Florida HOA lien rights

Started by StacyS • 5 replies • 3388 views

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StacyS (Florida)
Posts: 19

Posted:

Can anyone give me a specific Florida statute that states that Florida HOA must have lien rights specified in HOA documents before they can have a lien placed on a home for non-payment of dues or assessments? We are a mandatory HOA, but not governed under statute 720. Our documents state that we can "we can enforce collection therof through the remedies available by law" However we have been told that this statement doesnt give us lien rights.
Please help have a meeting a 9:30am regarding this matter.

LindaC3 (Florida)
Posts: 526

Posted:

Stacy-- How can you be a mandatory HOA and not be governed under Statute in Florida ???

ArthurG (Florida)
Posts: 7

Posted:

StacyS

If you are a mandatory HOA, what law do you supposedly come under? Do you perhaps come under 718 or 719. What?

I should state up front, I am not an attorney. I am, however, a licensed CAM and a board member in a HOA. I have studied some of these laws and hundreds of court cases.

Liens in general can be filed against a home for various reasons, as it states in Florida Statute 55.10:

"(1) A judgment, order, or decree becomes a lien on real property in any county when a certified copy of it is recorded in the official records or judgment lien record of the county, whichever is maintained at the time of recordation, provided that the judgment, order, or decree contains the address of the person who has a lien as a result of such judgment, order, or decree or a separate affidavit is recorded simultaneously with the judgment, order, or decree stating the address of the person who has a lien as a result of such judgment, order, or decree. "

The laws for homeowner associations and condos say very little about liens. The documents, however, go to great length to tell you all the punishments they can dish out if you don't behave yourself. Otherwise, liens are aleady addressed in other parts of the state law. So even though the law for HOAs doens't seem to come out and say they can impose a lien, they can go to the courts and take legal action, which I assume includes a lien.

As for legal action against a homeowner, HOA law says the Association has the power to take action against homeowners for refusing to comply with the documents, specifically:

(720.305 (1)) "Each member 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."

It also says in 720.305, it reads

"A fine shall not become a lien"

Today, that is a crucial issue for homeowners. The Associations used to be able to turn fines into liens at the drop of a hat and then foreclose on you, and take the money and run. It also sends a signal to the community "Don't mess with the Board"

If I were you, I would talk to a personal attorney, if you can find one who knows anything about homeowner association. Not many do, or will talk to homeowners. No money in it.

I would strongly encourage you not to talk to the Association attorney, or ask the Board for an answer from theirs. Association attorneys have a very, very, very bad reputation for telling homeowners to simply behave themselves, and that you have few, if any rights. I have for telling lies, and generally putting fear into homeowners that the Association can punish homeowners in any way it sees fit, for anything. THEY ARE WRONG. They will also lie to you about what your rights are, and often tell you that your place as a homeowner is to simply follow the rules, and there will be no trouble.

Let me know what you find out.

Arthur

StacyS (Florida)
Posts: 19

Posted:

Thanks for the replys. The association attorney finally returned my call late Friday afternoon. Our HOA isn't governed by Statute 720 because it was formed back in 1975. We don't have common property & don't have lien rights in our documents. Not For Profit, 617 Statutes apply to us.
According to 2 attorneys in Florida in order for a HOA to have lien rights it has to be stated in the governing documents. There is no direct statute or law on the books regarding this. It is determined by case law which is supported by 2 or 3 decisions which has set presidence within the legal system in Florida.
Stacy

LindaC3 (Florida)
Posts: 526

Posted:

StacyS-- Say what ???? Our community is also a NOT FOR PROFIT CORPORATION and we were formed in 1973 some 2 years before yours and we are governed under 720 not 617...... Not to accuse your attorney of anything ,but you may want to have them verify this again...If you look at the history notes at the bottom of some chapters in 720 it references " previous chapter 617" ....I would also be interested in knowing more about the case laws with regards to lien rights....According to our association attorney and my own personal attorney,if you have a HOA that you must pay dues to in order to be a member,they are in essence an entity that has extended you credit- failure to pay your debt allows for them to collect this thru remedies available via the court system here in Florida.Has your Association filed any documents thru the courts that you can recall with regards to Chapter 712 and the Marketable Titla Act ??? IFORUM rules do not prohibit your telling us the name of your association - and the county in which you reside I would love to read via the clerks web site and Corporations web site your documents...In my opinion something here seems off base, and while not an attorney or professing vast knowledge about the law , I as a sub contractor here in Florida have liens rights with regards to payments not recieved for services rendered.....Harold is also a GREAT SOURCE of info with regards to the Statutes.Also you may want to check your mortgage papers and see if you have a PUD Rider attached to it.. Linda C

LindaC3 (Florida)
Posts: 526

Posted:

Good a.m. Stacy--- I thought it would just be easier to post the Statute for you to review.....Hope this helps Linda C

720.301 Definitions.--As used in this chapter, the term

1) "Assessment" or "amenity fee" means a sum or sums of money payable to the association, to the developer or other owner of common areas, or to recreational facilities and other properties serving the parcels by the owners of one or more parcels as authorized in the governing documents, which if not paid by the owner of a parcel, can result in a lien against the parcel.
(2) "Common area" means all real property within a community which is owned or leased by an association or dedicated for use or maintenance by the association or its members, including, regardless of whether title has been conveyed to the association:

(a) Real property the use of which is dedicated to the association or its members by a recorded plat; or

(b) Real property committed by a declaration of covenants to be leased or conveyed to the association.

(3) "Community" means the real property that is or will be subject to a declaration of covenants which is recorded in the county where the property is located. The term "community" includes all real property, including undeveloped phases, that is or was the subject of a development-of-regional-impact development order, together with any approved modification thereto.

(4) "Declaration of covenants," or "declaration," means a recorded written instrument in the nature of covenants running with the land which subjects the land comprising the community to the jurisdiction and control of an association or associations in which the owners of the parcels, or their association representatives, must be members.

(5) "Department" means the Department of Business and Professional Regulation.

(6) "Developer" means a person or entity that:

(a) Creates the community served by the association; or

(b) Succeeds to the rights and liabilities of the person or entity that created the community served by the association, provided that such is evidenced in writing.

(7) "Division" means the Division of Florida Land Sales, Condominiums, and Mobile Homes in the Department of Business and Professional Regulation.

(8) "Governing documents" means:

(a) The recorded declaration of covenants for a community, and all duly adopted and recorded amendments, supplements, and recorded exhibits thereto; and

(b) The articles of incorporation and bylaws of the homeowners' association, and any duly adopted amendments thereto.

(9) "Homeowners' association" or "association" means a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel. The term "homeowners' association" does not include a community development district or other similar special taxing district created pursuant to statute.

(10) "Member" means a member of an association, and may include, but is not limited to, a parcel owner or an association representing parcel owners or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee.

(11) "Parcel" means a platted or unplatted lot, tract, unit, or other subdivision of real property within a community, as described in the declaration:

(a) Which is capable of separate conveyance; and

(b) Of which the parcel owner, or an association in which the parcel owner must be a member, is obligated:

1. By the governing documents to be a member of an association that serves the community; and

2. To pay to the homeowners' association assessments that, if not paid, may result in a lien.

(12) "Parcel owner" means the record owner of legal title to a parcel.

(13) "Voting interest" means the voting rights distributed to the members of the homeowners' association, pursuant to the governing documents.

History.--s. 33, ch. 92-49; s. 52, ch. 95-274; s. 4, ch. 99-382; s. 44, ch. 2000-258; s. 16, ch. 2004-345; s. 13, ch. 2004-353.

Note.--Former s. 617.301.

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