Can an HOA require current renter to reapply and pay $300.00+ fee and require a renter to be responsible for assessments?

SarahH6 (Florida)
Posts: 1

Posted:

Can a Florida HOA require a current renter to reapply for residency and pay a new fee of $300.00+ for processing of application before accepting a new lease agreement for the property? Renters paid this fee 8 years ago and have continued to renew the lease. Now the HOA wants them to reapply and pay again.

The new application package includes an agreement which doesn't seem legal.

"Further we understand and agree to pay directly to the HOA any assessment that is past due by the owner and deduct the amount from the rent. The balance of which will be paid to the owner. We understand that failure to do so may result in our eviction from the property by the association and any resulting cost for attorney's fees will be billed to us."

Can an HOA legally inform a 3rd party/renter of special assessments made to the owners property and demand payment from a non owner?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SarahH6 on 06/15/2017 6:11 AM
Can a Florida HOA require a current renter to reapply for residency and pay a new fee of $300.00+ for processing of application before accepting a new lease agreement for the property? Renters paid this fee 8 years ago and have continued to renew the lease. Now the HOA wants them to reapply and pay again.

The new application package includes an agreement which doesn't seem legal.

"Further we understand and agree to pay directly to the HOA any assessment that is past due by the owner and deduct the amount from the rent. The balance of which will be paid to the owner. We understand that failure to do so may result in our eviction from the property by the association and any resulting cost for attorney's fees will be billed to us."

Can an HOA legally inform a 3rd party/renter of special assessments made to the owners property and demand payment from a non owner?

I for one would like to such a law whereas if the owner falls behind, the association can collect the rent until the account is current.

CjC
Posts: 210

Posted:

I would also like to see where an association can evict a tenant. We had a similar problem here in our HOA. The HOA is not able to evict, but can take access to amenities away from both the owner and tenant. The owner has rights too and I do not think that withholding rent for dues is one that is legally allowed.

AmyB8 (California)
Posts: 9

Posted:

Wouldn't one of the issues be that I don't think we can inform renters that their owners are past due?

If HOAs can't inform 3rd parties about delinquencies, then assessing renters (necessarily informing them of the debt) for delinquent dues would violate that.

RichardP13 (California)
Posts: 3,868

Posted:

HOA's, through a clause in their CCRs called Assignment of Rents, can direct the tenant's rent to the Association to pay the delinquent assessments of the owners. If not already in one's CCRs they are being added, through a Membership vote, across the country.

AmyB8 (California)
Posts: 9

Posted:

Quote:

Posted By RichardP13 on 06/15/2017 8:20 AM
HOA's, through a clause in their CCRs called Assignment of Rents, can direct the tenant's rent to the Association to pay the delinquent assessments of the owners. If not already in one's CCRs they are being added, through a Membership vote, across the country.

We have one of our properties in escrow right now. Is it possible to implement this restriction before the sale goes through (or after the fact)?

Also, how do we obtain the money? The rents aren't paid to the association but rather directly to the owners themselves. So we are allowed to notify the renters of their owners' delinquencies? We have a few owners who are renting their townhouses out but aren't paying their dues.

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By AmyB8 on 06/15/2017 8:26 AM

Posted By RichardP13 on 06/15/2017 8:20 AM
HOA's, through a clause in their CCRs called Assignment of Rents, can direct the tenant's rent to the Association to pay the delinquent assessments of the owners. If not already in one's CCRs they are being added, through a Membership vote, across the country.

We have one of our properties in escrow right now. Is it possible to implement this restriction before the sale goes through (or after the fact)?

Also, how do we obtain the money? The rents aren't paid to the association but rather directly to the owners themselves. So we are allowed to notify the renters of their owners' delinquencies? We have a few owners who are renting their townhouses out but aren't paying their dues.

You'd have to legally change your CC&R's as they apply to all properties in your HOA. It will take time and some may oppose it.

If owners aren't paying dues you can lein their property

GwenG (Florida)
Posts: 669

Posted:

This is a multi-faceted question. The Florida Homeowner Statute says that the HOA can collect rents from a current Tenant directly and capture the portion that is a past due assessment:

720.3085
(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.

1. The association must provide the tenant a notice, by hand delivery or United States mail, in substantially the following form:...

AND

720.3085(8)(a)(2)
(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 monetary obligation. However, the association is not otherwise considered a landlord under chapter 83 and specifically has no obligations under s. 83.51.

The above is statute and any corporation subject to FS720 must follow this provision, regardless of what the governing documents say about Tenants of Owners. An HOA should also check to see if Owners are subject to future substantive amendments to FS720 ie presence of Kauffman language. (This statute was enacted in 2013 or 2014 (don't remember which year).

The second major part of the question involves the authority of the HOA to qualify, permit or limit Tenants. Do they CCR's permit the HOA to allow owners to rent or are they silent on the question ? My HOA is silent. If they are silent, then the Owner has all the rights and Tenants must only require tenant to follow rules. The HOA has none with regard to terms allowing Tenants to rent private property. The only governing restriction is the one described by the above statute.

