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Subject: Florida 2018 HOA Fining Process. Watch out!
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Author Messages
RobertY4
(Florida)

Posts:17


06/07/2018 11:07 AM  
The latest HOA law passed by the Florida Legislature now increases the pressure on unit and parcel owners to pay up or lose your home! Board sets the fine based on managements citation on daily violations of $100.00 per day up to $1,000. 14 day notice to owner to appear before a committee of their peers. Committee votes yes to fine. Owner has 5 days to pay. 6th day it becomes delinquent, so violation is no longer a presuit mediation, but a collections issue. Fines $1,000 and over become a lien on the property and subject to foreclosure. Once the collections agency or attorney get on board to collect it runs up to much more. In Florida, pay your fine or you will lose your home. This all started in 2015. Now the lawmakers know how Dr Frankenstein felt when his creation got up and came after him.
GenoS
(Florida)

Posts:2288


06/07/2018 2:21 PM  
Posted By RobertY4 on 06/07/2018 11:07 AM
The latest HOA law passed by the Florida Legislature now increases the pressure on unit and parcel owners to pay up or lose your home! Board sets the fine based on managements citation on daily violations of $100.00 per day up to $1,000. 14 day notice to owner to appear before a committee of their peers. Committee votes yes to fine. Owner has 5 days to pay. 6th day it becomes delinquent, so violation is no longer a presuit mediation, but a collections issue. Fines $1,000 and over become a lien on the property and subject to foreclosure. Once the collections agency or attorney get on board to collect it runs up to much more. In Florida, pay your fine or you will lose your home. This all started in 2015. Now the lawmakers know how Dr Frankenstein felt when his creation got up and came after him.


Enforcement of fines was never subject to presuit mediation. That's only required before pursuing other remedies in court. An association's governing documents can authorize fines more than $100 per day and $1,000 in the aggregate.

The Frankenstein reference confuses me.
MelissaP1
(Alabama)

Posts:7534


06/07/2018 3:48 PM  
Most states don't allow fines to be the basis for liens/foreclosures. They do allow a HOA to fine and collect those fines. It's just not by using lien/foreclosure. Most likely has to be pursued in court. A different process.

Plus some HOA's will applied dues paid to fines owed. If they do that, then they can make it appear the owner is not paying their dues. Which that will allow the HOA to pursue lien/foreclosure for those unpaid dues.

BTW: Foreclosures STOP as soon as one pays the money owed. It is also a "stop the bleeding" step for the HOA and NOT a profitable one. So please stop the fear mongering of liens/foreclosure. They are legal legitimate reasons to collect money owed.

Former HOA President
GeorgeS21
(Florida)

Posts:440


06/07/2018 7:13 PM  
Agree with Melissa.

Frankly, MOST pay up situations occur when homeowners blow off their HOA and pretend they aren’t covered by the rules.
BenA2
(Texas)

Posts:525


06/07/2018 8:05 PM  
At least you are entitled to a hearing by a committee of your peers, which I assume means non-board members. The problem I have with HOAs fining owners is the lack of due process. For example, in Texas you are only entitled to a hearing by the board, who are often the ones who decided to issue the fine. I think there should at least be a hearing by a disinterested party in which the HOA has to prove the violation. I don't think the burden should shift to the owner to prove they did nothing wrong.
ArtL1
(Florida)

Posts:103


06/08/2018 6:10 PM  
Posted By BenA2 on 06/07/2018 8:05 PM
At least you are entitled to a hearing by a committee of your peers, which I assume means non-board members. The problem I have with HOAs fining owners is the lack of due process. For example, in Texas you are only entitled to a hearing by the board, who are often the ones who decided to issue the fine. I think there should at least be a hearing by a disinterested party in which the HOA has to prove the violation. I don't think the burden should shift to the owner to prove they did nothing wrong.




I'm not familiar with this latest change, but FS 720 has for some time mandated that in order to fine, the HOA has to have a fining committee of at least 3 members who have no connection to (familial or employee) the HOA's directors or management company.
GwenG
(Florida)

Posts:577


06/09/2018 7:42 PM  
The new laws mirror those already in place for HOA's. Usually, HOA's lag far behind condos/coops in getting laws but this year was different. These are not new laws for HOA's--only for condos and coops.

Bear in mind that fining authority must already be in the Covenants for statutory fining procedures to have effect. The statute defers to authority defined in the Covenants. Many assume that all HOA's have fining authority and that is not true. In the case of my HOA, there is NO authority to fine owners and the HOA has no authority to foreclose on a lien.

There have been two initiatives by boards in the past to pass an amendment to allow fining. Both times, the ballot failed. There seems to be an intuitive alarm system among the owners. I expect boards of the future will continue to try to pass an amendment to allow fining, in which case, we can probably expect another lawsuit at some point... (Such an "amendment" proposal would be a NEW, ADDED covenant-not an amendment to an existing one.)

