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An
Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
Published
May 22, 2012
What is this state coming to? A Pasco County court
dispossessed a deeded owner without a hearing. The deeded owners of the
property were never even part of the court procedures -- and still were
locked out of their own house. This story is unbelievable
and crosses every boundary of property rights. What is this? Eminent
domain granted to a homeowners' association?
This is not about "homeowners should pay
their dues to the association" or what our esteemed leadership in
Tallahassee should do to protect the still paying homeowners from going
bankrupt because their neighbors fail to pay their dues.
This case is about a judge and an association lawyer
creating new laws -- laws that were never enacted by the Florida
legislature. Make no mistake, the first half of their actions was backed
by existing law {see FS720.3085(8)} but the second
part -- dispossessing the deeded owner and allowing the HOA to take
possession of the house and renting it out to new owners -- is in my
opinion going totally overboard, not backed by any existing laws.
Below is a list of all court documents filed in this
case, including the motions of association attorney Geraldine Holloway and
the rulings of Judge Robert P. Cole, Sixth Judicial Circuit. Take a look
-- and after considering the fact that no foreclosure proceedings were
ever finalized at the time of these court procedures -- you might come to
the same conclusion that I did: The association attorney and the judge
followed "law" that plainly doesn't exist!
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The
HOA has the right to evict a renter after asking for
payment of back dues directly to the HOA -- and the renter
failing to pay the "first rent due" to the
association, as required by law. In this case the renter
claimed that the first rent payment would only be due in
July, according to an agreement she made with the
homeowner to make the repairs to a vandalized house before
starting to pay rent.
Obviously
the judge disregarded this defense and
ruled
on a gut-feeling that this agreement was just made up in
order to avoid the renter paying rent to the HOA. Has a
judge the right to ignore such an agreement because of a
gut-feeling?
Judge
Cole ignored that defense and evicted the renter. So far
-- not so good!
But
now it comes: By signature of a county clerk the deeded
owner was dispossessed, allowing the association to take
possession of the home, even if the association clearly is
not the deeded owner.
Just
read: WRIT
OF POSSESSION
What
nearly everybody involved in this case seems to forget is
the fact that this is not a regular landlord/tenant
eviction case for unpaid rent. In this case the HOA
clearly is NOT the landlord and is not the
deeded owner who takes possession of his/her property
after evicting the tenant.
After
the eviction -- no matter right or wrong -- the law
granting any other rights to the HOA stops -- see below.
This
is were FS720.3085(8) stops:
(d)
The association may issue notice under s. 83.56 and sue
for eviction under ss. 83.59-83.625 as if the association
were a landlord under part II of chapter 83 if the tenant
fails to pay a monetary obligation. However, the
association is not otherwise considered a landlord under chapter
83 and specifically has no obligations under s. 83.51.
This
case is far from over. I have no doubts that latest the
appeals court will overturn these decisions, decisions
based -- in my opinion -- on non-existing laws. |
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Judge Robert P. Cole, Sixth Judicial Circuit
Association Attorney Geraldine Holloway
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If
that's the case, who will pay in the end for all the financial damages
caused by these court decisions?
I still remember the case of the EAGLES'
RESERVE HOMEOWNERS'
ASSOCIATION,
INC., a/k/a Nature's Watch,
where some homeowners lost their homes because an overzealous judge
appointed a receiver since he was obviously unable to interpret the word
"exterior" as "the outer surface or part." (See
ruling of APPEALS
COURT)
The
appeals court stopped the nonsense created by a judge -- but the damage
was done -- to the detriment of the homeowners..
How
far will this case go -- and how much more financial damages will be
caused by overzealous interpretations of the law?
STAY
TUNED -- THIS CASE WILL GET REALLY INTERESTING.
PROPERTY RIGHTS, ANYBODY?
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FS
720.3085(8) (a) 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 subsequent rental payments and continue to
make such payments until all the monetary obligations of
the parcel owner related to the parcel have been paid in full to
the association and the association releases the tenant or until
the tenant discontinues tenancy in the parcel.
1. The association must
provide the tenant a notice, by hand delivery or United States
mail, in substantially the following form:
Pursuant to section 720.3085(8), Florida Statutes, we demand
that you make your rent payments directly to the homeowners'
association and continue doing so until the association notifies
you otherwise. Payment due the homeowners' association may be in
the same form as you paid your landlord and must be sent by
United States mail or hand delivery to ...(full address)...,
payable to ...(name).... Your obligation to pay your rent to the
association begins immediately, unless you have already paid
rent to your landlord for the current period before receiving
this notice. In that case, you must provide the association
written proof of your payment within 14 days after receiving
this notice and your obligation to pay rent to the association
would then begin with the next rental period. Pursuant to
section 720.3085(8), Florida Statutes, your payment of rent to
the association gives you complete immunity from any claim for
the rent by your landlord.
2. A tenant is immune from
any claim by the parcel owner related to the rent timely paid to
the association after the association has made written demand.
(b) If the tenant paid rent to the landlord or parcel owner for
a given rental period before receiving the demand from the
association and provides written evidence to the association of
having paid the rent within 14 days after receiving the demand,
the tenant shall begin making rental payments to the association
for the following rental period and shall continue making rental
payments to the association to be credited against the monetary
obligations of the parcel owner until the association releases
the tenant or the tenant discontinues tenancy in the unit. The
association shall, upon request, provide the tenant with written
receipts for payments made. The association shall mail written
notice to the parcel owner of the association's demand that the
tenant pay monetary obligations to the association.
(c) The liability of the tenant may not exceed the amount due
from the tenant to the tenant's landlord. The tenant shall be
given a credit against rents due to the landlord parcel owner in
the amount of assessments paid to the association.
(d) The association may issue notice under s. 83.56 and sue for
eviction under ss. 83.59-83.625 as if the association were a
landlord under part II of chapter 83 if the tenant fails to pay
a monetary obligation. However, the association is not otherwise
considered a landlord under chapter 83 and specifically has
no obligations under s. 83.51.
(e) The tenant does
not, by virtue of payment of monetary obligations, have any of
the rights of a parcel owner to vote in any election or to
examine the books and records of the association.
(f) A court may supersede the effect of this subsection by
appointing a receiver.
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Homeowner
challenges HOA in court
Judge rules HOA can rent out investor's home
Another renter evicted by homeowners' association
Has
a Pasco County HOA gone too far?
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