JasonS8 (Florida)
Posts: 3
Posts: 3
Posted:
Hi, I am a board member in FL. Our board is considering deactivating the gate cards for delinquent owners. I figure, if you don't pay, then you can't come in. I think if anything then this should work.
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Gate card deactivation for delinquency
Started by JasonS8 • 25 replies • 4295 views
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SureshD
Posts: 268
Posts: 268
Posted:
It would work to get you into big trouble!
See paragraph (2)(c) below... (from Florida Statutes 720 (HOAs))
720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.--
(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. A member prevailing in an action between the association and the member under this section, in addition to recovering his or her reasonable attorney's fees, may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation. This relief does not exclude other remedies provided by law. 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 fine shall not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney's fees and costs from the nonprevailing party as determined by the court.
(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.
See paragraph (2)(c) below... (from Florida Statutes 720 (HOAs))
720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.--
(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. A member prevailing in an action between the association and the member under this section, in addition to recovering his or her reasonable attorney's fees, may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation. This relief does not exclude other remedies provided by law. 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 fine shall not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney's fees and costs from the nonprevailing party as determined by the court.
(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.
JasonS8 (Florida)
Posts: 3
Posts: 3
Posted:
So its illegal, but who enforces the law, I mean whats the delinquent owner going to do, call the police?..an attorney?..I mean if they can't afford to pay their dues then I doubt they can hire an attorney. I've heard of other condos doing this and working on collecting dues..Thanks for reply.
JackB8 (Virginia)
Posts: 141
Posts: 141
Posted:
These folks you are talking about may not have the money to pay their assessments, but I can assure you they will not need money to get an attorney to sue your HOA for a violation of the law. Talk about Fair Housing laws and access to ones home being denied and attorneys will fall in line to sue pro bono. Use the law to get your assessment money - don't break the law to get yourself sued.
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
Jason,
Suresh just posted what I was intending to. It is against the law to lock someone out, plain and simple. The State Attorney General can come down in a big way against the HOA. Then you would be responsible for the court costs as well as the missing dues. Not a very wise thing to try.
You can block their access to common grounds and amenities like pool, clubhouse etc, but NOT entry to the developement.
JasonS8 (Florida)
Posts: 3
Posts: 3
Posted:
Darn it! its so frustrating!..but thanks to all of you for your replies.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Jason,
You must remember that, as a board member, you have a fiduciary resp to act in the best interests of the assn, and breaking the law -- whether there is a gov agency to enforce it or not -- is not acting in the assn's best interests. And, if that delinquent h/o does decide to take you to court over this your D&O ins will not cover your legal costs because you knew you were breaking the law. There are many board members who operate outside the law thinking a member won't take them to court -- don't be dumb by being like them.
You must remember that, as a board member, you have a fiduciary resp to act in the best interests of the assn, and breaking the law -- whether there is a gov agency to enforce it or not -- is not acting in the assn's best interests. And, if that delinquent h/o does decide to take you to court over this your D&O ins will not cover your legal costs because you knew you were breaking the law. There are many board members who operate outside the law thinking a member won't take them to court -- don't be dumb by being like them.
KarenT (Washington)
Posts: 249
Posts: 249
Posted:
Quote:
Posted By DonnaS on 07/20/2010 4:36 PM
Jason,
Suresh just posted what I was intending to. It is against the law to lock someone out, plain and simple. The State Attorney General can come down in a big way against the HOA. Then you would be responsible for the court costs as well as the missing dues. Not a very wise thing to try.
You can block their access to common grounds and amenities like pool, clubhouse etc, but NOT entry to the developement.
Jason,
Suresh just posted what I was intending to. It is against the law to lock someone out, plain and simple. The State Attorney General can come down in a big way against the HOA. Then you would be responsible for the court costs as well as the missing dues. Not a very wise thing to try.
You can block their access to common grounds and amenities like pool, clubhouse etc, but NOT entry to the developement.
What if the development has a private road, i.e., not city, county or state maintained, but maintained by the HOA. Couldn't you deny access if it's a private road?
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
Karen,
If you mean a private road owned by the association, the delinquent member is still a member, aka part owner of that road. There are no reasons that an association can lock an owner out of accessing his home. There are other options for the association to take like fining, forclosure and leining. Take the right road and forget the Old, Old West type of attitude . His home is NOT yours to keep out the bad guy.
