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Subject: Taking privilages from deliquent home owners

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RobertB20
(Florida)

Posts:25

08/01/2008 8:40 PM
Can an HOA Board stop home owners that are in the rears by large amounts on their maintenance quarterly payments from using the community swimming pool, tennis courts and exercise center?? We the majority are now paying for the minority that refuse to pay but are still enjoying all that our community has to offer. We are slowly becoming a welfare community.

GlenL
(Ohio)

Posts:1362

08/01/2008 9:58 PM
If your documents allow it you can suspend use of amenities after a hearing and voting privileges if the member is 90 days in arrears. 720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights; failure to fill sufficient number of vacancies on board of directors to constitute a quorum; appointment of receiver upon petition of any member.-- (1) Each member and the member's tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against: (a) The association; (b) A member; (c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and (d) Any tenants, guests, or invitees occupying a parcel or using the common areas. The prevailing party in any such litigation is entitled to recover reasonable attorney's fees and costs. This section does not deprive any person of any other available right or remedy. (2) If the governing documents so provide, an association may suspend, for a reasonable period of time, the rights of a member or a member's tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate unless otherwise provided in the governing documents. (a) A fine or suspension may not be imposed without notice of at least 14 days to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed. (b) The requirements of this subsection do not apply to the imposition of suspensions or fines upon any member because of the failure of the member to pay assessments or other charges when due if such action is authorized by the governing documents. (c) Suspension of common-area-use rights shall not impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park. (3) If the governing documents so provide, an association may suspend the voting rights of a member for the nonpayment of regular annual assessments that are delinquent in excess of 90 days. (4) If an association fails to fill vacancies on the board of directors sufficient to constitute a quorum in accordance with the bylaws, any member may apply to the circuit court that has jurisdiction over the community served by the association for the appointment of a receiver to manage the affairs of the association. At least 30 days before applying to the circuit court, the member shall mail to the association, by certified or registered mail, and post, in a conspicuous place on the property of the community served by the association, a notice describing the intended action, giving the association 30 days to fill the vacancies. If during such time the association fails to fill a sufficient number of vacancies so that a quorum can be assembled, the member may proceed with the petition. If a receiver is appointed, the homeowners' association shall be responsible for the salary of the receiver, court costs, attorney's fees, and all other expenses of the receivership. The receiver has all the powers and duties of a duly constituted board of directors and shall serve until the association fills a sufficient number of vacancies on the board so that a quorum can be assembled.

RobertR1
(South Carolina)

Posts:2076

08/01/2008 10:35 PM
Robert, Glen has given you chapter and verse how to do it. Living in Florida with the huge numbers of HOA, etc., I would be hard pressed to belive your documents don't give some directions. Hold on for the Florida HOA documents expert Donna, she will be around I am sure. In the mean time utilize the capabilities of this site. Check Florida governing documents on the search feature on the main discussion page. You would have a hard time wasting your time using that search feature. Their are also links on this site that have gobs of information. A word to the wise, don't go looking for specific answers, they could be there but most of the time it is putting together bits and pieces that you will use to solve your problems. No substitute to knowing your subject. Of course your members and Boards are charged by state law to serve the association in a fair and equitable manner. Right out of the gate your mandate is to be fair. If your Board allows your unfair condition to exist, they are violting their own trust and ignoring the state law. No doubt that would be a misdeed that the courts would correct. But you are a community, and the courts look favorably with those association that solve their own problems and have supported this kind of action time and time again. How to do this is in a combination of your documents, all of them, not for profit corportion laws of Florida, and state laws. The longer your association allows this practice to continue the worse your loss. fine them, lien their property, bar them from any communitity services, don't hound them, abuse them, or even converse with them, and if they don't like it let THEM sue the association. They are smart enough to know how to get something for nothing, they will be smart enough to abide by their signed agreement. Put a policy in place immediately, even if it means walking across the street or a few blocks and stopping in at another condo, HOA, and asking to copy theirs.

AnnaD2
(Florida)

Posts:320

08/02/2008 5:02 AM
Glenn is correct Florida State Statutes Homeowners 720 do allow for this. But if its a condo, governed by Statues 718, it isn't addressed at all. Which really stinks. We have an owner here (condos) that hasn't paid maintenance fees for over a year (foreclosuer/bankruptcy) and it boils people's blood watching them prance around, using the pool, and having their friends over to use the pool as if they don't have a care in the world.

RW1
(Florida)

Posts:145

08/02/2008 5:20 AM
Don't overlook the first few words of paragraph 2 in the FL. Statute cited above: "If the governing documents so provide..." Without such a provision in your docs. 720 will do you no good.

