SAFE HARBOR PROVISIONS FOR BANKERS IN HOA STATUTES
By Jan Bergemann
Published February 23, 2013
board members and owners are often told that association/owner friendly
laws passed by the legislature are not retroactive and can’t be applied
in their case since contract law prohibits laws being enacted
always wonder why this only applies to owner-friendly provisions, not to
the new laws passed by the
specifically think about the Safe Harbor provisions that were added to FS720.3085(2)(c)
only in 2008 – at a time when the real estate market had long collapsed
and community associations were fighting for financial survival due to
budget shortfalls caused by unpaid dues and/or foreclosures. Senator
Jeremy Ring found it appropriate at that time to protect the banks against
their own incompetence – to the detriment of the homeowners. Make no
mistake -- the other owners are paying the price for banks being protected
against their own mistakes.
2008 Senator Jeremy Ring sponsored Senate
Bill 1986 – the bill that turned out to be a curse for
owners living in homeowners’ associations, because they were suddenly
forced to pay for the budget shortfalls caused by the fact that this new
law protected banks against the liability to pay for all past dues and
fees created by the non-payment of dues.
make it very clear: Unlike the Condo Act (FS718) the Florida HOA statutes
(FS720) never contained any restrictions on the liability of mortgage
holders before. This was not an amendment to anything long in existence,
it was a brand-new addition to existing laws.
about it? Wouldn’t it be considered retroactive if the actual mortgage
was signed in 2007 -- with no
clearly leaves the question: Why could such a bill be enacted that clearly
violates any “contract” entered before July 2008 – taking away
contractual rights the association had before this bill was enacted?
homeowners’ associations which have the right of approval of new buyers
should just add a paragraph to their approval guide lines saying that only
buyers are accepted who either pay cash or where the mortgage contract
clearly states that the mortgage holder is fully liable for all unpaid
assessments and cost in case the homeowner defaults on the association
payments. That sure would prevent neighbors from having to pay for
neighbors who defaulted on their payments.
lenders and their lobbyists caused the
Fighting fire with fire may still work
– even in