Despite very weak and non-existent Covenants, my HOA is plagued by lawsuits for its attempts to ignore its own governing law with its own special version of reality.
RobertY4
(Florida)

Posts:17


06/09/2018 9:01 PM  
Your “fear monger statement” is totally uncalled for. One should study an issue before “going off on it”! We have 150 members with $1,000 fines due to over-reaching by a board rhat does not understand community living. All will be subject to foreclosure subject to Florida HOA law.
RobertY4
(Florida)

Posts:17


06/09/2018 9:13 PM  
In Florida, the state gave all HOAs the right to fine. The Governing Documents rule the amounts, if so stated. The fines may be over the legislated $1,000 again, if so stated. The only way an HOA cannot fine is if the GD do not allow it. Also in Florida there is HOA Law and there is Condo Law. Two distinct and separate laws. You can lose your home in HOA law to foreclosure.
MelissaP1
(Alabama)

Posts:7534


06/09/2018 11:23 PM  
And you can pay what you owe and keep your home... Just saying...

Former HOA President
JohnC46
(South Carolina)

Posts:7634


06/10/2018 4:08 AM  
Puy up deadbeat and the problem goes away.

RobertY4
(Florida)

Posts:17


06/10/2018 12:06 PM  
Here is the deal with for all that think they know it all! I do serve on the association fining committee. The agenda is two $1,000 fines for (among others) blue tarps protecting there homes, that leaked from our last hurricane. Some nitwits (seems there are plenty of those out there serving on boards) have no idea what it takes to go through securing insurance approval, getting quotes from vendors, securing permits, getting an OK from the associations architectural committee and finally scheduling the replacement in a timely manner. So here is the deal! The board of so called intelligent homeowners, has the authority to fill and replace fining committee board members. So if some committee members vote against the board's wishes, guess what? They get replaced!

So if you do not own a home, in the communes in Florida, you do not understand how runaway, incompetent board members operate. Even attorneys now have to have a "special" certification to be an HOA attorney in the sunshine state. So don't be so quick to judge an issue you know noting about! The vote by our legislators had one "no" vote to keep this stupid fining law from being passed. If you do not see the danger in this process, you have a real problem. It might come to your state next.

GenoS
(Florida)

Posts:2288


06/10/2018 12:50 PM  
Posted By RobertY4 on 06/10/2018 12:06 PM
The board of so called intelligent homeowners, has the authority to fill and replace fining committee board members. So if some committee members vote against the board's wishes, guess what? They get replaced!

In some HOAs I'm aware of the fining committee is ad-hoc in nature, not a standing committee. If fines are contemplated a committee is named for however long it takes to go through the process for that specific fine. Once the committee upholds a fine the board has nothing to say about it. If the board didn't want to impose a fine then why would they do so and send it to the fining committee for approval or rejection in the first place?

Those HOAs that fine generally don't need to impose a lot of fines in the first place. Having a standing fining committee sounds like a bad idea to me. Get friendly with them and you're home free with any violations? I'd firmly recommend that a fining committee be established ONLY when fines are being considered, to last only until the hearing. The committee makes its determination, which binds the board, and then stands down. Until the next time a fine is contemplated and then, hopefully, a new fining committee is established with different people on it.
MelissaP1
(Alabama)

Posts:7534


06/10/2018 2:38 PM  
I think we all here know a thing or two about bad boards... It's not a unique thing in HOA's. Again the simple fact and reality is that a foreclosure stops as soon as you pay what you owe. Is there any other concept than that? Why push the fear mongering of "You can lose your home for fines or some other crap". The reality you lose your house because you don't comply or not paying what you owe. All fault of your own making not legislation. If it was wrong for them to file a foreclosure or lien, then you pay it and then fight them in court. All the legal ways one fights this stuff not by going to their legislature.

Former HOA President
RobertY4
(Florida)

Posts:17


06/10/2018 4:01 PM  
Our board gets up to 150 violations subject to fining each month. They have no idea of the problems. It comes to them on a matrix, for a single vote. That is the initial fine. No hearing at that point according to our legislature. 14 days notice and you get to go to the fine committee composed of people who have no training and have probably never studied the Governing Documents, as opposed to board members who must either certify they know what the are doing, or go to training. Not so the fining committee. So you tell me how the heck the HOA is going to collect 200 K$ in fines with out pushing the envelope of foreclosure. Over reaching and unconstitutional. Don't know how all these $1,000 fines will be paid by homeowners after the attorneys and collections agencies get their additional 1 to 2 or 2 grand tacked on. Perhaps some will find an honest attorney who will break this party up. Almost 10% of our 3,000 owner have been fined. Starting July 1 the fines will become and operation of law after 5 days approval of the fining committee. Day 6 you will be delinquent!
Read it here! http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/Sections/0720.305.html
MelissaP1
(Alabama)

Posts:7534


06/10/2018 4:29 PM  
Wow you really have no idea... See the forrest for the trees much? Assumptions on many items. Lawyers getting all that money on fines? Fines being the basis of foreclosure? The fact that it could be these owners are being properly fined for their violations? What are those chances?

