Seizing rent for past due fees

Started by MariannD • 13 replies • 1096 views

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MariannD (Florida)
Posts: 6

Posted:

I was on the Board, but resigned since I moved. I fell behind, but I had agreed to pay the association dues and made an extra payment every month. I still own my townhouse, but have a renter. The property manager is also the same property manager as the one that the association uses, and she used to also be on the Board. We have had a falling out, and I just retained a new property manager. My tenant had a letter that the rent is going to be seized for past due fees. I was not notified that they were going to do this. Can they still seize the rent if I have made the payments as per the agreement? I finally got my statement of how much I owe as well about a couple of weeks ago, along with the person taking care of the property letting me know immediately that she was no longer going to be the property manager.

The president of the Board is also behind on his dues.... I didn't think you could serve on the Board if this was the case????

I just want to make sure that this is legal, and if there is anything that I can do?????

Any help would be appreciated.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You are in Florida. I believe they can do this. This typically means that they are in the process of foreclosure if they take that step. They are going to get their money. It's either through you or your renter if they want to stay.

Keep in mind that most states don't have this law but Florida is one of those quirky HOA states. It's best to ask someone in Florida about HOA laws as they are quite complicated.

Former HOA President

SheliaH (Indiana)
Posts: 6,964

Posted:

Since you were on the board, you may want to check your community's collection policy - you still own the townhouse, so you should have one. If the policy states the Association may take the rent to apply against your debt, that's what they can do.

Regarding the president being behind on his dues, you'll have to check your documents on his eligibility to serve on the board - and once again you were on the board so you should already have the answer to that. Even if you're right about him no longer being eligible (and you probably are), your priority needs to be on YOUR situation. If you don't get this straightened out, the board may be less inclined to listen to you while you're delinquent - and may even go nuclear and move to foreclose on your home.

Start with getting a current account statement so you'll know exactly how much you owe when you made payments and how much you paid. If checks were returned, your payments were less than what you agreed to or they were late, you may have voided the agreement, so the board is going after your rent payments. Make sure they have your current address - you should have given them that when you moved out. You may also need to take a hard look at your relationship with the former property manager/board member. Personally, I think a board member who doubles as the association's property manager is a huge conflict of interest for the association. Then you two had a falling out - could she have sabotaged your account? Maybe, maybe not - you may want to compare your records against the association's statement.

Finally, talk to the new property manager and try to come up with another plan - and yes, you may have to accept rent garnishment until the balance is paid up. Get the new agreement in writing and stick to its terms. Good luck!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

RichardP13 (California)
Posts: 3,868

Posted:

Please look at the term "Assignment of Rent" in your CCRs or state statues.

DouglasK1 (Florida)
Posts: 2,046

Posted:

From Florida Statute 720:

(8)(a) If the parcel is occupied by a tenant and the parcel owner is delinquent in paying any monetary obligation due to the association, the association may demand that the tenant pay to the association the subsequent rental payments and continue to make such payments until all the monetary obligations of the parcel owner related to the parcel have been paid in full to the association and the association releases the tenant or until the tenant discontinues tenancy in the parcel.

Escaped former treasurer and director of a self managed association.

GenoS (Florida)
Posts: 4,276

Posted:

Did they agree not to demand the tenant's rental payments in conjunction with your payment plan? Are your monthly payments, according to the plan, enough to reduce the outstanding balance every month or are you just treading water? They may be trying to accelerate the payoff of the total amount due. I can see how you not getting the rent could negatively impact your ability to make payments under your payment plan agreement. I'd look carefully at the agreement again.

MariannD (Florida)
Posts: 6

Posted:

Thank you for your input. I didn't know this was even possible.

MariannD (Florida)
Posts: 6

Posted:

Thank you for your advice. I was just blind sided. I had requested my statements many times, and didn't receive them. Even though I was on the board, myself and others included didn't know the laws or bylaws. Ignorance is not bliss. The president took it upon himself to assure us that whatever he said was right. He was always the man in charge, and didn't like it when he was questioned.

It doesn't matter that he's behind. No one else will question that... they don't care, or know that it doesn't or won't make a difference.

There was a lot of conflict of interest, and many things even agreed upon at the meetings would get held up because the president would change his mind. It was always a mess. He is also a realtor and has his own company which the board used for pressure washing,etc. He even wanted to sell a unit we had, and we never were able to get the specifics on it. I have never seen them act so swiftly on something. Communication was low and irritation high. Members are on the board only for the sole purpose of having a quorum. It doesn't help that the property manager is like his minion. I guess since I'm not there it's easier for them to do what he wants... no one else questions him.
I know I was behind, but I tried to rectify it. I guess it wasn't enough.

