Special assessments on individual owners

Started by JoeC6 • 20 replies • 2930 views

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JoeC6 (Florida)
Posts: 11

Posted:

In Florida is it legal to apply a special assessment on specific owners. This would be to charge the owners for maintanence of thier property. We have a number of abandonded properties where the landscaping is completly overrun

KirkW1 (Texas)
Posts: 1,665

Posted:

Regardless of where you live you will need to check your documents to see if they give you the rights to do the maintenance at owner expense. They should also address what fines are imposed (if any).

You may also want to check with your city code enforcement to see if they can/will help.

JoeC6 (Florida)
Posts: 11

Posted:

we have a self help section in our ccr's. It allows us to do the work and require the owner pay. The way Florida statutes are it would be better to have an assessment which follows the land then a fine which is really unenforcable when the property is sold. Most of these homes are in forclosure or bankrupcy. So the special assesment route would be better. Just wondering if special assesments can be applied to seperate units or do they have to be across the board.

DwightT (Idaho)
Posts: 664

Posted:

I don't know about Florida law, but our CC&Rs have this:

"Limited Assessment" shall mean a charge against a particular Owner and such Owner's Lot, directly attributable to the Owner, equal to the cost incurred by the Association for corrective action performed pursuant to the provisions of this Declaration including interest thereon as provided in the Declaration.

So you would file a Limited Assessment, not a Special Assessment.

However, as has been mentioned here several times, in a foreclosure all assessments against a property from before the date of foreclosure are typically extinguished, so that may not help.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Joe, I don't think it would be a "special assessment," but rather reimbursement for money spent to remedy a violation.

In most CC&Rs of which I'm aware, it's not possible to charge different assessment rates, or apply special assessments just to certain owners.

All homeowners are assessed the same amount.

Our CC&Rs do allow us to collect whatever money we have spent to correct a violation.

See if that is something yours allows. In which case, it's not an assessment, but a direct expense billed to them.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Michele,
If I tnterpret our documents right, our BOD has authority to correct any infraction that connects this problem with the common property. I would believe that would extend to the obligation of the owners to keep their property up to a set of requirements as cited in the owners acceptance to live in the association.

Dwight does raise a point, althought I don't think this particular subject should be involved with fines, how much weight does a fine carry on an owner if he sells his property or forecloses or what ever. Can the Regime step in at closing or sale and expect to be satisfied, provided any money is left to be distributed. Does this also require a legal lien to specific the money owed for fines?

KirkW1 (Texas)
Posts: 1,665

Posted:

There is no magic formula that will always make sure you receive the money. If you have a lien in place and the home is foreclosed, you will only get your money if there is enough money to first pay all taxes and the first mortgage holder.

Also, don't assume that an assessment is the only means of placing a lien on the property. In Texas for instance, an HOA can not place a lien on the property for fines alone. But if the HOA has taken corrective action (such as mowing a yard), then the cost of such action can be the basis of a lien.

Before embarking on a corrective action though you would be well advised to consult your attorney. Sometimes an hour of his/her time is well worth it even if it isn't cheap.

CharlesW1 (Georgia)
Posts: 826

Posted:

JoeC6,

I agree with much that has been posted thus far. Although, I would strongly encourage (if not done so already) to file a lien, prior to proceeding with “self-help”. Here in the great state of Georgia, we can (and have) file liens when the fine amount has exceeded $300.00. Then “if” the violation isn’t corrected WE WILL PROCEED WITH SELF-HELP OR A SPECIFIC ASSESSMENT.

In my subdivision our covenants mentions of a “specific assessment” basic damage to the common property, by a specific individual. However, our covenant also mentions “self-help” which has come in handy in many situations when the lot owner fails to comply in a timely manner.

I feel that the standard “fining” process should be implemented, immediately! However, there comes a time when fining a lot owner doesn’t resolve the problem and then the BOD MUST takes care of the situation. ( i.e. self –help)

YOU GOT TO DO, WHAT MUST BE DONE!
Rectify the problem within reason. I would exhaust every option; with the lot owner prior to resorting too “self-help” That’s just my own personally opinion, though.

