Dissension in the Ranks: The Basics Surrounding HOA Election Challenges

By: Dan Rich, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Few things generate more animosity and drama within a homeowners association, or HOA, than contested board of director elections. This tension may result in residents seeking legal action against the HOA in the form of an election contest. Sadly, most HOA residents have zero clue about the rules regarding an election contest; however, this article will hopefully shed some light on the basics surrounding HOA election contests in Florida.

So where do we begin? Florida law states that any election dispute or challenge in the homeowners association context must be submitted to mandatory arbitration with the Florida Department of Business and Professional Regulation, or DBPR.
The window for submitting an election contest is not open for long. Instead, Florida law provides that any person who wishes to challenge an HOA election must file their petition for arbitration with DBPR within 60 days of the election results being announced. The announcement almost always occurs at the election itself, which means that the clock starts ticking the second the meeting concludes.

Florida law goes on to provide that prior to filing an arbitration petition with DBPR, the resident must also provide his or her HOA with the following: (a) advanced written notice of the specifics regarding the dispute; (b) a written demand for relief, and a reasonable time for the HOA to provide said relief; and (c) notice of the resident’s intent to file an arbitration petition in the absence of a resolution. If the resident fails to comply with these three requirements, then DBPR will be forced to dismiss the election challenge.
Often times, the “written notice of the specifics regarding the dispute” is initially founded upon rumors, hearsay and mere hunches. To avoid basing your HOA election challenge on speculation, it is generally recommended that the disgruntled resident investigate the accuracy of the information prior to filing the arbitration petition with DBPR.

You may be asking yourself, why should I take the time to investigate? This answer is simple. Florida law provides that the prevailing party in a DBPR election contest is entitled to recover from the losing party all of his or her attorneys’ fees and costs.
To minimize this risk, Florida law provides that any resident of a HOA can inspect the official records of the association. Florida law mandates that election materials, such as ballots, proxies and the sign-in sheet be preserved for inspection by residents who request to review the documentation. Once a request is submitted the HOA must make all requested materials available within 10 days. Then, the requestor must take time to review the documents, which often times requires a time commitment based on the sheer amount of papers involved.

The importance of confirming the basis for any election challenge is imperative, but it narrows the 60-day timeframe that a resident has to file their petition. Therefore, that is why I recommend that

a resident seeking to challenge an HOA election, or an HOA facing an election challenge itself,
seek the advice of a knowledgeable attorney who can help navigate the complexities of an election
challenge under Florida law.

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in
Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Code Enforcement Liens

By: Anthony A. Velardi, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Q: A code inspector recently notified me about a code violation concerning my property. What is the process of enforcing a code violation?

A: Chapter 162 of Florida Statutes sets forth the various ways in which a local government body, such as a city, can enforce code violations, such as by imposing a fine which may continue to accrue on a daily basis. A code enforcement board is usually comprised of 7 members with 2 alternate members and should include an architect, businessperson, engineer, general contractor, subcontractor, and realtor.

The process usually starts with a disgruntled neighbor calling code enforcement, and a code inspector initiates the investigation. If a violation is found, the code inspector is required by law to notify the violator, and the code inspector is required to give the violator a reasonable time to correct the violation, unless the violation presents a serious threat to public health, safety, and welfare or if the violation is irreparable or irreversible in nature.

Typical code enforcement violations may include, but are not necessarily limited to, noxious odors or fumes emanating from your property, neglecting to mow your lawn, failing to secure buildings, parking derelict vehicles, failing to remove debris, placing improper signage, and possessing certain farm animals within city limits on your property.

If the violation continues beyond the time specified for correction, the code inspector notifies the enforcement board and requests a hearing. Notably, if a repeat violation is found, the code inspector is required to notify the violator but is not required to give the violator a reasonable time to correct the violation.

After the hearing, the code enforcement board is required to issue findings of fact based on evidence and law, and the code enforcement board issues an order. If the code enforcement board imposes a fine and the violator does not pay the fine by a certain date, the local government body may record in the public records a certified copy of an order imposing the fine.

The recorded order then becomes a lien against the land on which the violation exists and notably upon any other real or personal property owned by the violator. Therefore, if you have a code enforcement lien against Property A which you own and desire to sell Property B which is not in violation but located in the same county, technically the code enforcement lien attaches to Property B, unless Property B is your homestead. Furthermore, a code enforcement lien held by a municipal or county governmental unit survives issuance of a tax deed unless satisfied of record or otherwise barred by law.

