Rule breakers, beware:
New law gives homeowners' associations more muscle
Article Courtesy of The Miami Herald
By Donna Gehrke
Published September 13, 2010
So you might park on the street more often than your homeowners association allows. You might cut your grass less often than the association honchos like.
You might even get drunk and rowdy, waking up neighbors or abusing security guards at your gated community.
Now your bad behavior may cost you your home: Your association can now file a lien against your house or even try to foreclose if you owe more than $1,000 in fines.
A new state law allows HOAs to go after rule breakers -- to the point of taking homes away from violators. What once the state taketh away, Florida has now given back to homeowners associations: The right to file liens and even foreclose on homes for nonpayment of fines.
Some homeowners association leaders and lawyers say the law that took effect July 1 has its benefits -- namely as a stick to get people to obey rules so property values will not be hurt. The new lien law affects only those in homeowners associations, not condo owners.
"It is a fantastic law used in the right way,'' said Damon Andrews, vice president of the L'Etoile Homeowner's Association in Emerald Point in Hollywood.
But other HOA officers have their doubts -- and don't plan to use the new law. "If you file a lien, what are you going to do? People don't have the money,'' said Miles Moss, president of the Kendall Federation of Homeowners Associations and president of his own 1,500-home Winston Park Homeowners Association.
Homeowners, he said, are already struggling to pay their regular maintenance fees.
All agree that it is important that associations not abuse the new law, such as filing liens for trivial matters or even to settle personal grudges.
The state first banned the liens years ago because of controversial actions by some associations, like a Palm Beach HOA that tried to foreclose on a house because the owner didn't fly the American flag according to association rules.
Andrews, vice president of the Hollywood HOA, believes the great majority of associations will be conscientious.
"My fear is that the media will publicize [a few cases] where associations don't use it the right way,'' he said.
HOA boards need the new law to help persuade repeat offenders to clean up their act, Andrews added.
Already, some HOA boards are anticipating income from fines. They expect people will be motivated to pay, because once they top $1,000 in unpaid fines, associations will be allowed to start the legal process by filing a lien on offending properties, Hollywood attorney Eric Glazier said.
Glazer, who has a radio program on community associations on WIOD-AM (610) at noon Sundays, is recommending to his HOA clients that they use restraint and not file liens on every offender, especially first-time violators.
"I think it should be used in the most egregious of circumstances,'' Glazier said. "It is a powerful tool that can be used improperly -- that can cause people to lose their homes.''
But he said HOAs needed a way to crack down on repeat offenders who thumb their noses at rules that they agreed to abide by when they moved into the community.
Mary Ann Ruiz, an attorney with the Condo Clinic in South Miami, which specializes in helping homeowners, said her clients have been taken to court by their community associations for nonpayment of regular fees. She said she stresses to them the importance of paying and keeping records. "If you owe money, you owe money,'' she said, adding that owners "need to take it seriously.''
Before, some violators fined by associations wouldn't pay or change their habits because they knew that HOAs could only take them to small claims court, said Michael Koretzky, head of the enforcement committee for his Westlake HOA in Hollywood.
But now, he said, violators may think twice about ignoring rules that others adhere to -- not that his association is looking forward to threatening legal action.
"We don't want to take them to court,'' he said. "We just don't.''
Sometimes, though, that may be the only recourse, Koretzky said.
The reality is that many associations are contending with homeowners who owe more on their homes than they are worth and are electing not to do any maintenance, said Andrews, the Hollywood association vice president.
In one case a family lived several years in a half-painted house with an overgrown yard, he said. The family quit paying HOA fees. When the bank finally foreclosed, the homeowners left -- after stripping the house of copper wiring and other valuables.
Had the new law been in effect, the HOA could have taken legal action so the house would not have been so damaged, Andrews said.
There are other cases, however, in which association leaders acted out of spite, said Jan Bergemann, president and founder of the grass-roots group, Cyber Citizens for Justice.
Years ago, one board president became angry when a couple did not bring the right chocolate cake to a homeowner's potluck, Bergemann said. Two days later, the president sent a letter, fining the couple $100 a day for illegally having flower pots at their front entrance, Bergemann said. The association then filed a lien against their home when they didn't pay. The couple ended up having to shell out $4,500 in legal costs to resolve the issue.
"This is a dictatorial tool,'' Bergemann said. "They can go after you and foreclose you on the home.''
State leaders became so uneasy that they eventually decided to prohibit homeowners associations from filing liens or foreclosing on homes because of unpaid fines.
Indeed, a South Florida case became a national symbol of associations that tyrannize homeowners.
In 2000, former Marine George Andres was taken to court by his homeowners association in Jupiter for flying the American flag in his yard instead of obeying his HOA's rules to hang Old Glory on brackets from his townhome. Then-Gov. Jeb Bush and the Florida Legislature intervened on Andres' behalf. State and federal legislators even passed laws to allow the American flag to fly in residential neighborhoods.
But Andres and his wife Ann still had to fight to keep their home after the association tried to foreclose. An appeals court ruled in the couple's favor. But only in 2007 was the matter finally resolved -- after seven years of court battles and $75,000 in legal fees the couple accumulated. The couple kept their home, the flag remains on the pole, the foreclosure was dropped and the Andreses' attorney was paid his legal fees.
Now Bergemann said if an HOA overreaches again, there may be a lawsuit on the grounds that only the federal government and Florida can assess fines -- not private groups.
"The U.S. and the Florida constitutions state very clearly that only government entities can fine their citizens,'' he said.
Attorney Donna Berger said she wouldn't advise an association to bother with the new law. Filing liens and foreclosure for nonpayment of fines is not practical, she said.
"I have never been a fan of fining because it has never been a deterrent,'' she said. Her group, Community Advocacy Network, did not advocate for passage of the HOA law this spring.
But, she acknowledged, the state "definitely gave the association a heavy hammer to use.''
Many homeowners associations won't bother with it, predicted Moss, president of the Kendall Federation of Homeowners Associations.
"We haven't even discussed it'' at the federation meetings, he said. Most association leaders are more concerned about stretching budgets at a time when so many strapped homeowners can't afford HOA maintenance fees.
"We are not condo commandos,'' he said.