Posting delinquent names prohibited, attorneys say

Article Courtesy of The Sun Sentinel

By Joe Kollin

Published July 25, 2007

It's a common problem.

When your neighbors don't pay their maintenance and assessments for months at a time, the rest of you pick up the tab. If you don't, the grass doesn't get cut, roads don't get maintained and the pool doesn't get cleaned.

All owners promise to pay their fair share when they buy into association-run communities, but some continually refuse to do so.

To encourage on-time payments, the law firms for many associations send demand letters immediately after the due date and quickly follow up with liens and foreclosures.

But those legal procedures have created some well-publicized collection abuses of their own, such as cases of a $25 late fee ballooning into a $2,500 debt.

Anne Helmintoller, vice president of a Delray Beach condo association, suggests a simple way to prevent the problem: Let owners know their names will be posted on the lobby bulletin board if they regularly fail to pay. Names of chronic delinquents could also be posted on the association's cable channel or Web site.

In her building, Helmintoller said 11 of the 64 owners are delinquent in paying their $375-a-month maintenance. They owe $22,000, which she called "a huge amount" for a small association.

"That means 53 owners are maintaining the water, cable TV, security alarm system, condo building, insurance, landscape maintenance, pool maintenance, etc., for the 11 people leeching off the responsible owners," she said.

The board's only recourse is to file liens, "but that does nothing to collect the cash we need now," she said.

Even if the association forecloses and obtains the unit, "you can't sell in this market," she said.

"Why can't we post the names of those who are past due in the hope that they will be embarrassed enough to pay up?" Helmintoller asked.

Three attorneys whose firms deal with community association and collection laws say no, they can't.

"I recommend very strongly against that practice," said Jay Steven Levine of Boca Raton and Palm Beach Gardens. "The purpose of posting is to embarrass. It isn't a legitimate collection effort."

He is concerned delinquent owners will file suit for invasion of privacy and libel. And if the association made even a slight mistake in its bookkeeping, it could lose such a lawsuit.

"The association and its directors face the possibility of unit owners claiming defamation in the event inaccurate information is published in a public area or on a Web site," said Nicholas Siegfried, whose firm Siegfried Rivera operates in Broward, Palm Beach and Miami-Dade counties.

Matthew Zifrony of Tripp Scott in Fort Lauderdale said the board would be taking a chance.

"Statutes specifically prohibit the collectors of debts, in this case the community association, from posting the names of their debtors before the general public for the purpose of enforcing or attempting to enforce collection of the debts," said Zifrony, who also is president of his Weston homeowner association.

"In fact, even threatening to post delinquent names is prohibited. Violating this statute could give the named debtor a right to bring a civil action against the community association."


Q&A

Q. Owners in several condo and homeowner associations complain that their boards are denying them the right to free speech by censoring what they put on bulletin boards and Web site message boards. Can boards do this, they ask.

A. They can, Zifrony said.

"As private entities, associations are generally not required to enforce the constitutional guarantees of free speech," he said. "Community associations can therefore restrict speech on common area bulletin boards as long as the restrictions are reasonable and applied equally to all residents.

"Likewise, community associations can place reasonable restrictions on their own Web sites provided they are applied equally."


Q. Where can I go with my complaint? Where can I or get more information?

A. Here are some contacts:

State condo ombudsman: [email protected] ; 954-202-3234; 850-922-7671 (not toll free); www.myflorida.com/condos . The ombudsman's office answers questions for unit owners, tries to mediate disputes between owners and boards, monitors elections and educates owners.

Division of Florida Land Sales, Condominiums & Mobile Homes: 954-202-3982; 800-226-9101; www.state.fl.us/dbpr/lsc/condominiums/index.shtml . The division enforces state condo law.

State condo law: www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0718/ch0718.htm 

State homeowner association law: www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0720/ch0720.htm 

Cyber Citizens for Justice, a nonprofit representing Florida condo and homeowner association unit owners: www.ccfj.net .

Community Associations Leadership Lobby, an organization that represents boards and those who manage and advise associations: www.callbp.com .

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