FLORIDA SEEMS TO BE THE LEADER -- IN EACH BAD CATEGORY ESTABLISHED!

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published February 26, 2011

No matter where you look, it seems that Florida is the leader in every bad category established in the nation. The headlines of the big newspapers in the nation scream it from their front pages: Florida NO.1 in the NATION -- in every BAD category ever established.

The New York Times -- New York of all places -- named Florida the nation's hot spot for Political Corruption. Nearly every major newspaper in the nation named Florida NO. 1 on the list for foreclosures -- not to forget foreclosure fraud. In an article in the Washington Post Florida was named as the No.1 State for decreased property values. Our own Florida newspaper admitted that we are the No. 1 State in not served arrest warrants. And nationwide the media reports about scams and fraud running rampant in Florida. And according to a TV report one of Florida's most popular retirement communities "The Villages" leads the nation in sexually transmitted diseases among senior citizens.

Add to the fact that a recent Forbes Report listed four (4) of Florida's cities among the Top Twenty "America's Most Miserable Cities."

But it may calm your nerves a little that Florida's cities are only ranked NO.2 in the category "2010’s Worst Cities For Foreclosures" -- just barely behind California.

I doubt anybody can be proud to see that Florida is leading (or is close second) in all these bad categories. And it surely doesn't attract any newcomers to Florida. Who wants to live in a state that is named NO.1 in all these bad categories? Even many people still living in Florida are only waiting for the real estate market to halfway recover in order to flee the former "SUNSHINE STATE ."

Recovery? How can Florida recover without getting rid of the outrageously bad reputation?

And FLORIDA has to be the NO. 1 State for not enforcing its own laws and for ATTORNEYS MAKING UP THEIR OWN LAWS IF CONVENIENT.

Florida is most likely as well the nation's leader in the category: "MOST ‘INVENTIVE’ Community Association Attorneys." It's just amazing what some of these attorneys come up with when interpreting Florida community association laws. But don't get your hopes up! They don't get inventive when it comes to being association/owner-friendly. No, they are -- you may have already guessed it -- inventive when it comes to filling their own pockets. I doubt they learned these "interpretations" in law school. I think they are doing it knowing full well that the victims of these interpretations are pretty helpless, unable to fight for their own rights -- already financially down on their luck. Add to the fact that there is no real functioning enforcement agency here in Florida and nobody is holding these attorneys liable for their willful "misreading" of the statutes.

Any honest attorney will explain to you that a "prevailing party" has to be established by a court ruling. And FS 720.305(1)(d) doesn't mince words: It says: "prevailing party in any such litigation" is entitled to recover reasonable attorney's fees and costs." It even adds the words "in any such litigation." How come attorneys are sending letters to homeowners accusing them of all kinds of "violations of rules" -- right or wrong -- and demand attorney's fees for writing such a letter?
Last year the legislature created a provision in FS 718.116(11) and FS 720.3085(8) · allowing associations to collect future monetary obligations from a renter of a condo/home with past due assessments. The law clearly states "future monetary obligations" -- not past obligations. You don't need to go to law school to learn the difference between the words future and past. Every teacher in elementary school teaches that. How come that law firms send letters to renters demanding to pay the full rent to the association for past due monetary obligations?
Both FS 720.3085(3)(a) and FS 718.116(3) contain language to restrict Administrative Late Fees to " the greater of $25 or 5 percent of each installment of the assessment." As well pretty clear language! So don't blame the legislators if law firms charge $100 in administrative fees, clearly disregarding these provisions in the statutes. Some law firms even charge $100 in administrative fees for installment payments made each month if owners agreed to a payment plan after falling behind in their dues. Honestly, just charging $25 doesn't fit into the "Get Rich Quick" scheme. $100 definitely sounds a lot better!

These are just a few examples out of the wide repertoire of interpretations used by attorneys to fill their own pockets. Do you honestly believe that families flock into these community associations that already have a bad reputation -- a reputation that gets worse by the day?

Let's face it: All the fancy slogans like "Let's get to Work" will not revive our economy and real estate market as long as the media all over the nation reports that FLORIDA IS THE LEADER IN ALL BAD CATEGORIES.

FS 720.305(1) Each member and the member's tenants, guests, and invitees, 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:

(a) The association;

(b) A member;

(d) Any tenants, guests, or invitees occupying a parcel or using the common areas.

The prevailing party in any such litigation is entitled to recover reasonable attorney's fees and costs. A member prevailing in an action between the association and the member under this section, in addition to recovering his or her reasonable attorney's fees, may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation. This relief does not exclude other remedies provided by law. This section does not deprive any person of any other available right or remedy.

FS 720.3085(8) 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 future monetary obligations related to the parcel. The demand is continuing in nature, and upon demand, the tenant must continue to pay the monetary obligations until the association releases the tenant or the tenant discontinues tenancy in the parcel. A tenant who acts in good faith in response to a written demand from an association is immune from any claim from the parcel owner.

FS 718.116(11) 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 the future monetary obligations related to the condominium unit to the association, and the tenant must make such payment. The demand is continuing in nature and, upon demand, the tenant must pay the monetary obligations to the association until the association releases the tenant or the tenant discontinues tenancy in the unit. The association must mail written notice to the unit owner of the association’s demand that the tenant make payments to the association. The association shall, upon request, provide the tenant with written receipts for payments made. A tenant who acts in good faith in response to a written demand from an association is immune from any claim from the unit owner.

FS 720.3085(3)(a) If the declaration or bylaws so provide, the association may also charge an administrative late fee in an amount not to exceed the greater of $25 or 5 percent of the amount of each installment that is paid past the due date.

FS 718.116(3) Assessments and installments on assessments which are not paid when due bear interest at the rate provided in the declaration, from the due date until paid. This rate may not exceed the rate allowed by law, and, if no rate is provided in the declaration, interest accrues at the rate of 18 percent per year. Also, if provided by the declaration or bylaws, the association may, in addition to such interest, charge an administrative late fee of up to the greater of $25 or 5 percent of each installment of the assessment for each delinquent installment for which the payment is late. Any payment received by an association must be applied first to any interest accrued by the association, then to any administrative late fee, then to any costs and reasonable attorney’s fees incurred in collection, and then to the delinquent assessment. The foregoing is applicable notwithstanding any restrictive endorsement, designation, or instruction placed on or accompanying a payment. A late fee is not subject to chapter 687 or s.718.303(3).