days prior to filing a lien. Treat people the way you want to be treated; advise them in advance on the rules; provide variances for unusual circumstances; have the incentive of exculating costs in steps for delinquents accounts. And delinquencies will be minimized. Good luck, RogerB

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

DonnaS
(Tennessee)

Posts:2945

03/15/2006 8:01 AM
Thank You Roger, We have 2 guys with pick-up trucks who refuse to put them in the garages overnight. We did the warning letters, then appearances before the Board, then manditory arbitration. 1 guy moved his trucks off of the property and the other one went full steam ahead for a court hearing which we are waiting for to be set by the Judge. Now because number 2 guy still has his truck out, number 1 guy has brought his back. The association lawyer has done as much writting as he legally can. The problem is that we are a new developement with very limited funds for lawyer fees. The community does not want the trucks out but also does not want to have a special assessment to pay for legal fees. What can we do next? That's why I asked if liening them would work.

RogerB
(Colorado)

Posts:3724

03/15/2006 9:29 AM
Donna, a lien not require them pay promptly. But if your Declaration allows garnishment of wages and foreclosure on the property, then payment can ultimately be obtained by litigation. Some attornies can be employed for as little as a $50 retainer and will defer being paid until after court action is completed. Do you have Rules and Regulations on Enforcement of Covenants and Rules which includes a fine schedule and payment for cost of litigation? It could esculate their costs to the point where they want to comply. Following is an example: Rules and Regulations on Enforcement of Covenants and Rules In order to maintain property values, safety, and quality of life for Owners and their families, the Association enforces restrictions itemized in the Declaration (Covenants) and in Rules and Regulations. Covenant enforcement involves monitoring for compliance, notifying Owner’s of violations, and requiring violations to be corrected. The Property is monitored weekly by the Managing Agent for Covenant and Rules compliance. Owners can also report problems to the Agent and may request anonymity. The Agent will investigate and shall photograph potential violations. A Demand letter will be sent to the Owner advising of the violation, the controlling regulation, a time limit for correction (typically 10 days), and if the Owner does not agree with the cited violation, their right to appeal by request a Hearing before the Board of Directors. To dispute a cited violation the Owner shall immediately submit a written request for a Hearing. Upon receipt of such a request, a Board of Directors meeting will be scheduled and arguments heard. The Owner shall be mailed a Notice of the Hearing date, time, cited violation, and sanction. At a Hearing the Owner will be allowed to present a statement, evidence, and witnesses to support their position. After the Hearing the owner will be advised in writing of the Board's decision. When a violation is not corrected within the specified time limit in the Demand letter or specified by the Board after a Hearing, an initial fine of $50.00 shall be assessed. If a violation remains uncorrected, subsequent citations may be issued and the fine will be doubled compared to each previous Demand letter. If additional Demand letters are issued for the same violation within 12 months the initial fine shall be $100. Ultimately, when necessary the Association shall get a court order to correct the violation and will effect the corrections required. The Owner shall be assessed for all costs involved. This will include, but is not limited to, the costs to correct the violation, fines, fees, attorney fees and court costs. Following are Rules and Regulations which clarify or supplement restrictions listed in the Declaration (Covenants): 1) Modifications to the exterior of property are encouraged; however modifications do require prior written approval by the Architectural Design Review Committee (DRC). Please check with the DRC if you are not sure whether a change constitutes a modification. Failure to get prior written approval can result in removal or redoing plus a fine. Approval shall include consideration of a pleasing appearance which is in harmony with other property in the subdivision and consideration of how the modification may affect neighbors and property values in the neighborhood. 2) In accordance with provision of Senate Bill 05-100 amendments to the Colorado Common Interest Ownership Act, one political sign per candidate or ballot issue is now allowed on your property within the time period of 45 days before until 7 days after an election. No sign may exceed 36” by 48” or less if specified by a City of Lone Tree Ordinance. Also, the American flag may be displayed when the display is consistent with the Federal Flag Code; and a service flag may be displayed by an owner whose immediate family is a member of an active or reserve military service. The only other signs allowed are one real estate sale sign and a home security sign. 3) Landscaping shall be maintained in a neat and attractive condition, including periodic watering, fertilizing, trimming, pruning, removal of weeds, and replacement of landscaping when necessary. Xeriscaping is now allowed under SB-100, however the Xeriscape plan must be approved by the DRC. Variances may be issued during drought conditions. 4) Vehicles are in violation when parked in the street except for brief visits of a couple of hours. Vehicles shall be parked in the garage and only when the number of cars exceeds the number of parking bays in the garage is parking allowed in the driveway. Garage doors shall be closed when not in use. It is a violation for trailers, boats, motor homes or other type recreational vehicles to be parked in view except for temporary loading and unloading. Notwithstanding these rules, in compliance with a new (2006)Colorado statute, qualified emergency vehicles which weigh less than 10,000 pounds and display an official emblem are not prohibited from parking in the street if they do not impede the safe and efficient use of streets. 5) Household pets must be under control on a leash when not secured in the house, in a fenced yard, or an invisible fence with a functioning electronic collar. It is a violation for an animal to threaten or attack a person or another animal; the Owner shall be responsible for all costs if any medical treatment is required. Excrement shall be cleaned up immediately. Pets that bark or make other noises which irritate neighbors are a violation, except for brief barking of dogs as people pass by. 6) Installation of satellite dishes and antennas, notwithstanding the Over the Air Reception Devices Rule adopted by the FCC pursuant to the Telecommunications Act of 1996, shall be erected in such a manner as to be hidden from the street or other neighbors view, if this can be done without unreasonable delay or increased cost, and does not preclude the reception of an acceptable quality signal. 7) Trash and trash receptacles shall not be visible except during trash collection times. Trash shall be placed near the curb after dark the night before collection and containers shall be removed promptly after collection. 8) Portable basketball stands shall be located in a manner which keeps players and balls away from the sidewalks and streets. 9) It is the Owner’s responsibility to remove snow from sidewalks within 24 hours and generally to keep their sidewalk clear and clean.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