Once you calm down and dig into the reality versus blind rage, you may see the true picture... Much of which you have blown out of proportion or put into a proportion that not reality. Why are you fighting other people's fight anyways? If you want to do that, then get on the board. That is why the board does exist and all...

Former HOA President
RobertY4
(Florida)

Posts:17


06/10/2018 4:43 PM  
In case there is any doubt about the collection of fining assessments the Florida Legislature and our Governor also put the screws to homeowners in Florida with this little addition to the law.

Payment of HOA Assessments – § 720.3085

The application of payments in HOA law (first to the interest accrued, then to any administrative late fee, then to any costs and reasonable attorney fees, and then to the delinquent assessment) applies notwithstanding the Uniform Commercial Code’s regulations on restrictive notations placed on or accompanying a payment. 720.3085(3)(b), Fla. Stat. This is intended to clarify existing law.

The fine becomes a delinquent assessment on the 6th day after the committee meets and votes to approve the fine of $1,000. Not paid in X number of days, $25 late fee. 30 days starts accruing interest, 45 days goes to the collections attorney. Demand letter written, attorney fees add $150. No payment, next step lien and ultimate foreclosure. Ultimate sale of home and estoppel letter will show $2,000 to $3,000 before home may be closed. Yet the monster got up and came after Dr Frankenstein. Other states need to be aware of what their legislators can do to them out of complete ignorance. Oh yea, note the word notwithstanding. Credit fairness is out the window with that one.
JohnC46
(South Carolina)

Posts:7634


06/10/2018 4:51 PM  
10% of 3000 owners in violation does not sound like that many. I expect if we were a "tougher" BOD we could easily find 10% fineable. It does show your BOD is agressive as many need to be.
GenoS
(Florida)

Posts:2288


06/10/2018 5:10 PM  
Fines are supposed to be reasonable. If it's a flat $1,000 per fine no matter what the violation is, then sooner or later someone will challenge that. It's not unconstitutional. It's based on contract law and the Florida constitution holds contracts almost sacred. If you think board members have a leg up on committee members by virtue of their having attended a "board training" curriculum, I think you're mistaken. The "board training" requirement is a farce for the most part. At best, a few people will get something out of it.

An association with 3,000 homeowner members is insane. I think 300 is pushing it the bounds of what might be governed reasonably by directors acting in good faith. We've got 100 homes here. Our fear is that once we amend the CC&Rs to permit fines that we won't be able to find enough volunteers to be on any fining committee. We're pretty sure, though, that a few $100 fines will be enough to convince most people to follow the very reasonable rules that we have.
GwenG
(Florida)

Posts:577


06/11/2018 10:33 AM  




The state of Florida did NOT give ALL HOA's the right to fine; it provided a fair due process to HOA's that were authorized to fine. FL allowed foreclosure only where cumulative fines exceeding $1000 was authorized in the GD.

Many older HOA's, such as mine, are not subject to material alterations legislated by statute 720. My HOA was incorporated under FS617 and does not contain "Kaufman" language, which would allow future statutory changes to be incorporated into the HOA. Because the Kaufman language is absent, my HOA is essentially frozen to the statutes that were migrated from FS617 to FS720 in year 2000. It is, of course, subject to procedural, remedial and curative changes to FS720. However, it is NOT subject to statutory declarations which affect vested property rights (such as providing for fining authority where none existed before).
RobertY4
(Florida)

Posts:17


06/13/2018 11:25 AM  
Please don't rely on the so named "Kaufman Language". All HOAs were placed under FS:720. The key word in nonmandatory. If you are in an association because of deed restrictions, and are "mandated" to pay you are under FS:720. The Preamble to FS 720 (when passed in 2000) reads in part:

(3) Sections 720.301-720.312 do not apply to:
(a) A community that is composed of property primarily intended for commercial, industrial, or other nonresidential use; or
(b) The commercial or industrial parcels in a community that contains both residential parcels and parcels intended for commercial or industrial use.
(4) Sections 720.301-720.312 do not apply to any association that is subject to regulation under chapter 718, chapter 719, or chapter 721; or to any nonmandatory association formed under chapter 723.
When the developers ran askew with 617, they lobbied for a condo platform. That's when the owners started getting the short end of the deal.

720.302 Purposes, scope, and application.--

(1) The purposes of ss. 720.301-720.312 are to give statutory recognition to corporations that operate residential communities in this state, to provide procedures for operating homeowners' associations, and to protect the rights of association members without unduly impairing the ability of such associations to perform their functions.

(2) The Legislature recognizes that it is not in the best interest of homeowners' associations or the individual association members thereof to create or impose a bureau or other agency of state government to regulate the affairs of homeowners' associations. Further, the Legislature recognizes that certain contract rights have been created for the benefit of homeowners' associations and members thereof before the effective date of this act and that ss. 720.301-720.312 are not intended to impair such contract rights, including, but not limited to, the rights of the developer to complete the community as initially contemplated.