If the CCR's permit the HOA to weigh into the Tenant process, it will likely refer to a qualifying procedure which would include applications and fees and Agreements. The HOA usually retains the authority to make "reasonable" rules regarding screening, fees etc. In my opinion, it is not reasonable to charge a second application fee, but it would be appropriate to require Owner to direct Tenant to update the original Application and this should be in the Tenant's Lease agreement.

It is not necessary to pre-warn or disclose Florida's ability to capture Tenant's rent to the Tenant. The HOA only has to provide the statutory notice if and when it wants to capture rent money.

If the HOA were to disclose anything, it should be to the Owner but this is not required by law.

HOA should be VERY careful about is actions and possible violations of Fair Housing Acts.

AmyB8 (California)
Posts: 9

Posted:

I wish those statutes existed in California. We have numerous renters who presumably pay their rents but their owners don't pay their dues. The renters use our pool (and sometimes seems like half the city comes over) and our owners are getting upset that they are essentially pushed out from the amenities. The ratio of owners to renters makes an amendment unlikely to pass since we're such a tiny association (21 units with two of them owned by one management company, for example).

SheliaH (Indiana)
Posts: 6,964

Posted:

In Indiana, the HOA has to go to court to get the rent in this way because the owner, not the tenant, is legally obligated to pay assessments – it’s similar to a wage garnishment.

It’s not foolproof either – when I was on the board, we tried this, but the tenant must then sign an agreement to forward the rent to the association and there isn’t much you can do if he or she doesn’t sign it or refuses to. So, it was back to pursuing a foreclosure and if successful, we could then go to the tenant and say we own the house now, so pay the rent or risk eviction.

We did get close to doing this - the tenant was willing (he was already pissed at the landlord for not making certain repairs). Unfortunately, we then learned there was a tax lien on the house and a company bought it. In the end, they kicked out the tenant (I think by then he stopped paying everyone out of frustration) and we did get some money, but had to eat a lot of what was owed.

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

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By AmyB8 on 06/15/2017 9:38 AM
I wish those statutes existed in California. We have numerous renters who presumably pay their rents but their owners don't pay their dues. The renters use our pool (and sometimes seems like half the city comes over) and our owners are getting upset that they are essentially pushed out from the amenities. The ratio of owners to renters makes an amendment unlikely to pass since we're such a tiny association (21 units with two of them owned by one management company, for example).

This leads me to a BIG question. Since HOA CC&R's are a legal binding agreement between the homeowner and the Association; in a majority of the cases use of amenities like parks and pools the CC&R's clearly state that the owner must accompany their visitors to said amenities. Why can't the same be said to renters?
The CCR are between the HOA and owner, the rental of the house is between the renter and owner. I think the owner should accompany the renter "visitor" to the park and pool.

CjC
Posts: 210

Posted:

We require the property to be current in order to use amenities. So if the owner doens't pay, the tenant passes are not valid at amenities.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By AmyB8 on 06/15/2017 9:38 AM
I wish those statutes existed in California. We have numerous renters who presumably pay their rents but their owners don't pay their dues. The renters use our pool (and sometimes seems like half the city comes over) and our owners are getting upset that they are essentially pushed out from the amenities. The ratio of owners to renters makes an amendment unlikely to pass since we're such a tiny association (21 units with two of them owned by one management company, for example).

The provision MUST be in the CCRs to be enforceable.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By LetA on 06/15/2017 11:00 AM

Posted By AmyB8 on 06/15/2017 9:38 AM
I wish those statutes existed in California. We have numerous renters who presumably pay their rents but their owners don't pay their dues. The renters use our pool (and sometimes seems like half the city comes over) and our owners are getting upset that they are essentially pushed out from the amenities. The ratio of owners to renters makes an amendment unlikely to pass since we're such a tiny association (21 units with two of them owned by one management company, for example).

This leads me to a BIG question. Since HOA CC&R's are a legal binding agreement between the homeowner and the Association; in a majority of the cases use of amenities like parks and pools the CC&R's clearly state that the owner must accompany their visitors to said amenities. Why can't the same be said to renters?
The CCR are between the HOA and owner, the rental of the house is between the renter and owner. I think the owner should accompany the renter "visitor" to the park and pool.

Because courts have considered any Rentor as having the same rights as the Owner with regards to association amenities. That has already been tried and the HOA lost. I remember having this similar discussion a while back on this site.

GwenG (Florida)
Posts: 669

Posted:

I agree with Janet. Real estate 101: Renters have nearly ALL the same rights as owners to the quiet use and enjoyment of the property except the right to transfer the property.

HOA's cannot retro-legislate the use of private property that is already under "contract" ie the covenants. The HOA also cannot amend the contract to impair the vested property rights of owners.

HOA's did not forsee the eventual demographic changes to the community that are inevitable with second and third generation owners, aging of homes and infrastructure. One reason is because the CCR's were written by Developers for Developers and were not concerned with the development of problems 20 years down the road.

CCR's were written for PROPERTY--not for PEOPLE! As the economy worsens and people begin to actively search for decent rental property, this should be on the problem short list for HOA's.