Chuck W.

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Charles E. Wafer Jr.

JoeC6 (Florida)
Posts: 11

Posted:

In Florida where this is happening. The state statutes have gone through a massive change in the past several years as they pertain to HOA's.
At present the only thing that an HOA can lien on a property for is unpaid assessments and fees associated with them. Interest, penalty, attorney fees, PM costs etc. The assessment follows the land so if the current owner does not pay and the house is forclosed on the bank or any future owner is responsible for the money. The only way out is bankrupcy. Fines can be levied against an owner but cannot be used as a lien on the property. They are however paid before assessments when money comes in. The fine can also be used to obtain a judgement against an individual in small claims court. We have a number of vacant homes that have weeds 3 feet high and gardens that have completly died. Looking for the best way to at least chop it all down at the least cost to the association with hopes of getting some money back sometime. That is why a special assessment would work better then fines because it would get paid sometime when the house is sold.

MicheleD (Kentucky)
Posts: 4,491

Posted:

. . .

Except that most likely you cannot assess different homeowners different amounts.

But to be sure you need to read your governing documents to see if they allow for targeted special assessments.

I'm guessing "not," but I've been wrong before.

And it isn't a FINE if it is reimbursement for expenses incurred to correct a violation.

Can HOAs in Florida file "mechanic's liens," because that is more closely what that sort of classification it would fall under: doing professional work and ensuring payment for that work.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Joe,' Given what has been said on this thread so far, and you seem to be a little more document conscious about all this, you got any idea of how, if possible, these explanations would be consolidated to mean something to a person inquiring about the subject. I suppose the question is: "How does a HOA or whatever cut it's loses from;
a. filed liens
b. Fines
c. Personalized assessments for specific violations
d. Mechanics liens
e. Foreclosure court procedures
f. Collect amounts for back assessments of all kinds.

Maybe we are just out of our relm and should turn it all over to a lawyer and a collection agency. A hard thing for me to consider. One other thing seems relavent and this whole thing is probably State specific.

JoeC6 (Florida)
Posts: 11

Posted:

I guess you have to really walk a fine line with what the law says and how you proceed to correct problems in the community. A lot of this is state specific on what you can and can NOT do. If it is in the CC&R's and is not in conflict with existing State & Local laws then you should be able to proceed. For example in Florida an HOA has the right to file a forclosure on a property for unpaid assessments. There are proceedures that have to be followed before it can be filed. If you get to the point of fileing the documents with the court and you find that the bank has filed do you really want to proceed with yours at that point? Probably not because when the bank takes ownership they owe you the assessments ( In Florida ). On the other hand if it is a fine that is owed we cannot forclose on the property ( Like in other states ) but we can get a judgement against the person(s) and then give that to a collections agency. Be sure to include collection and attorney fees in the judgement.
On another note I just went back and reread for the four thousandth time our CC&R's and found that the cost of self help can be applied as an individual assessment. This is good because we can now proceed ( with caution ) on getting these properties cleaned up

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Joe and all,
I want to thank you all for your unselfish giving of your time and energy, not to mention smarts. From reading a lot and looking at the diversity that actually runs (or better, guides) these Hoa's, etc., I have to conclude we can reference chapter and verse of some state or local statute and read our CC&r's to death and maybe find ourselves changing our minds because of circumsatance dealing with like issues, and then shelving that aspect, and go to the next crises and the next and every so often revisit a old subject and find we have a new conviction. Funny I just finished an e-mail that quotes modern statesmen of the 20th century, and I think it was Winston Churchill that said. "In a changing sea, we must guide the Boat, not drift, but quide the Boat to Port.'

Sort of applies with associations, the sea is ever changing and someone must guide the ship from port to port, and never let go of the helm.