This is why so many HOA attorneys are play loose with the law, including liens. First there was not right to lien on fines, then if they were $1,000 or more, then off again (no ability to lien) now on again with exceptions that it had to be in the Governing Documents. Now all can fine but all cannot lien. No telling what will come up next year. The whole fining process is now based on an HOA "kangaroo court concept". Any attorney worth their salt could break this process, except they do not work for salt, they work for the HOA. They love the challenge, because win, lose or draw, they get paid. Since those same laws that were passed do not allow the DBPR to represent owners, the owners need a minimum of $3,000 to get any representation what-so-ever! Kaufman notwithstanding.

GwenG
(Florida)

Posts:577


06/13/2018 3:08 PM  
It is correct that all mandatory HOA's are regulated by FS720 which statute was created by a partition from FS617 in 2000. All 720 HOA's are bound by procedural and remedial amendments; however, as you noted per FS720, the new statute was never meant to impair the rights of a contract that was created prior to the Act. The Kaufman language supposedly fills the void where FS720 WOULD potentially impair a contract. If Kaufman language is present, then the intent of the members was that they "agreed" to be subject to both procedural and substantive changes to FS720. In the absence of an agreement to be encumbered by future statutory changes affecting vested property rights, HOA members cannot be lawfully bound by later material changes (such as adding a provision that all HOA's can impose fines).

This fining provision has been punted around a lot in the legislature by the lawyers and I agree that a good lawyer could break this fining fiasco.

Who are the stakeholders in pushing HOA's to lien/foreclose for fines? (Answer: the lawyers)

Kaufman is a legitimate tool for HOA owners to defend against abuse by HOA attorneys who attempt to change the contract without owner consent. Here is a link to an attorney blog on the subject as it applies to HOA: http://www.hoa-condoblog.com/EGBlog121117.html

Homeowners should remember that most disputes are settled out of court because of 1- the insistence of the insurance company to stop the bleeding and 2- the attorney "knows" the HOA has a weak case and it would cost too much to gamble with a trial and an appeal. In that case, the homeowner can get their attorney costs returned in the settlement agreement. Maybe new HOA homeowners should set up a bank account for a Legal Reserve of their own...
MelissaP1
(Alabama)

Posts:7534


06/13/2018 4:08 PM  
Wow... Blame the lawyers for the HOA ability to lien/foreclose/fine in a HOA? Really? Just wow... So how does one suggest other legal options (available to individuals and municipalities) to enforce rules and being paid? How abusive is that of a HOA to pursue a legal matter using a licensed authority to practice in the court of law to pursue lawful violations? HOA's are corporations. There options in court are 2 options. 1. Hire a lawyer to represent them in court. 2. Choose a member of the HOA Board to represent them in court. Which one are you going to choose to represent you as a member in a court of law? Mmm... A professional licensed lawyer or a "I googled it" individual?

HOA's abuse of power? A HOA only has as much power as it's members give it. You elect the board. The board hires the MC. Guess what? Their responsibility? To make sure whatever money they collect pays for the HOA expenses/collections and enforcing violations. They have to do it legally. What LEGAL options does one have? Lien/foreclosure/fines.

So to say a HOA should not have the ability to lien/foreclose/fine is saying "You can have this car but you can't have the gas to put in it". Liens/foreclosure/fines are also things an individual, contractor, or a city can do against someone who owes money or is in violation. Now your saying all of them can do this but not a HOA? Why? Because they pay a lawyer? Or that a lawyer is trying to make money off the HOA?

Oh and most likely the lawyer one is hiring? They probably live in a HOA. The judge in court? May live in a HOA themselves. Court can ONLY make one "Whole". So guess what? Liens/foreclosure ONLY get the money back and the money it cost to collect. Fines? Those are subjective and defendable in court. It's just a pain to have to fight them. It doesn't mean the HOA is wrong if they have the ability to fine. No one likes the punitive options of a HOA. It doesn't make it illegal or harassment. It makes it an OPTION to take corrective and enforcing of it's rules...

There had my tirade of the "They and Them" today...

Former HOA President
GwenG
(Florida)

Posts:577


06/13/2018 4:33 PM  
The subject of the previous comments was discussing Kaufman language as a possible defense against HOA fining abuse. How did this get morphed into "blaming lawyers" rant?

Lawyers ARE responsible for the multiple legislative Stops 'n Starts of the fining provision in the FL statutes. They write the provisions and lobby to get passage. Lawyers came up the hairbrained scheme to try to legislate fining for ALL community associations regardless of authority in the covenants. Lawyers get the blame for pushing HOA's to fine using the legislative process.
MelissaP1
(Alabama)

Posts:7534


06/13/2018 5:05 PM  
Lawyers are PAID professionals to REPRESENT someone. Lawyers work for anyone who will pay them to represent. Lawyers aren't just sitting around thinking "Let's make a law". They are working for the people who want laws made. Which are those individuals in HOA's who want HOA laws...

