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FINALLY
- A REMEDY THAT WORKS FOR ASSOCIATIONS
By
Eric Glazer, Esq.
Published January 19, 2015
Over the last several years, the issue of delinquencies
in our
Florida
community associations became worse and worse.
The more people didn’t pay, the more the good paying
owners had to pay. The
more bank foreclosures, the less the association was receiving
in badly needed revenue.
The real solution to the
problem was changing the law to make a bank pay more money to
the association when they foreclose on a property and then
become the owner of that property after a foreclosure sale,
instead of capping the bank’s liability at one year of unpaid
assessments or 1% of the original amount of the mortgage.
Because of the banking industry’s power in the State of
Florida
, that simply never had a chance of happening.
Instead of taking the fight to
the banks, The Florida Legislature created laws that took the
fight from the association to the unit owners.
For example, there were laws passed that now prevented
unit owners from using the common areas if they were delinquent,
prevented them from running or serving on the Board and
prevented them from voting.
In other words, if someone owed the association
$10,000.00 in unpaid assessments, this new law that prevented
the unit owner from now using the exercise room, was somehow
going to make that delinquent owner pony up the $10,000.00 so he
can now continue use of the treadmill.
At seminar after seminar, I am told that these new laws
didn’t put any dollars in the hands of the association and
that while they sounded nice, were simply not enough of a
stimulant to get people to pay their delinquent assessments.
Finally though, a law was
passed that had teeth. This
law directly went after the worst violator, the unit owner who
owns a unit, rents it out, keeps the rent and stiffs the
association. In both
condos and HOAs, the law provides:
If the unit is
occupied by a tenant and the unit owner is delinquent in paying
any monetary obligation due to the association, the association
may make a written demand that the tenant pay to the association
the subsequent rental payments and continue to make such
payments until all monetary obligations of the unit owner
related to the unit have been paid in full to the association.
The tenant must pay the monetary obligations to the association
until the association releases the tenant or the tenant
discontinues tenancy in the unit.
1.
The association must provide the tenant a notice, by hand delivery or
United States
mail, in substantially the following form:
Pursuant to
section 718.116(11),
Florida
Statutes, the association demands that you pay your rent
directly to the condominium association and continue doing so
until the association notifies you otherwise.
Payment due the
condominium association may be in the same form as you paid your
landlord and must be sent by
United States
mail or hand delivery to (full address) ,
payable to (name) .
Your obligation
to pay your rent to the association begins immediately, unless
you have already paid rent to your landlord for the current
period before receiving this notice. In that case, you must
provide the association written proof of your payment within 14
days after receiving this notice and your obligation to pay rent
to the association would then begin with the next rental period.
Pursuant to
section 718.116(11), Florida Statutes, your payment of rent to
the association gives you complete immunity from any claim for
the rent by your landlord for all amounts timely paid to the
association.
2.
The association must mail written notice to the unit owner of the
association’s demand that the tenant make payments to the
association.
3.
The association shall, upon request, provide the tenant with written
receipts for payments made.
4.
A tenant is immune from any claim by the landlord or unit owner related
to the rent timely paid to the association after the association
has made written demand.
(b)
If the tenant paid rent to the landlord or unit owner for a given rental
period before receiving the demand from the association and
provides written evidence to the association of having paid the
rent within 14 days after receiving the demand, the tenant shall
begin making rental payments to the association for the
following rental period and shall continue making rental
payments to the association to be credited against the monetary
obligations of the unit owner until the association releases the
tenant or the tenant discontinues tenancy in the unit.
(c)
The liability of the tenant may not exceed the amount due from the
tenant to the tenant’s landlord. The tenant’s landlord shall
provide the tenant a credit against rents due to the landlord in
the amount of moneys paid to the association.
(d)
The association may issue notice under s. 83.56 and sue for eviction
under ss. 83.59-83.625 as if the association were a landlord
under part II of chapter 83 if the tenant fails to pay a
required payment to the association after written demand has
been made to the tenant. However, the association is not
otherwise considered a landlord under chapter 83 and
specifically has no obligations under s. 83.51.
(e)
The tenant does not, by virtue of payment of monetary obligations to the
association, have any of the rights of a unit owner to vote in
any election or to examine the books and records of the
association.
(f)
A court may supersede the effect of this subsection by appointing a
receiver.
I
have seen this law work well for community associations.
I personally encourage the use of this statute whenever
possible because it hits the landlord in the pocket book and
often times gets results. It
certainly gets a lot better results than threatening a
delinquent owner with the inability to run for the Board.
In fact, there may be some Board members out there right
now who would gladly pay to get of the Board.
P.S.
Our Board Certification Seminar is now out for 2015 and we will
be all over the state. To
register at a location near you, please go to: www.condocrazeandhoas.com.
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