JohnB26 (South Carolina)
Posts: 1,569
Posts: 1,569
Posted:
JasonS8:
You are showing your gross incompetance/stupidity by even THINKING of taking this action.
Personally, I might be inclined to take other than legal action (through third parties) against the person who locked me out of my home.
Food for thought.
You are showing your gross incompetance/stupidity by even THINKING of taking this action.
Personally, I might be inclined to take other than legal action (through third parties) against the person who locked me out of my home.
Food for thought.
JohnB26 (South Carolina)
Posts: 1,569
Posts: 1,569
Posted:
please read the above reply VERY CAREFULLY before taking action or showing disapproval
pers opinion
might = in the realm of possibility, like pigs flying one day
other than legal = civil or criminal ?
pers opinion
might = in the realm of possibility, like pigs flying one day
other than legal = civil or criminal ?
JackB8 (Virginia)
Posts: 141
Posts: 141
Posted:
Johnb26. Jason came to this forum, as I have in past, to get help from professionals. To me, stupid questions cannot be asked in this forum. "Other than legal" means retribution in a physical sense - it does not include civil or criminal. Civil and criminal actions are legal actions. You know also that pigs flying is not in any sense of the word in the realm of possibility. Why not just apologize to Jason (surely you were having a bad day)- you are not usually one to slam others - less he go elsewhere for help?
LoriL1 (Florida)
Posts: 78
Posts: 78
Posted:
As you can see from my few limited posts, I come here primarily to see how others handle issues and to gain knowledge that I can use as a Board member.
I would like to thank you JackB8 for speaking up in defense of Jason. JohnB26 was way out of line with his comment about stupidity!
I would like to thank you JackB8 for speaking up in defense of Jason. JohnB26 was way out of line with his comment about stupidity!
JohnB26 (South Carolina)
Posts: 1,569
Posts: 1,569
Posted:
I apologise for using "stupid", the incompetance speaks for itself.
Should you be locked out of your home illegally, how would YOU feel?
Should you be locked out of your home illegally, how would YOU feel?
JackB8 (Virginia)
Posts: 141
Posts: 141
Posted:
John. I would absolutely not like being "be locked out of my home illegally" and I'm glad I live in a country where laws protect me be providing a system of due process. The bottom line of all this though is that this forum provides a resource for those who don't know. Calling them stupid when they come here is not going to bring them back. Maybe we just need to help them even if we are tempted by their comments to criticize them.
JohnB26 (South Carolina)
Posts: 1,569
Posts: 1,569
Posted:
I was probably excessively brusque, however, he is a director of a corporate board and really must be quite ignorant to even suggest the 'lock-out'.
By joining a HOA (deed restrictions) you have voluntarily waived significant constitutional protection in exchange for 'property values' and a set of by-laws originally written to safeguard the developer. 'DUE PROCESS' What a joke. You can, however, bring legal action after the fact at great personal expense against the BOD who have access to 'prepaid' corporate councel.
As a practical matter there are very few actions a HO can take to protect themself from the actions of a wantonly ignorant and/or run-away BOD regardless of any legal system in place unless they are in a position to counter the HOA's virtually unlimited legal resources.
The PRIMARY stupidity (myself included) was purchasing into a deed restricted community not knowing that the US Constitution guarrantees me the right to sign away my rights by that very purchase.
WARNING -> RANT:
The original signers of the Declaration of Independance were slave holders wishing to break their ties with Great Britain after King George banned involuntary servitude in the British Empire. The resulting documents were written as derivatives of this action. Remember, the Bill of Rights were AMMENDMENTS to the constitution and can be changed/repealed at any time by a mere 2/3 plurality of the 'states'.
These facts are the basis of land laws in the USA.
May God help us all
By joining a HOA (deed restrictions) you have voluntarily waived significant constitutional protection in exchange for 'property values' and a set of by-laws originally written to safeguard the developer. 'DUE PROCESS' What a joke. You can, however, bring legal action after the fact at great personal expense against the BOD who have access to 'prepaid' corporate councel.
As a practical matter there are very few actions a HO can take to protect themself from the actions of a wantonly ignorant and/or run-away BOD regardless of any legal system in place unless they are in a position to counter the HOA's virtually unlimited legal resources.
The PRIMARY stupidity (myself included) was purchasing into a deed restricted community not knowing that the US Constitution guarrantees me the right to sign away my rights by that very purchase.