Your local and state representatives make the laws after they are requested to do so by people who want the laws made. Which are not lawyers. They are anyone who want a law created and go through the process.

Former HOA President
RobertY4
(Florida)

Posts:17


06/13/2018 6:12 PM  
I am sure Alabama HOA Statutes are different. But since I don't live there, I could care less. In Florida the Legislators make the law. If you look at the percentage of elected legislators, the majority are lawyers. Looks good on the resume I guess. I defy anyone to show me a lobbyist, who represents the stakeholders in any community, after turnover. Developers write their own Governing Documents and those documents are written by attorneys to protect the developers interest until they can sell enough or turn over the properties to the association. Individual owners can never equal the deep pockets of a mandated membership HOA. When the loser has to pay both attorneys fees, who do think gets the hurt put on them? HOA attorneys find a gold mine in representing HOAs, not homeowners. Now the lawyers or legislators find the pie slices so thin, they passed and industry requirement that attorneys now have to have a special certification to represent the HOAs and Condos. HOAs and Condo Associations are the gold standard for attorneys, management and bankers. All owners are advocating is some authority to represent them beside spending thousands of dollars on a ten dollar item.

Just so non-Floridians know, before any law suit can be filed, a homeowner must go through presuit mediation before a law suit can be filed. That is two to three thousand dollar item for a hearing on that ten dollar item. I consider the root of the term community as being derived from the root word communism. If you think the above is a crazy concept, in Condo associations, not to be confused with Homeowner Associations (two separated laws) the condo units pay four dollars a year for protection by the DBPR. Because of corrupt DBPR, there is so much money, the legislators of attorneys steal the trust funds for other uses.
RichardP13
(California)

Posts:2897


06/13/2018 6:13 PM  
Posted By MelissaP1 on 06/13/2018 5:05 PM
Lawyers are PAID professionals to REPRESENT someone. Lawyers work for anyone who will pay them to represent. Lawyers aren't just sitting around thinking "Let's make a law". They are working for the people who want laws made. Which are those individuals in HOA's who want HOA laws...

Your local and state representatives make the laws after they are requested to do so by people who want the laws made. Which are not lawyers. They are anyone who want a law created and go through the process.



Melissa

You have a lot to learn about about how laws are legislated. We know for a fact, based on the Tax Cut bill that was passed last year that legislators never read the bill. Same goes for the Affordable Care Act in 2010, no one read the bill before it was voted on. If they didn't write it, who did? The lawyers.

Small example, in something I was unfortunately involved in. The US Congress passed the 2008 Farm Bill, a 2500 page bill to help farmers. Somewhere in the middle of the night, just prior to the bill being voted on, a 2 sentence clause was put that had nothing to do with the farm bill but gave the Social Security Administration and its collection agent, the IRS the ability to collect on "overpaymnents" of benefits paid over 40 and 50 years prior, with no advance notice to the taxpayer. It wasn't legislators that dropped the language in, but lawyers.

Our Davis-Stirling ACT was crafted by lawyers, NOT legislators. Matter of fact, the two names on the bill, Gray Davis and Larry Stirling, made zero contribution. Willie Brown, who at the time, was the most powerful legislator in California gave Larry Stirling an assignment, come up with a bill, any bill, to earn your keep. The DSA was his third attempt on an acceptable bill to Brown. The first two didn't pass muster.
RobertY4
(Florida)

Posts:17


06/13/2018 6:28 PM  
My initial post was anti-fining. The discussion has morphed into several items that need to be discussed. The result of the Kaufman Language did not apply to an HOA, but rather to a Condo, Commercial deal. Florida Statutes have several different sections covering the various associations. Lots of interpretations going on but no case law on the application to our discussion I can find. If you do know of any please post it or them. The attorney involved in this tends to hype the action and it was his action, but not an HOA action. To me it is a square peg in round hole. It it does not fit you must acquit. Almost all Governing Documents from 1980 forward state all laws must be abides\d by in so many words or less. Beware if you murder your spouse you may get a fine of 1,000.
RichardP13
(California)

Posts:2897


06/13/2018 7:06 PM  
In California, the laws that regulate homeowner associations are the same whether you are a condo, townhome or PUD, which I believe it should be.