RobertR1
(South Carolina)

Posts:2076

08/02/2008 5:30 AM
AnnaD, This is not a new subject and I can't quote accurately about all of it, Donna probably could. But in any event, what you describe(aside from the "Blood boiling", which is irrevelant. should be coveredin the search section and will be specific for Florida. On the off chance that you can't find answers, why not write your own. Shouldn't take much effort and should be a snap to get approved. Then let the transgressors sue you and pay to see what the judge says. Keep it simple and reasonable and restrictive with no loop holes, and I bet he/she would approve it. If it comes to that, and it won't, he's in foreclosure you say, what is he going to do, beat you all to death with his foreclosure papers. Stand up, write him a letter, and give him the bad news, and set a deadline, and if he transgresses, call the cops, it's not his property, it belongs to all of you, protect it.

RW1
(Florida)

Posts:145

08/02/2008 7:08 AM
Remember none of this is legal advice. In the real world this will take effort, time, and money to pursue. Possibly in the order of months depending on how well your Assn. is organized. To start you must have the appropriate verbage in your documents, committees in place, and volunteers to "man" the committees. (the Effort) All steps must be completed accurately or risk a technicality voiding or further delaying the process. (the Time) You can't simply "write your own" document(s) and expect the owner and especially the police to honor it. This is a CIVIL matter. A "their word against yours" scenario. Unfortunately an accountants report showing negative balances is not enough for the Police. Nor should you phsically prevent him from entering the pool area without subjecting youself to PERSONAL legal (if not physical) recourse. To truly prevent unathorized use you will need: a court order, someone (preferably a team or group) willing to monitor the pool and call the police (and provide the court documents to them). I'm not trying to discourage the enforcement of docs. but merely making realistic explanations of what it takes as part of the mix here. Of course I know "the rules are the rules" and should be enforced, but often time the costs far outweigh the returns. Besides he will eventually be foreclosed (as mentioned here) and then be gone anyway. with no cost to you

RobertR1
(South Carolina)

Posts:2076

08/02/2008 8:29 AM
RW, I echo your concerns about legal advise. I do not support the supposition that a Licensed Incorp is without teeth. That pool is private property under the legal control and responsibility of the the Board as legal representative of the association and charged with protecting the property. I would imagine you even have some sign listing restriction about the pool and the Board is noted as authority. It may have and should have some notification that it is private property. If someonbe in arrears with their fees (over a year!)is condoned by the Board the right to use those common facilities, how vulnerable is the board to attack because they are not fullfilling their legal mandate. And a lot of states acctually encourage HOA to sole their own problems, and they can write legally enforced rule for their property. A case example. You are walking across a field and come to a fence. The fence is posted NO TRESPASSING....Posted. You cross the fence and you seem to want to say the fact that the owner bought the sign at the 5 and 10 store it has no legal authority. People have been shot legally for less. The Board can notify these people they are no longer allowed to use the common facilities because they have reneged on their signed consent to pay association dues and abide by association rules and laws. They can be served a restraining order to exclude them. I know what you are trying to say, I think, and that is do not place yourself or the association in harms way, and you are right as rain, but it can be done, has been done, and happens everyday, in someway or other.

RobertR1
(South Carolina)

Posts:2076

08/02/2008 8:37 AM
RW, I would add: Do you know of any foreclosed property in a condo that owed money to the regime and the regime came out of it all with no monetary loss? Also, our documents state and yours might that anytime the Board cannot collect the legal assessments in total, then that deficit has to be pro-rated among the others remaining owners and collected. Sad but true. I never heard of it being done, but I bet it has. Our board just forgets it, and you know they don't have the authoity to just "forget it."

RobertB20
(Florida)

Posts:25

08/02/2008 9:02 AM
thank you for the advice you are passing on to me. Our community has a swipe card that allows home owners to enter all the ammenities, pool,tennis,exercise center, library etc, could the Board just cut off entry to all of the above by just cutting off the card electronically??? I don't see any thing in our Rules&Regulations, By Laws, and Doc's. How ever Ive been told its in #720.305?? But I say if there in the arreaers take their privilages away, inform them in writing and stop them electronically, put their names in our quarterly community news letter and post their names in the club house and let them take us to court, if they don't have the monies to pay their maintenance let them find the money to take us to court I doubt they will and then they can't use their swipe card to use our ammenities. whats the worse that can happen a Judge informing us to recind our actions and allow this person the common ammenities again??? Thank you all for your responses

RobertB20
(Florida)

Posts:25

08/02/2008 9:12 AM
Thank You for adive and reply. However its if not in our Rules and Regulations. By Laws and Docs what is the next step that must be taken?? I was informed by our Board it can't be done because it doesn't say it can in #720.????