HaroldS
(Arizona)

Posts:904

03/15/2006 9:41 AM
I guess I'm dense, but a few posts back Barbara from Florida says, "be aware that Florida passed a law in 2005 that says you cannot place a lien on anyone for nonpayment of a fine. You can only lien for nonpayment of an assessment." Yet everyone continues to advise Donna to lien. Donna said her documents allow them to change unpaid fines to a special assessment (very strange!) which should indeed be lienable. But is it? Does changing the name of a fine to something else really circumbvent Florida law? A fine by any other name still smells like a fine to me. (forgive me!) Donna should know that Florida law trumps her documents. It seems one of the two offenders is hell bent on going to court. If Donna is so sure of her documents, why doesn't she find a lawyer on contingency who will accept the case and be satisfied if he wins and gets awarded his payment from the truck guy so that the association won't need a special assessment to pay him? Or isn't it such a strong case after all? Harold

DonnaS
(Tennessee)

Posts:2945

03/15/2006 12:04 PM
Roger, Thank You for the input. Our Protective Covenants are weak as for how to handle these homeowners who will not comply after all has been done according to the law. What I have been searching for is "what do we do after everything has be followed according to the Statutes and law and we still get no resolution?" Your information as to how to strengthen the Documents is very appreciated and will be used to aide in clarifying our very weak Protective Covenants. Hopefully, we will then have the ability to deal with future situations like this.

BeckyW
(Florida)

Posts:26

04/02/2006 10:34 AM
Donna, We too are an HOA in FL and our statutes state that fines must be imposed by an independent, minimum 3 member committee - not the BOD (sec 720.305 2a). As for collecting - the homeowner is notifed of the fine and the amount is added to their balance due to the Association. Unless their check clearly states that the check amount they pay (based on their mailed quarterly statement which would include the fine), the payment is applied to the balance due in order of charges - which usually pays off the fine first. Talk to your management company and good luck!