I don't have that information on the community's collection policy. We never did this to anyone else...this is a first. They actually had to find that statute. I do know that the payment cleared my account,but they did get it a few days late on one occasion. I guess that voided the agreement. The agreement was I would pay the dues then pay the extra either with it, or a couple weeks later since I got paid biweekly.

I blame myself for not knowing that this was a possibility. I don't want them to go nuclear. Since I finally received my statement, I was going to get it caught up in a couple of months... that's a moot point now.

Fortunately, it will only be for a month. It will be a financial hardship, but apparently they are acting within the law.

I will talk to my new property manager and see what else he thinks. He wanted me to reach out to them, but that is to no avail.

I appreciate your advice, and your knowledge on this. Thank the Lord that there's a quorum like this. As someone mentioned, Florida bylaws etc. are confusing and complicated. I am just ashamed that this has happened, and that I was and am ignorant on what they can do. We all fall on hard times..

MariannD (Florida)
Posts: 6

Posted:

Thank you! I was trying to research and find it. I was also trying to find something on him being behind on his dues, and being allowed to be on the board. It is just confusing and complicated...

I appreciate it.

MariannD (Florida)
Posts: 6

Posted:

I found out about this from my tenant and new property manager. They sent her a letter, and my property manager sent it to me. There was never talk about this. It was never done before. I don't trust them with another agreement. I spoke with someone on the board and he said that he didn't understand why they would do this, especially since the president was behind as well. He always is. Yes it will be a financial burden, and they know that. I had to resend the email since he said he didn't have it.

Like I mentioned in another post, the members just go along with whatever the president says. The property manager is a good friend of his. I mean we're all neighbors.

I wasn't even notified that this could have been a possibility.

Thank you for responding. I appreciate that.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Actually you were notified. Whether you know or didn't know isn't anyone's responsibility. It's a HOA law or even in your own documents. The law will view it as it being your responsibility of being informed...

Now do I agree with this? No. However, I do have to point this out before you go out and want to blame/sue other sources. The CC&R's and Articles of Incorporation are PUBLIC documents. Laws are also considered a Public knowledge. It's just if you did not read or know about these laws doesn't make someone else responsible.

Former HOA President

MariannD (Florida)
Posts: 6

Posted:

Again ignorance isn't bliss... is there anything else I should know? Where can I find this information? I don't have a copy of the bylaws. I will ask for them. Thank you. Learn something new every day...

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By MariannD on 04/05/2017 5:34 AM
Again ignorance isn't bliss... is there anything else I should know? Where can I find this information? I don't have a copy of the bylaws. I will ask for them. Thank you. Learn something new every day...

Usually there are two groups of HOA related documents:

Corporate documents - bylaws, articles of incoporation, etc. These specify how the corporation is run, such as how elections are managed and meetings held.

Covenants, aka deed restrictions, CCRs. These specify the rights and responsibilities of the association and the members, such as how association money can be spent and architectural guidelines.

There may be other docs, but they generally fall into one of the two categories. The doc contents can vary from what I've suggested above and can sometimes overlap too, it just depends how the developer wrote them.

The covenants are attached to your deed and are recorded with the county, you should be able to get a copy from them. In my county they are available for free online from the county comptroller's office, your county may vary.

Bylaws can be recorded, but don't have to be. Hopefully somebody on your board has them, I'm not really sure what do do about them if they are lost to time.

HOA Board members should at least skim FS 720 (or FS 718 for condos). Note that Florida HOA board members are required by law to read and uphold the governing documents or alternatively, attend a board member training class:

720.3033 Officers and directors.—
(1)(a) Within 90 days after being elected or appointed to the board, each director shall certify in writing to the secretary of the association that he or she has read the association’s declaration of covenants, articles of incorporation, bylaws, and current written rules and policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members. Within 90 days after being elected or appointed to the board, in lieu of such written certification, the newly elected or appointed director may submit a certificate of having satisfactorily completed the educational curriculum administered by a division-approved education provider within 1 year before or 90 days after the date of election or appointment.

Escaped former treasurer and director of a self managed association.

DouglasK1 (Florida)
Posts: 2,046

Posted:

I'll also add that boards often could use some educating. One of the reasons I ran again for the board several years ago after being off for over 10 years was that the board members were referring to the CCRs as "bylaws" (including posting them on our website as "bylaws) and didn't appear to actually have a copy of the real bylaws.

Escaped former treasurer and director of a self managed association.

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