Having managed over 120 different properties in 10 years, I have seen some real abuses by Boards and Management companies and Attorneys. Under no circumstance, should a fine ever elevate to the point where a person can be foreclosed on. I don't have a problem with a lien being placed on a property because of a fine, but it can never move forward to a foreclosure. I saw in the news where a town in Virginia lost their town square over the size of one's political sign, for god's sake. We fine people for flying an American flag. Me personally, I would line up the people imposing the fine in front of a firing squad. 1.5M soldiers since 1776 have died so we have the freedom to fly that flag.
MelissaP1
(Alabama)

Posts:7534


06/13/2018 7:17 PM  
We had 1 flag at front entrance that is all. We are ALL Americans flying under 1 flag. Having your own flag does not make you more American. Plus there are rules of flying a flag properly. You can not control individuals who do not fly it appropriately. So who wants yards with improper flags flying? It looks worse to have tattered worn flags than 1 proper flag flown with proper light and condition.

Former HOA President
RichardP13
(California)

Posts:2897


06/13/2018 8:28 PM  
Posted By MelissaP1 on 06/13/2018 7:17 PM
We had 1 flag at front entrance that is all. We are ALL Americans flying under 1 flag. Having your own flag does not make you more American. Plus there are rules of flying a flag properly. You can not control individuals who do not fly it appropriately. So who wants yards with improper flags flying? It looks worse to have tattered worn flags than 1 proper flag flown with proper light and condition.



You know that was never the issue, it was power and some jerk(s) reading something in a document. Tomorrow, I fly 4 flags, a US Flag and one for the three branches of military that family members have served or are currently serving. Our National Anthem is about a flag that was blown to hell and a battle we lost.
RobertY4
(Florida)

Posts:17


06/14/2018 3:20 AM  
Flags and such whew!that's a good example of how HOAs, after turnover go nuts. The developer and his attorney write the Governing Documents to cover signs and sales by owner after then close and move in. The developer wants to sell His homes first. Prohibits signs and sales Paraphernalia in the documents. After turn over crazy boards look at that as anything an owner fly's. Interprets as no flags, violates and fines. Gets so bad the Florida Legislator have to pass a law allowing one us flag, Yeah! tell me about it.
MelissaP1
(Alabama)

Posts:7534


06/14/2018 5:15 AM  
I touched on this earlier but was on another electronic device. The thing about flags isn't that a HOA is "against flags". The issue is the lack of control of enforcing rules on flying and care of those flags. One thing I had discovered after going through my own "flag flying" experience.

We had an issue with the former lawncare guy/member. After we fired him, he got angry and removed his flag pole in the front entrance. Stating he had bought that pole/flag. Well EVERYONE was upset. So the HOA went and bought a new flag pole. It was installed and flag put up. Well then I get complaints almost immediately. Why? Because the Veterans in the neighborhood brought to our attention the "Proper way" of flying a flag. Had to go look this up and there is a bunch of "rules" for proper flag flying.

The major issue was that the Flag has to be taken down at Sundown and put back up at Sun Up. Well no one is going to do that every single day. So to get around this, you have to install a light to shine on it. So now the HOA has to pay a contractor and install a light to shine on the flag. Well then we find that flags do not last that long as if they get tattered must be removed. So 1 time a year the flag was to be replaced due to the condition for our area.

Well how does the HOA enforce these "Flag Rules" onto a home owner who wants to fly their flag? Does it have to be include in the rules? Well what if they are violating the rule by it being torn up? We demand it be taken down or fine. Well that puts the HOA on the news for being "Anti-flag". Well no. We just don't want a tattered flag hanging on the ground. Or better yet, someone may claim their tattered flag has sentimental meaning due a loved one's loss. Now what?

So flags are banned in HOA's mostly due to the fact that you can't really enforce the proper care without hitting an emotional nerve...

Former HOA President
GwenG
(Florida)

Posts:577


06/14/2018 7:34 AM  
@RobertY4: It is true that the case resulting in the Kaufman language decision involved a condo; however, the link I provided discussed how this principle could be applied to HOA. This was an "impairment of contract" question. There is (or should not be) differences in constitutional applications for all community associations which treat Declarations as contracts. In the reasoning applied in the case (Cohn vs Grand Condominium https://www.leagle.com/decision/inflco20091113205), three questions were asked to examine constitutionality:

The first question for the court to answer was: “Was the law enacted to deal with a broad, generalized economic or social problem?” The court answered the question in the negative as there was no explanation ever given as to why the “retroactive” provision was enacted.

The second question for the court to answer was: “Does the law operate in an area which was already subject to state regulation at the time the parties’ contractual obligations were originally undertaken, or does it invade an area never before subject to regulation by the state?” The court answered the second question in the negative. When The Grand was organized in 1986, the Condominium Act was in effect. However, legislation regarding mixed-use condominiums did not come into existence until 1995. Because of the specific language in The Grand’s Declaration stating that it was subject to the terms of “the Condominium Act of the State of Florida in effect as of the date of recording this Declaration,” the Supreme Court found that the amendment did not apply to The Grand.

The third and last question for the court to answer was: “Does the law effect a temporary alteration of the contractual relationships of those within its coverage, or does it work a severe, permanent, and immediate change in those relationships irrevocably and retroactively?” The court found that the amendment would be “severe, permanent, and immediate.”