HaroldS
(Arizona)

Posts:904

04/02/2006 12:31 PM
the payment is applied to the balance due in order of charges - which usually pays off the fine first... talk to your management company.>>> Why is your board allowing the management company to make decisions on applying payment? It is to their & the attorney's advantage to collect the fines first so they can recoup any costs and legal fees and then still be able to foreclose on the property because the assessments are thus delinquent. Precisely why in Arizona that is not allowed. Any payment received here MUST and should be applied first to outstanding assessments. That's because unpaid assessments can be foreclosed, while fines and fees cannot. We must get a judicial judgment before we can place a lien for a fine. Unliened fines cannot be collected thru close of escrow either. Harold

JohnM3
(Florida)

Posts:208

04/08/2006 3:24 PM
Somebody is sure in love with Attys. Folks every state has its own laws independent of other states. I have been on the BOD for 14 years, 5 as the Treas in Florida. Reference the Fl Law 720. Somebody is giving you false info. The system is : step 1. 3 independent hearing persons not on BOD say fine member. step 2. You must hire a state certified Arbitrator.($200 per hr minium of 4 hours per hearing) Step 3 Then you go to Small Claims Court and try to colect as in Florida you cannot lien for special assessments only for normal monthly assessments.(Lawyers fees $250 per hour) Step 4 You appeal in court ( Trust me you loose) Remember the Judges live in HOAs also. If all this is over 2 trucks forget it it is just gonna make the lawyers rich. Get past this nonsense. Do you have any idea what a disaster you are running into? We had a huge sink hole and went to court over the issue with pictures to prove it we were awarded 2.5 million dollars, 1.8 million went to lawyers, surveyors, expert witnesses, underground testing and faxs charges telephone calls. The log book of charges is 35 pages long single spaced. Remember every time you call the lawyers it is $250 per call,plus every time a member calls the attys its $250 it is $5 per fax page, it is $200 per 2 page document All this money over 2 pick up trucks? Do you really want to do this . If I was your Treas I would say there are better ways to handle this issue.For instance see if you can find a atty dumb enough to take this case on contingency. Keeping in mind you may get stuck paying the attys fees as they always put a rider in the agreement to that effect in Florida.

JohnM3
(Florida)

Posts:208

04/08/2006 3:28 PM
You can also write your own rules as far as good and proper order within the community without changeing the docs but the entire board must help they cannot say thats not my job. Every time anyone sees a violation you send the member a registered letter and set up a paper trail on all members or you will never win. Florida has a law about selective code enforcement be very carefull if you go after the trucks then you better be prepared to go after every dumb violation that occurs or you are guil;ty in florida of selective code enforcement.The fine for that is stagerring 5 digits long.

SamuelB
(North Carolina)

Posts:83

04/09/2006 5:39 AM
Donna, in an attempt to answer the question "you" asked, instead of moralizing the situation, our HOA would use the lien process over the small claims court process. Our laws in NC are not quite as stringent as in Florida (we had a former FL board member on our board) however, we are getting there. In Donna's defense, it's easy to say forget it, they are only trucks, until a unit owner comes to a board member and says "It's a violation and I want you to fix it". Then it's up to the board to (sometimes) become creative; legal, but creative. Amazing how it all works out sometimes; like all rules violators no longer have access to the facilities (Pool, pool house, etc). Keep in mind the board member has promised to serve "all" the homeowners and the homeowner complaining is just as important (if not more so) than the violator.

I fly because it releases my mind from the tyranny of petty things . . . - Antoine de St-Exupéry

DonnaS
(Tennessee)

Posts:2945

04/09/2006 7:05 AM
Thank You, Samuel, This is not something that our Board decided would be a "fun" thing to do. A few homeowners complained to our Board that these trucks were in violation. We tried the letter and mediation thing. Still no compliance. The complaining homeowners threatened to sue the Board as the Board have a fidicuary obligation to enforce the covenants. They hired a lawyer and threatened such action against the Board unless enforcement was started. The Board was between a "rock and a hard place". Owners complaining, owners not complying and basically, the 3 truck owners thumbing their noses at the process. We have just finished our State mandated mediation and now we have to go to court, more than $16,000 later. My stand is that if you don't want to have rules to follow, then don't buy into a deed restricted community. We don't need that kind of attutude to live with.

