Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
February 26, 2011
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.
New York Times --
of all places -- named
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
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.
to the fact that a recent Forbes Report listed four (4) of Florida's cities among the Top Twenty "America's Most Miserable Cities."
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.
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
How can Florida recover without getting rid of the outrageously bad
FLORIDA has to be the NO. 1 State for not enforcing its own laws and for ATTORNEYS
MAKING UP THEIR OWN LAWS IF CONVENIENT.
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.
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?
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
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?
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!
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?
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
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:
director or officer of an association who willfully and knowingly
fails to comply with these provisions; and
Any tenants, guests, or invitees occupying a parcel or using the
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.
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.
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.
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.
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).