The constitutional basis for applying the Kaufman language will likely be applied to any community association in a future legal dispute. There has not YET been a case (to my knowledge) of an HOA being brought to task using Kaufman language but it seems very possible that this will happen at some point. That inevitability is essentially what this attorney opines ie that HOA's should amend documents NOW to incorporate this language in their documents. (Incidentally, this attorney is quite active in the FL legislature, blogs and conducts board member training certification and would be glad to bill HOA's for the service of updating GD. And, if you fail to amend, the attorney will be glad to represent you in court, as he did in the original case ).
RobertY4
(Florida)

Posts:17


06/15/2018 2:41 AM  
GwenG, you are right on the money with what is being spread about. Kinda like an attorney looking for a case. Based on the premise there are more than enough potential violations out in Florida. Our associations are pre 720. The docs allow for officers to be paid for their services in operating the association. The current law does not allow officers and board members to be paid under 720 not under the guise of the CAM law. Those were changed to establish and industry of managers and attorney to reap the whirl wind of the money tree. If what is being touted as a possible case were true, why hasn't an association moved forward with some action. There are hundreds of items that are 617 that are overridden by 720! The HOA senior is our state is one of the most corrupt groups around, second only to the Condo scam.

Just like the no flying of the flag scam. Written by builders to protect their sales, yet interpreted by novice board members as including patriotic flags, promoted by the association attorneys as an interpretation of harassing the owners after the builder leaves. Of course no one wants to see a string of triangle flags on a rope, but a couple of flags on the garage is not a violation. So stupidly bad the legislators had to pass a law to allow the American Flag to be flown.
RobertY4
(Florida)

Posts:17


06/15/2018 2:46 AM  
GwenG
(Florida) Opps forgot to say that the no flag rule is usually in the Gov Docs. Does that meant that the flag law could also be invalid according to Kaufman?
RobertY4
(Florida)

Posts:17


06/15/2018 3:00 AM  
MelissaP1
(Alabama) You miss our point on Flags. Florida had to pass a law to allow a homeowner to fly and American Flag on their home site. You mention common area association rules, which means the association can do anything it pleases and the members rule at election. The Vets were right. I am talking about the right for a homeowner to fly any lawful flag. The issue got so bad in Florida the one guy flew a Nazi flag to get the attention in the papers. That at least, bad as it was, moved along the legislators to pass a law that owners had the right to fly THE flag and install a vertical flag pole. Don't forget 9-11 brought out the best in flag flying and any HOA president would have to ride the rail out of the community.
JenniferG11
(Texas)

Posts:381


06/15/2018 4:10 PM  
Posted By MelissaP1 on 06/07/2018 3:48 PM
Most states don't allow fines to be the basis for liens/foreclosures. They do allow a HOA to fine and collect those fines. It's just not by using lien/foreclosure. Most likely has to be pursued in court. A different process.

Plus some HOA's will applied dues paid to fines owed. If they do that, then they can make it appear the owner is not paying their dues. Which that will allow the HOA to pursue lien/foreclosure for those unpaid dues.

BTW: Foreclosures STOP as soon as one pays the money owed. It is also a "stop the bleeding" step for the HOA and NOT a profitable one. So please stop the fear mongering of liens/foreclosure. They are legal legitimate reasons to collect money owed.




I don't understand what you mean by the 'stop the bleeding' step is not a profitable one. And I'd like to because enforcing late fees and fines and liens and such are items on our table right now.

MelissaP1
(Alabama)

Posts:7534


06/15/2018 6:57 PM  
I am keeping this in SIMPLE form as much as possible because of variables involved. Foreclosures are a stop the bleeding step for a HOA. The fact is the owner owes the HOA dues money and not paying. Let's say they owe the HOA $5K. The HOA files a foreclosure. The house sales at auction. That means the $5K is paid by the bidder as part of the process. That means that made the HOA "Whole" for the $5K it was owed. (Court can ONLY make one Whole NOT a profit). Now that owner that owed the money is now gone. The new owner now takes over and has to pay the dues from now on. It's like the property has been "reset".

Now, one should never ever foreclose on a home that the bank is already foreclosing on. The bank gets paid first and foremost. Even in a HOA foreclosure. If the bank was owed money as well, then the bank gets what it is owed and the HOA gets what is left over. There are a few states with "Super liens" but that just puts the HOA on the same level as the bank as for payback if any money available.

Now the first bid goes to the HOA for $1 over what is owed. However, the HOA doesn't want to own the home. There are those rare occasions but 99% of the time it's a bad idea. That is because the HOA has to win the bid. If the house still has a mortgage, then the HOA has to pick up that mortgage payment. The house may need some serious repairs. That means the HOA has to pay for them. The HOA still has to pay the HOA dues. If they rent the home out, then they are now landlords. If they sell the house, then they have to pay the taxes on any profit and realtor fees.