RobertR1
(South Carolina)

Posts:2076

08/02/2008 9:31 AM
Chris, Don't under any circumstances, put their names anywhere, why would you want to do this? That is not solving your problem. Your Board is dragging their feet and need to ask "How can we solve this problem?" instead of "We don't know how to do it." If nothing else and you are so void of orginal concepts, take it to a lawyer and tell him to solve it. Surely you all do not believe you are unique in Florida to this problem with Foreclosures running rampant. Have you looked at the search section on this site? The answers are out there. If all else fails, issue new amentity cards and stipulate anyone in arrears will not receive a new one until they are current and paid up, Then they will have to sue you if they want a card, and you just them them they cam have one when they qualify.

RobertR1
(South Carolina)

Posts:2076

08/02/2008 9:33 AM
Sorry, misnmed, should be Robert instead of Chris.

RW1
(Florida)

Posts:145

08/02/2008 9:45 AM
Electronic security makes it very easy and virtually free to restrict access. That's in your favor. However doing so without proper authority (from your documentation and/or a Judge) makes you liable. Not neccessarily culpable, but liable. Again this will take time, effort, and expense. It is not a perfect world, it is not a fair world. Enjoy the discussions here but seek legal council before doing ANYTHING suggested here. Sincerely...

GlenL
(Ohio)

Posts:1362

08/02/2008 9:57 AM
Posted By RobertB20 on 08/02/2008 9:12 AM Thank You for adive and reply. However its if not in our Rules and Regulations. By Laws and Docs what is the next step that must be taken?? I was informed by our Board it can't be done because it doesn't say it can in #720.???? Robert I posted 720.305 above note the phrase If the governing documents so providesince your documents evidently do not have this the only way would be by amending your documents to allow it.

RobertB20
(Florida)

Posts:25

08/02/2008 10:06 AM
Thank You I now will go before the Board and our Community and request our attorney review and inform us on how to place this in our Doc's legally and ASAP

RobertR1
(South Carolina)

Posts:2076

08/02/2008 12:21 PM
To all, Again, check this subject out on SEARCH feature above. There is valid information there. Then scroll down on left side of this page and click on CAN, then CAN block in middle of page, this will take you to CAN/HoaTalk joint effort and there is tons of good stuff there, good place to start and to reference. I say again, this is a common problem and there are people dealing with it every day. If your Board can't or won't, think about election time and get your grass roots efforts up to speed.

RobertR1
(South Carolina)

Posts:2076

08/02/2008 2:39 PM
To RW and all, Note above in referenced to unpaid assessments in SC. Below clippedfrom Florida Statutes 2007, 718.115 (g) If any unpaid share of common expenses or assessments is extinguished by foreclosure of a superior lien or by a deed in lieu of foreclosure thereof, the unpaid share of common expenses or assessments are common expenses collectible from all the unit owners in the condominium in which the unit is located. **************************************************** That means the condo takes a place in line to collect money owed. First in line is all Banks, lenders and such. In a foreclosure, how much do you think will be left over for condo. Probably the reason they are in forclosure is they are upside down in their mortgage. So if nothing else lien the property for unpaid assessments, that at least give s you standing. Also, when you lien the property, get the lawyer to restrict the entry to any amenities such as pools, golf courses, spa, tennis courts, etc. I also have no doubt there are easier ways to restrict those in arrears. What I don't understand is why the Board can't resolve what can be, in these economic times, a dangerous precedent. By taking no action at all they are opening the door for more trouble to build up. What have they done through-out the years when people were delinquent, did they really skate by without losing money? Even if you handle foreclosures right, you will probably lose money.

RW1
(Florida)

Posts:145

08/02/2008 3:20 PM
True, however F.S.718 only applies to condominuims. The OP said he is in an HOA.

VictorW
(Kansas)

Posts:14

08/02/2008 3:54 PM
One of our eleven members decided that he would not pay his dues because we wouldn't sell him an empty lot next to his home. Our documents state that "only HOA members can use the lake and members must pay their dues." I sent him a copy of the document with the above sentence highlighted and a certified letter stating that he would be trespassing if caught on the common area. He paid his dues the day he received his letter. At our next meeting, the board drafted more detailed steps and consequences on delinquent dues. We thought that since we were all neighbors that everyone would always pay their dues. Luckily we had one small line to protect the other ten. Now members lose lake privileges the day after the due date for dues and have thirty days to pay up or they lose their vote, too. Eventually, the HOA will withdraw their shares in the HOA and they will have to buy them back but we cannot place a lien on their property.

EllenS1
(Florida)

Posts:350

08/02/2008 6:23 PM
Robert, If your docs are like ours you sure can. Haven't you looked into your covenants?

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