Man, that is as heavy as I get for at least a month.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By JoeC6 on 07/05/2008 4:51 PM
I guess you have to really walk a fine line with what the law says and how you proceed to correct problems in the community. A lot of this is state specific on what you can and can NOT do. If it is in the CC&R's and is not in conflict with existing State & Local laws then you should be able to proceed. For example in Florida an HOA has the right to file a forclosure on a property for unpaid assessments. There are proceedures that have to be followed before it can be filed. If you get to the point of fileing the documents with the court and you find that the bank has filed do you really want to proceed with yours at that point? Probably not because when the bank takes ownership they owe you the assessments ( In Florida ). On the other hand if it is a fine that is owed we cannot forclose on the property ( Like in other states ) but we can get a judgement against the person(s) and then give that to a collections agency. Be sure to include collection and attorney fees in the judgement.
On another note I just went back and reread for the four thousandth time our CC&R's and found that the cost of self help can be applied as an individual assessment. This is good because we can now proceed ( with caution ) on getting these properties cleaned up

Joe our documents also allow us to assess against a particular unit to recover fees used to remedy a violation and lien the property for the same. Before you do it however I would discus it with your HOA attorney to make sure it is still doable under FL law and to make sure it is done in a proper manor to protect the HOA.

Studies show that 5 out of 4 people have problems with fractions

KathyT2 (Florida)
Posts: 22

Posted:

Our code enforecement can't get into a property for at least 45 days after its posted, weeds are waist high by then. Our attorney has advised us to pay the landscaper to do the initial cut and keep the lawn under control and bill it to the property. Mandatory HOA's in Florida have to get an estopple letter prior to closing and we just add all the costs onto the estopple. This only works if the property is vacant, bank owned, pre foreclosure or in foreclosure. The bank is so glad its getting off their books they don't quibble and the property looks good during the process for the rest of the HOA. Our attorney says its legal....its just a bit of a bookkeeping problem. This doesn't work so well if the house isn't for sale but they don't usually have lawn problems.

DwightT (Idaho)
Posts: 664

Posted:

How do you handle empty houses where the power has been turned off? We could hire a service to go in and mow the lawn, but with no power, the sprinkler timers don't run and the lawn just dies. Short of having somebody go in and manually turn on the sprinklers every couple of days, are there any solutions?

KathyT2 (Florida)
Posts: 22

Posted:

we;re in Florida where it rains pretty much every day this time of yearl

DwightT (Idaho)
Posts: 664

Posted:

What is this 'rain' of which you speak?

Frankly, I wish more people around here would just use more native plants, but that's a completely different topic.

KirkW1 (Texas)
Posts: 1,665

Posted:

I would bring the question up to the attorney. Their job is to know what you can and can't legally do and how to protect yourself.

JohnC34 (Florida)
Posts: 1

Posted:

Our CC&R's here at WaterSound Beach Florida define "special assessments" as assessments against all owners. Assessments against specific lots or specific neighborhoods within the whole community are known as "benefited assessments" according to our CC&R's.

Benefited assessments can only be charged for "costs". KEYWORD "COSTS INCURRED". If benefited assessments are levied properly, they are lienable.
If they are improperly levied, they subject the community to a slander of title suit by the affected owner.

As always, I believe you look first to your CC&R's and then be sure to check and see if your decision conflicts to Florida Statute. It's not as complicated as one would think. Our Statute in Florida for HOA's is Chapter 720. All Florida Statutes are online. http://www.flsenate.gov/statutes/index.cfm?App_mode=display_statute&URL=Ch0720/ch0720.htm

SureshD
Posts: 268

Posted:

One of the HOA's burdens to be considered here is the "notice of violation" procedures.

Meaning that this overgrown foliage, or similar, issue is/was first a violation then seemingly escalated to the point of considering intervention. Before proceeding to correct the violation(s) by a third party, let alone attempting to charge the owner or property, one is obliged to provide due process via the notice and hearing requirements.

This may be futher complicated by additional requirements that the "work" to be done while trespassing be limited to remedy an emergency situation or one which will prevent imminent loss of life or property.

BTW: Fines owned can now be liened in Florida with conditions.

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