SOME CALL IT ENFORCING DEED RESTRICTIONS --
OTHERS CALL IT HIGHWAY ROBBERY!
Opinion By Jan Bergemann
Published February 17, 2009
Do you wonder why so many lawsuits are filed in homeowners' associations?
The explanation is relatively simple.
Actually, there are three main reasons:
1.) Our government allowed these community associations to be created and created lengthy, but very vague, statutes, but -- on purpose -- left out any easy way of enforcing these statutes.
2.) Total lack of regulation.
3.) Power hunger and/or greed are creating dictatorships within our society.
And the so-called professionals -- attorneys and management firms -- are using their power and "knowledge" to manipulate gullible board members for their own financial gain.
Let's face it: Since Governor Jeb Bush's HOA Task Force (S 1184) eliminated liens and foreclosure for fines, law firms are working hard to find ways to circumvent this law. Finicky interpretations of the law, prepared by lawyers looking for loopholes to increase their billing, are being used to squeeze money out of unsuspecting homeowners.
How would you feel if you get a letter accusing you of violating the deed restrictions, demanding immediate payment of attorney's fees, no matter if the accusation turns out to be right or wrong! You might call it whatever you want -- I call it HIGHWAY ROBBERY -- covered up by legal mumbo-jumbo!
Just read the following parts of a "DEMAND LETTER" sent out by Frank A. Ruggieri, Esq., from the law firm of Larsen & Associates, P.A. in Orlando.
That surely should scare every homeowner who respects his/her wallet. But if that's not enough -- here comes the heavy threat:
In other words, if you don't submit payment of the amount demanded you, and your family are soon sleeping under the bridge!
before I forget: This doesn't work if the homeowner hires an attorney and
proves that the whole "violation" was bogus. Then association
boards and their attorneys claim that now FS 720.305 applies: "The prevailing
party in any such litigation is entitled to recover reasonable
attorney's fees and costs." And since there was no litigation the
owner has no right to recover attorney's fees!
This way of collecting money for alleged violations of deed restrictions is clearly circumventing the legislative intent of FS 720.305 (as amended in 2004). The emphasis of the provision that allows collection of legal fees is on PREVAILING -- clearly not meant to allow collection of legal fees without needed proof of actual violation. And, as we all know, legal fees can't be collected with the help of lien and foreclosure if the home is homestead protected.
But sending these kinds of letters is very effective because they are phrased to intimidate the homeowners. Especially the elderly are afraid of attorneys threatening with liens and foreclosures. Most of them pay no matter if right or wrong! And that is the whole idea behind this way of doing business. The attorneys get quite some extra income -- high-priced form letters printed by a computer -- and boards use it to intimidate owners who dare to contradict their way of doing business. "Don't speak up at the board meeting -- or you receive a violation letter from our attorney and you have to pay the legal fees, no matter if the alleged violation was just bogus!"
Is this what our society stands for? I surely hope not!
We always hear board members, attorneys and managers demanding more power and reinstatement of liens and foreclosures for fines. The last one I heard demanding more power for association boards was Kenneth Lassiter, 1. Vice President of COBWRA (COALITION OF BOYNTON WEST RESIDENTIAL ASSOCIATIONS, INC. at the CCFJ Town Hall Meeting in Boca Raton on January 31, 2009.
Our US Constitution allows GOVERNMENT ENTITIES to fine its citizens. Supreme Courts in Virginia and Rhode Island already held that fining by community associations is unconstitutional. As we all know, latest since the BATTLE AT TWIN RIVERS, association boards and their attorneys fight against homeowners' associations being considered government entities, because suddenly all the board members could be held accountable for their actions -- and in Florida the SUNSHINE LAW would apply. But NO, they want unrestricted power -- even to take a family's home away by foreclosure -- without being held accountable for any wrongdoing!!
I have nothing against power to uphold the laws, but this power can only be in the hands of people who can be as well held accountable for their actions!
But the shenanigans as seen in this letter (and many others) just have to stop!
This is HIGHWAY ROBBERY rather than anything else!
There shouldn't even be an argument!