AirBNB and rental garnishment

Hi all,

I'm an HOA president in Florida, and we have a homeowner who moved in about a year ago who hasn't been paying any dues, and generally is disrespectful to the neighbors and a nuissance to the negiborhood. He started renting out his place on AirBNB as well, and since then, him and his guests have been littering and have made the problem much worse (the county has a pay by amount of trash program, and he selected the smallest size can, and with the AirBNB rental, its inadequate to handle his trash, so they just liter instead of upgrading the can size). The AirBNB is not restricted by our documents, and the litering is difficult to definitively prove its him, and its also supposed to be a county issue, but code enforcement doesn't seem equipped to handle the complaint with the non-responsive homeowner after trying to work with them for months on it.

The biggest problem is our HOA dues our low, so his account balance is still low. Our dues are only $300 for the year, and his account balance is still a bit under $1k. It doesn't make much sense for us to hire an attorney to try to collect a few hundred dollars when the attorney is likely going to end up collecting more then that from us, and we obviously no guaranteed success. Our past collections procedure has generally been to keep tacking on late fees, interest, and a lein, either till the person finally starts paying (or gets on a payment plan) or tries to sell their home, at which point they are forced to have all violations corrected and pay all the backed fees and interest for the estoppel and release of lien, and so far, that has been a very low cost and effective collection mechanism.

I'm trying to figure out what options we have to stop this guy from getting away with literally everything. His credit score is no doubt really bad, as my understanding is he tries to not pay bills for his services with everyone to try to sort out who he can get away with it on. He's already had all of his utilities shut off for non payment, but then paid them as soon as he realized they would actually shut them off. I guess he's gotten away with non-payment for a variety of things before, from what I hear, he's a con artist for a living, and he does have money (no mortgage, which is super unusual for a non-paying member, thats another reason we typically haven't bothered to go beyond the lien on past non-payers, the banks would typically take care of it for us eventually).

Obviously a good first step would be to somehow collect his HOA dues. I know Florida has a law that allows us to demand rental payments by the tenants to be made towards the HOA dues for deliquent members. Does that work with AirBNB? Is it collectable from AirBNB, since obviously the actual tenant is paying AirBNB and constantly changing, so unlike the usual tenant situation, we don't really have the ability to evict them for non-payment since the time period is so short and they're paying to AirBNB. Has anyone heard of any situation where an HOA has been able to demand collection from AirBNB?

Or does anyone else have advice on how to handle this matter? (outside of consulting with the association attorney, we don't want to end up spending more then our losses to try to punish the guy)

You can collect rent by Assignment of Rents, as long as the authority is given in your CCRs. Otherwise, you're out of luck.

Good question for an attorney.

Personally, I would go for a judgement and then use the court order to garnish rent/wages/etc.

Yup, and we also charge the account for the notice of intent to lien, and claim of lien, which have been sent, along with late fees for every missed payment and 18% interest on all fees. The problem is he's made it clear he has no intention to sell the home, even if he moves, he wants to keep it for investment, so views liens and account balances as no problem that will ever effect him.

The problem we're running into the statutory language in 720.3085(8)(a) is meant for longer term leases then AirBNB. If we send the notice prescribed by that section, before we're able to collect any money, there will be a new tenant, unless we can claim AirBNB is the tenant and needs to pay us. Thats what I'm really looking for, has anyone had any sort of success with that type of claim? So AirBNB would no longer pay our delinquent owner but instead make payments to us (until the balance is paid, which would likely be only a month of rental income, if that)

If we can't do that, it seems our only other choice is to start the foreclosure process, which my belief is not worth it with the current balance. Even though we're supposed to be able to collect attorney's fees, my understanding is you never really get to collect all of them, and if we can't really, truly, reliably collect all of them, it just doesn't make any sense to foreclose. We're just trying to do something else outside of lawsuits/foreclosure to get him paying, as we know he has the money.

Anon,
I am going to offer a option that is kind of a combination of several of the responses with a twist.

I agree that you need to file a lien on the property asap. You mentioned earlier that he owns the property 100% free and clear. The only reason Foreclosures were are bad idea is usually the property value is less than the Lenders mortgage balance and You try to foreclose the lender jumps in front of the person who filed the first lien. In your case No lender No problem with this lien. It is my understanding that legal fees are included in recoverable costs. I am sure if I miss speak I will be corrected on the site. I would strategically wait till Rental high season to serve him at his listed address. You will need help doing this exactly by the book but if it is ignored you can schedule it to go to the court house steps and your HOA or someone else can buy this property for a few thousand dollars. If he is a Con Man he may know exactly what will happen and not let it get that far. If he is not paying attention he may get conned out of his property. I view this type of person as a Cancer and it is growing in your HOA. Typically you should try to remove Cancer before it grows.

This may seem aggressive but your duty is to collect the HOA dues and work to maintain and possibly increase home values in the HOA. Sorry I read this thread pretty fast and my thoughts jumped on the page. I may have some errors so except my apologies in advance.

We have an active lien on the property, and have been trying to get them to take some enforcement action, but our county code enforcement doesn't seem to fine and doesn't seem to do much beyond asking him to correct it. At best, we get a "correction" of a trash violation for 1-2 days before it starts over again. We've already done 20+ complaints with code enforcement, and they just aren't getting it done either. The county has picked up the trash a few times so nobody had to pay for it (which is just him getting away with not paying another bill) or other homeowners have been picking it up and putting it in their trash cans if they have extra room in them.

We did setup a fining committee specifically for him and fined him for the trash, he doesn't care as he isn't paying it anyways. We aren't sure how well that will hold up, because our evidence is we have pictures of his trash can being overfilled and then there is multiple bags of trash laying in the common area across the street. Nobody's managed to get a photo or video of him actually throwing the trash across the street. Other then that, we don't have many rules so he's not violating much more.

I'm pretty sure FL law allows that without anything in the CCRs.

Obviously, lawyers can disagree. When we amended our CCRs, we used a local attorney's office that has several attorneys on staff all specializing in HOAs. We were told that if we included an amendment with this verbiage: "The Association shall be governed by Florida Statute 720, as amended from time to time." that we could levy fines without specifically adding the ability to levy to our CCRs. Since FS720 allows for garnishing rents, we have gone with the assumption we can do that too, and in fact, have. Of course, until an owner sues, there's no telling what a judge might decide.

From FS720:
(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.

I'd start with a letter of intention to foreclose and let them know they have 30 days to make full payment or it will be turned over to a lawyer and cost $3,000 lawyer fees plus the $300 dues.

If no payment, turn over to a lawyer, start foreclosing.