So unless your HOA can afford house payments, dues, and repairs it's best NOT to own the home. Plus there is in some states a 1 year redemption period. Which means the house can't really be touched as the owner can come back, pay what is owed to take the house back. So any improvements could be some wasted money.

In the end your just stopping the bleeding. You don't have someone who chronically bleeds the HOA out of it's money.

Former HOA President
JohnC46
(South Carolina)

Posts:7634


06/16/2018 8:24 AM  
We have never done a foreclosure and the more we look at it, the more we believe that it is not worth doing.

Not sure I agree with the stop the bleeding as we are still not collecting dues how would that stop the bleeding? The only way it would is if there was money enough to pay the association's lien which in the foreclosures we have had (bank originated), there was never enough left to pay off our lein.
GenoS
(Florida)

Posts:2288


06/16/2018 8:51 AM  
This is rapidly becoming a useless thread.
MelissaP1
(Alabama)

Posts:7534


06/16/2018 9:46 AM  
JohnC... It stops the bleeding because your HOA STOPS spending money chasing after bad. The HOA no longer has to keep paying a lawyer, placing liens, or spending money toward collection processes. The non-paying owner is now gone. Which is where the HOA is BLEEDING MONEY to keep chasing. Unless one likes to keep chasing their tails.

Former HOA President
JohnC46
(South Carolina)

Posts:7634


06/16/2018 2:25 PM  
Posted By MelissaP1 on 06/16/2018 9:46 AM
JohnC... It stops the bleeding because your HOA STOPS spending money chasing after bad. The HOA no longer has to keep paying a lawyer, placing liens, or spending money toward collection processes. The non-paying owner is now gone. Which is where the HOA is BLEEDING MONEY to keep chasing. Unless one likes to keep chasing their tails.




The only chasing (cost) we do is $120.00 for a letter from our attorney saying a lien has been filed for past dues and it will cost the amount of dues owed (including late charges and interest) plus $400.00 for attorney fees, and if not paid, credit bureau reporting and foreclosure will follow. We have never taken one to foreclosure.

Our worst offender went 4 years before foreclosure by their bank. In that was $2,400.00 in dues to the association, $120.00 for the letter, $1,200.00 in late fees and interest, and about $1,500.00 in legal fees. No one collected a penny.

Late fees and interest aside, we were out $2,520.00. $2,400.00 in dues plus $120.00 for the letter and we still never went the foreclosure route.

RobertY4
(Florida)

Posts:17


06/19/2018 3:20 PM  
Yes, everyone has opinions. I posted this as a warning/discussion about Florida Law and the changes coming up on July First. Hoping someone could suggest a good direction for the Kangaroo Courts. Untrained people will be interpreting the Governing Documents lead around by their proverbial noses. Hell, even board members have no idea what they are reading, let along understanding it! The attorneys are rubbing their hands, hoping an owner will file for a presuit mediation before the fine takes affect. Of course in a perverse way, that would be good, but where is the hard working stiff or retired owner going to get the where with-all to file. And find a HOA attorney willing to get on the books as anti HOA. I am certified by DBPR as a volunteer mediator for Condos. If a HOA owner ask for any type of local conflict resolution by mediation, the board thinks it has to go to presuit mediation for a frick'n garbage can.
MelissaP1
(Alabama)

Posts:7534


06/19/2018 3:29 PM  
Johc exactly... You most likely won't collect a dime via a foreclosure. However, your STOPPING losing more dimes. Remember when they don't pay that is another drop of blood from the HOA. It's a hole being dug. IF your HOA were to collect via a foreclosure/lien/lawsuit judgement it is just FILLING a HOLE. Or what I call "Stopping the bleeding".
A HOA does NOT make a profit from a foreclosure/lien. It just gets the money it's owed.

A foreclosure ALWAYS STOPS as soon as the person who owes money pays what they owe. They can come to the day of the auction at the court house square and put the money in the hand of the HOA. Plus some states there is a 1 year right of redemption. They can still pay what is owed plus any improvements done to the home, and get the home back. Foreclosures are of one's own making NOT the HOA's. They just process them...

Former HOA President
JanetB2
(Colorado)

Posts:4151


06/21/2018 11:36 PM  
Posted By RichardP13 on 06/13/2018 6:13 PM


Small example, in something I was unfortunately involved in. The US Congress passed the 2008 Farm Bill, a 2500 page bill to help farmers. Somewhere in the middle of the night, just prior to the bill being voted on, a 2 sentence clause was put that had nothing to do with the farm bill but gave the Social Security Administration and its collection agent, the IRS the ability to collect on "overpaymnents" of benefits paid over 40 and 50 years prior, with no advance notice to the taxpayer. It wasn't legislators that dropped the language in, but lawyers.


The Farm Bill has become a Trash Bill. This bill is so large and the major one where Legislators will hide their back scratching garbage. It is definately one to keep an eye on when renewed.
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Forums > Homeowner Association > HOA Discussions > Florida 2018 HOA Fining Process. Watch out!



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