CharlesW1
(Georgia)

Posts:820

07/18/2006 5:57 AM
DonnaS, I’m new to this discussion board. I just got around to reading all the responses that others have given you. I agree with what you said in your last post. I’m going to be running to be on the board in less than a week. I’m trying to educate myself as much as possible. As a homeowner, I have been to many of the meetings. I have heard that our community has many delinquencies. The current BOD says they are doing everything they can. They may be. But I think we should foreclose. I wouldn’t want to be the one responsible for them to loose their home because of not paying their yearly dues! They don’t know what else to do. I was thinking……We are a community that is now about 5 years old, we could make yearly dues, quarterly. Four times a year instead of once a year. I’m thinking this will help the delinquent homeowners to be able to pay their dues easier. Will this work? I have heard that the current BOD is looking into the process to become a POA instead of an HOA. Maybe this will help. I don’t know. Are you still dealing with the delinquencies? I’ll take any suggestions you or anyone has about collecting delinquent dues. Appreciate your post. It’s informed me as well Thank you Chuck W.

Charles E. Wafer Jr.

WilliamT
(Arizona)

Posts:489

07/18/2006 6:33 AM
Charles, Our annual dues are payable monthly by check with a coupon book which we furnish, or through Surepay, an electronic debit from the homeowners checking account; whichever system they opt for. We have very few delinquincies, and none go over 60 days. Monthy is very convenient for us. Bill

CharlesW1
(Georgia)

Posts:820

07/18/2006 6:41 AM
Bill, I’ll look into that for our BOD. I’m not entirely ready to dive into being on the board with what I have read, so far! Wow, 60 days! I wish that was our case but I know some homeowners are delinquent, months even years. Thanks for your suggestion Chuck W.

Charles E. Wafer Jr.

DonnaS
(Tennessee)

Posts:2945

07/18/2006 6:48 AM
Chuck, Thru legal counsel and the Florida Statutes, we have finally got our enforcemnt going in a usable system. The Statutes allow a H.O.A. to place a lien on properties who do NOT pay their assessment to the H.O.A. We pay quarterly assessments. We have had several who fell behind, not because of money problems, but because of obstinance to the system. After the second letter, requesting payment of their dues, they are then given notice that the Association is proceeding to place a lien on their property until which time they pay in full. We had to allow 2 resident to go on the monthly payment plan and that is working so far. These quarterly dues include cable T.V systems to the homes so they will not be allowed to get away with non payment. Fines for violations, etc. in Florida may NOT be cause for a lien on a property but creative wording in our Documents has a system that fines, thru much paperwork, can be transfered to a "special assessment" against a property, thus it becomes a lienable property. Try to charge your assessments to a quarterly system and that makes it easier to swallow. No owner is exempt from payment. The good people deserve relief from the slackers.

CharlesW1
(Georgia)

Posts:820

07/18/2006 6:59 AM
I agree totally! I do think that quarterly will give relief to many of well deserved good people of my neighborhood, like myself! I’m glad to hear things are under control for you now. Thanks for the information. Chuck W.

Charles E. Wafer Jr.

JulieS
(Georgia)

Posts:412

07/18/2006 7:25 PM
Our annual assessment is due in two installments with the final being paid by April 1st and late after the 10th. Notices go out at the end of Decmeber, early January. If someone would like to break their payment down into three or four installments, that is fine as long as the entire amount is paid by 4/1. Our experience is that one or two people may be going through a rough time and we accept payment options for those wanting to make arrangements. We find that most of our delinquent accounts are those who never pay and do not intend to pay. We have some folks right now who have not paid in years due to the lack of aggressive collections. These are also people who try to get around the system, file bankruptcy and go through foreclosure. It is best to be aggressive before things get out of hand.

DonnaS
(Tennessee)

Posts:2945

07/19/2006 4:23 AM
Julie S. That's right, we have to stay on top of these people who feel that they are exempt from the rules. 99% of all homeowners want to do the right thing. In life, there are 2 roads to take. The ones who refuse to pay, don't obey other rules in life either. Thank God that they are few. I would aggressively persue all non-payments. The amount delinquent is paid by the good folks and the association is always having to make up for the non payers. In Florida, an Association can take away a homeowners use of all common and recreational facilities for non payment and they may not be on the Board or vote. The only thing you cannot remove is the resident ability to ingress and egress his property. I don't know if you have these kinds of facilities .

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