If the code enforcement lien is not paid within 3 months after the date of recording, the local government body may foreclose on the lien or sue to recover a money judgment for the amount of the lien plus accrued interest, and a local government body, such as a city, has 20 years from the date of recording of the code enforcement lien in the public records to file its foreclosure lawsuit.

Anthony Velardi is a Martindale-Hubbell A/V Rated attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Anthony’s practice primarily focuses on commercial and residential real estate, land use, and general corporate/business law. Questions can be submitted to thelaw@cclmlaw.com.

Common Areas and the Role That Your Association Can Play in Prohibiting Guest Access

By: Dan Rich, Esquire
Clark, Campbell, Lancaster & Munson, P.A.

Q: Can my homeowners’ association prohibit guests from using the clubhouse or swimming pool?

A: November brings with it crisp air, the smell of turkey, and jokes about how the palm trees never lose their leaves. However, November also means that many people will start flocking to their Florida residences to escape the frigid north.

In many instances, these homes are in residential communities controlled by a homeowners’ or condominium association.  Among other things, associations are responsible for the management of common areas within the community.  Under Florida law, a common area is defined as all real property within a community that is owned or leased by the governing association.  Examples of common recreational areas include tennis courts, clubhouses and swimming pools.

The only way to know exactly what rules apply to the use of such common areas is to review the applicable provisions of your community’s governing documents regarding guests and visitors.  The governing documents (which usually include a Declaration of Covenants Conditions and Restrictions, Declaration of Condominium and Rules and Regulations) are where you should look first to determine what rights your guests and visitors have to use any common recreational areas.  Some associations may limit use of common recreational areas to homeowners or unit owners and prohibit guests’ usage altogether. Other associations might allow guests to use common recreational areas only if accompanied by a homeowner or unit owner.  Some associations may allow non-owners to use the common recreational areas only after obtaining a guest pass or signing into a log book.

Florida’s warm weather offers the ability to escape the cold Northern weather and enjoy outdoor recreational areas during winter months.  However, before planning your next pool party, it is advisable to consult your community’s governing documents in order to know how many people you can include on your guest list.

The December 1st edition of “The Law” will cover proactive planning for senior Medicaid Programs.

Questions can be submitted online to thelaw@cclmlaw.com

HOA Assessments when HOA Forecloses

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: Can a homeowner’s association foreclose on me even when I have a mortgage?

A: Yes.  One issue that I address in any community association law seminar or consultation with an association is assessment delinquency.  Most associations have at least a few owners who are delinquent, and some owners remain in default for years without any consequence other than a few demand letters.  The reason is usually financial.  The association might think it is simply not worth fronting the attorney fees for an enforcement action.  The legal cost and effort is of particularly questionable value when the property still has a mortgage, often in default, because the lender may have the superior right to come in and foreclose on the property at any time.  If the lender does not foreclose, the mortgage may stay in place and make the property unmarketable even if the association obtains the property by its own foreclosure.

Even so, associations should consider foreclosures under the right circumstances.  First, an association’s failure to enforce its own covenants, or its selective enforcement of the rules, opens the door in future lawsuits as to the validity of those rules.  (My colleague Kyle Jensen covered the concept of selective enforcement in the December 17, 2015 edition of this column.)  Second, while the association waits around for the lender to foreclose, the only loser is the association.  The owner enjoys the delay, often resulting in free housing, but the association continues to rack up delinquent assessments.  Under many circumstances, the bank will eventually take title, and the association will recover from the bank only a year of assessments, even if there are several years of delinquency.

If the association proceeds to foreclose on the property, one of three things will typically happen.  The bank might be motivated to foreclose, thereby curing the delay.  The association might get lucky and get a third party to buy the property at the foreclosure sale, thereby ensuring that the association gets paid for its claim.  Or the association might take title to the property subject to the mortgage.  The benefit here is that the association can begin to rent out the property and start to recover some of its losses from those rents while it awaits the lender’s foreclosure.  In certain circumstances, the association might even find it worthwhile to negotiate with the lender as to the proper resolution of the mortgage and debt.  For example, an association might be in a better (or more motivated) position to negotiate a short sale of the property to eliminate the mortgage and get the property into the hands of owners who will pay their bills.

Whether the association sells the property or the property goes to a new owner via the mortgage foreclosure sale process, the next owner is typically liable to the association for the assessments that accrued while the association held title in the property.  In reality, however, these amounts are not often recovered, because the association will usually feel forced to waive those past assessments so that a paying owner will get into the property and “stop the bleeding.”

