SOME CALL IT ENFORCING DEED RESTRICTIONS --
OTHERS CALL IT HIGHWAY ROBBERY!
An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
Published February 17, 2009
Do you wonder why so many lawsuits are filed in homeowners' associations?
The explanation is relatively simple.
Actually, there are three main reasons:
1.) Our government allowed these community associations to be created and created lengthy, but very vague, statutes, but -- on purpose -- left out any easy way of enforcing these statutes.
2.) Total lack of regulation.
3.) Power hunger and/or greed are creating dictatorships within our society.
And the so-called professionals -- attorneys and management firms -- are using their power and "knowledge" to manipulate gullible board members for their own financial gain.
Let's face it: Since Governor Jeb Bush's HOA Task Force (S 1184) eliminated liens and foreclosure for fines, law firms are working hard to find ways to circumvent this law. Finicky interpretations of the law, prepared by lawyers looking for loopholes to increase their billing, are being used to squeeze money out of unsuspecting homeowners.
How would you feel if you get a letter accusing you of violating the deed restrictions, demanding immediate payment of attorney's fees, no matter if the accusation turns out to be right or wrong! You might call it whatever you want -- I call it HIGHWAY ROBBERY -- covered up by legal mumbo-jumbo!
Just read the following parts of a "DEMAND LETTER" sent out by Frank A. Ruggieri, Esq., from the law firm of Larsen & Associates, P.A. in Orlando.
| Once again, in accordance with Section 8.2.5 of the Amended and Restated Declaration for Manchester at Kings Ridge, you are responsible for all attorneys' fees and costs incurred by the Association from this Law Firm for our involvement in enforcing its covenants which you are violating as stated above. Accordingly, in addition to correcting the covenant violation set forth above, you must remit payment to Larsen & Associates, P.A., in the amount of $232.00 made payable to the Manchester at Kings Ridge Homeowners Association, Inc., within thirty (30) days from the date of this notice. PLEASE NOTE THAT THE FEES AND COSTS REFERENCED IN THIS DEMAND LETTER ARE THOSE INCURRED TO DATE. YOU ARE RESPONSIBLE FOR ALL FEES AND COSTS THE ASSOCIATION INCURS TO COMPEL YOUR COMPLIANCE WITH THE DECLARATION. YOU MUST FIRST CORRECT THE VIOLATION(S) AS DETAILED HEREIN, AND THEN REIMBURSE THE ASSOCIATION FOR ALL FEES AND COSTS INCURRED. IF YOU DISPUTE THE VIOLATION(S), YOU DO SO AT YOUR OWN RISK. IF YOU CHOOSE TO CORRECT THE VIOLATION(S) AND PAY ALL FEES AND COSTS INCURRED, CORRECT THE VIOLATION(S) FIRST, CONTACT US IN WRITING TO INDICATE YOU HAVE FULLY CORRECTED THE VIOLATION(S), AND WE WILL THEN CONFIRM THAT THE VIOLATION(S) HAS BEEN CORRECTED AND PROVIDE YOU WITH THE TOTAL AMOUNT OF FEES AND COSTS WHICH MUST BE REIMBURSED. |
That surely should scare every homeowner who respects his/her wallet. But if that's not enough -- here comes the heavy threat:
| "Assessments for which one or more Owners (but not less than all Owners) within Manchester Neighborhood is subject ("Individual Assessments") such as costs of special services provided to a Home or Owner or cost relating to enforcement of the provisions of this Declaration or the architectural provisions hereof as it relates to a particular Owner or Home... The lien for an Individual Assessment may be foreclosed in the same manner as any other Assessment." [emphasis added] |
In other words, if you don't submit payment of the amount demanded you, and your family are soon sleeping under the bridge!
Oh, before I forget: This doesn't work if the homeowner hires an attorney and proves that the whole "violation" was bogus. Then association boards and their attorneys claim that now FS 720.305 applies: "The prevailing party in any such litigation is entitled to recover reasonable attorney's fees and costs." And since there was no litigation the owner has no right to recover attorney's fees!
This way of collecting money for alleged violations of deed restrictions is clearly circumventing the legislative intent of FS 720.305 (as amended in 2004). The emphasis of the provision that allows collection of legal fees is on PREVAILING -- clearly not meant to allow collection of legal fees without needed proof of actual violation. And, as we all know, legal fees can't be collected with the help of lien and foreclosure if the home is homestead protected.
[GEORGE ANDRES and ANNA ANDRES, Appellants, v. INDIAN CREEK PHASE III-B HOMEOWNER'S ASSOCIATION, Appellee]
But sending these kinds of letters is very effective because they are phrased to intimidate the homeowners. Especially the elderly are afraid of attorneys threatening with liens and foreclosures. Most of them pay no matter if right or wrong! And that is the whole idea behind this way of doing business. The attorneys get quite some extra income -- high-priced form letters printed by a computer -- and boards use it to intimidate owners who dare to contradict their way of doing business. "Don't speak up at the board meeting -- or you receive a violation letter from our attorney and you have to pay the legal fees, no matter if the alleged violation was just bogus!"
Is this what our society stands for? I surely hope not!
We always hear board members, attorneys and managers demanding more power and reinstatement of liens and foreclosures for fines. The last one I heard demanding more power for association boards was Kenneth Lassiter, 1. Vice President of COBWRA (COALITION OF BOYNTON WEST RESIDENTIAL ASSOCIATIONS, INC. at the CCFJ Town Hall Meeting in Boca Raton on January 31, 2009.
Our US Constitution allows GOVERNMENT ENTITIES to fine its citizens. Supreme Courts in Virginia and Rhode Island already held that fining by community associations is unconstitutional. As we all know, latest since the BATTLE AT TWIN RIVERS, association boards and their attorneys fight against homeowners' associations being considered government entities, because suddenly all the board members could be held accountable for their actions -- and in Florida the SUNSHINE LAW would apply. But NO, they want unrestricted power -- even to take a family's home away by foreclosure -- without being held accountable for any wrongdoing!!
I have nothing against power to uphold the laws, but this power can only be in the hands of people who can be as well held accountable for their actions!
But the shenanigans as seen in this letter (and many others) just have to stop!
This is HIGHWAY ROBBERY rather than anything else!
There shouldn't even be an argument!
(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.
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