WARNING -> RANT:
The original signers of the Declaration of Independance were slave holders wishing to break their ties with Great Britain after King George banned involuntary servitude in the British Empire. The resulting documents were written as derivatives of this action. Remember, the Bill of Rights were AMMENDMENTS to the constitution and can be changed/repealed at any time by a mere 2/3 plurality of the 'states'.
These facts are the basis of land laws in the USA.
May God help us all
JackB8 (Virginia)
Posts: 141
Posts: 141
Posted:
John. I rest. Have a great night.
JohnB26 (South Carolina)
Posts: 1,569
Posts: 1,569
Posted:
JasonS8:
Florida State Law:
(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.
Now that you have been informed, a lock-out would be a deliberate breach of Fiduciary Duty NOT COVERED BY YOUR D&O INSURANCE.
You are now no longer ignorant, but an INTELLIGENT person would verify what I have just quoted and 'cover his butt' by doing some homework before attempting the duties of a Director.
ps. if you don't understand D&O insurance i suggest you find out really really quickly ... it is NOT a cover against all omissions and errors, merely ones committed in good faith WITHIN THE APPLICABLE LAW SYSTEM ... since you did not know their WAS Florida law involved you have NOT PERFORMED YOUR FIDUCIARY DUTY TO THE CORPORATION and have opened yourself to potential personal liability ... remember: ignorance of the law is no excuse
Florida State Law:
(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.
Now that you have been informed, a lock-out would be a deliberate breach of Fiduciary Duty NOT COVERED BY YOUR D&O INSURANCE.
You are now no longer ignorant, but an INTELLIGENT person would verify what I have just quoted and 'cover his butt' by doing some homework before attempting the duties of a Director.
ps. if you don't understand D&O insurance i suggest you find out really really quickly ... it is NOT a cover against all omissions and errors, merely ones committed in good faith WITHIN THE APPLICABLE LAW SYSTEM ... since you did not know their WAS Florida law involved you have NOT PERFORMED YOUR FIDUCIARY DUTY TO THE CORPORATION and have opened yourself to potential personal liability ... remember: ignorance of the law is no excuse
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Karen,
Of course access to a private road can be denied, but IAW FL law, NOT to a member of the HOA. Access can only be denied to a non-member.
Of course access to a private road can be denied, but IAW FL law, NOT to a member of the HOA. Access can only be denied to a non-member.
PeterB1 (Florida)
Posts: 257
Posts: 257
Posted:
Jason,
If you have a 'manned' gate, you can require the homeowner to personally come to the gate to let in his visitors & contractors. While you cannot deny the homeowner access, you are permitted to remove common-area privileges. We have taken that to mean the services of our gate-guards.
peter
If you have a 'manned' gate, you can require the homeowner to personally come to the gate to let in his visitors & contractors. While you cannot deny the homeowner access, you are permitted to remove common-area privileges. We have taken that to mean the services of our gate-guards.
peter
JohnB26 (South Carolina)
Posts: 1,569
Posts: 1,569
Posted:
EXCELLENT SOLUTION MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Peter,
IMO, this is a real stretch! Usually the privileges which are removed are outlined in the covenants. And, I doubt that having a gate guard can be construed as a common area privilege.
IMO, this is a real stretch! Usually the privileges which are removed are outlined in the covenants. And, I doubt that having a gate guard can be construed as a common area privilege.
PeterB1 (Florida)
Posts: 257
Posts: 257
Posted:
I beg to disagree. Our covenants do not specify which facilities are 'suspendable.' Since it is clear that association dues are firmly connected to our security guards, we have no problem suspending that privilege.
This is one of the very few ideas that has actually resulted in delinquent owners paying up!
This is one of the very few ideas that has actually resulted in delinquent owners paying up!
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Peter,
Well, if it works for you, that's fine. However the BOD should know whether or not it is legal to do this because someday an irate member may challenge you in court!
Well, if it works for you, that's fine. However the BOD should know whether or not it is legal to do this because someday an irate member may challenge you in court!
JohnB26 (South Carolina)
Posts: 1,569
Posts: 1,569
Posted:
law says owner(s) has access .. law is silent re: employees, hired vendors, guests, etc
HOA then can rule
HOA then can rule
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
I too think that this is a stretch of the Statute to not allow vendors and guests entry without the delinquent owner making a appearance at the gate but it is clearly not forbidden in that Statute.
720:3035--(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.
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