The July 28th edition of “The Law” will cover the bike laws to keep you safe this summer.

Questions can be submitted online to thelaw@cclmlaw.com

99-Year Leases and Property Tax

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: When does a tenant become an owner for tax purposes?

 A: I “own” a condominium on unit on the east side of Santa Rosa Island in the Florida Panhandle, but I do not actually hold a deed.  Instead, because the island is county land leased to developers under 99-year master leases, I am the assignee of a lease to the unit.  Similarly, Island Resorts Investments, Inc., was subject to a sublease under one of these lengthy master leases on the west side of the island.  The developer brought a lawsuit against the county tax collector when the county started imposing property taxes on the tenant.  The developer argued that it was a tenant not subject to real estate taxes.  A trial court sided with the tax collector, but on appeal a panel of judges held that, primarily because the sublease agreement did not allow for the developer to either get automatic lease renewals or get a deed for a nominal price, the tenant did not have the sort of perpetual dominion rights typical of an owner.

The tax collector has vowed that the fight is not over, and a Florida Supreme Court ruling may be forthcoming, but the case raises questions of when a tenant can be a so-called “equitable owner.”  To understand why this is even a question, it is important to know that lawyers and courts consider ownership as a “bundle of rights,” and someone can have all or some of those rights.  You can have a right to exclusive dominion of a property, for example, but not the right to build on the land.  Or you can have the right to build but must turn over all improvements to another owner once you stop using the property for a specified purpose, upon the expiration of a specified term, or even upon a specified person’s death.  You may or may not have the right to sell or sublease the property you occupy.  If you have the entire bundle of rights, you are obviously the “owner” in all senses.  But if you have only some of the rights, the question arises as to what your responsibilities are, including as to real estate taxes.

In Florida, to be deemed an equitable owner for such tax purposes, a tenant must hold virtually all of the benefits and burdens of ownership, including the obligations to insure, maintain, and pay taxes (according to the lease).  Although these obligations are common in commercial leases, the key piece that makes equitable ownership uncommon is that the lease must either be perpetual or allow for the tenant to purchase the land for nominal value.  On the face of this rule, a lease with a purchase option could fall into this definition if the eventual purchase price is small enough.  Generally speaking, however, if the tenant’s right to occupy the property can be taken away at the option of the landlord or other legal owner at any time or at a specified time, as is the case in virtually all residential leases and most commercial leases, the tenant will not be an equitable owner with responsibilities directly to the state for property taxes.  Even if the tenant is not responsible to the government, however, the lease may require the tenant to pay the taxes, and the tenant must comply with his obligations under the lease.

Negotiating a lease and understanding your rights and responsibilities, including those not specifically set forth in the written agreement, should not be taken lightly.  Legal counsel can assist in the event a tenant or landlord has concerns over a residential, commercial, or land agreement.

The June 30th edition of “The Law” will cover the new collaborative law procedures for Florida family law cases and how the same concepts can be applied in business disputes.

Questions can be submitted online to thelaw@cclmlaw.com

Radon

By:      Anthony A. Velardi
Clark, Campbell, Lancaster & Munson, P.A.

Q: What is radon, and how can it affect my property?

A: Radon is a radioactive, colorless, odorless, and tasteless gas occurring naturally as a decay product of radium, and thus radon is not readily detectible or observable by the human senses.  Radon is considered a health hazard due to its radioactivity, and studies have shown a link between high concentrations of radon and lung cancer.  According to the U.S. Environmental Protection Agency (EPA), radon is the second highest cause of lung cancer after cigarette smoking, and radon causes an average of 21,000 lung cancer deaths per year in the United States.

Radon levels are measured by picocuries per liter (pCi/L).  An average of about 1.0 to 2.0 pCi/L is typical for indoor radon exposure, and the EPA recommends immediate remedial action for anything above 4.0 pCi/L.

Radon is produced by the radioactive decay of radium-226, which is found in uranium ores, phosphate rock, which has been mined extensively in Polk County over the years, shales, igneous and metamorphic rocks such as granite, and to a lesser degree in common rocks such as limestone, which is found throughout all of Florida.

Radon typically enters a building directly from the soil through the lowest level of a building that is in contact with the ground.  Entry points of radon into a building, particularly an older building, are cracks, gaps, and cavities in the building as well as the water supply.

Of great concern in Polk County is phosphate mining and the impact phosphate mining has had on the environment over the years.  Phosphate is typically found buried beneath an approximate 10 to 20-foot crust of ground referred to by miners as “overburden.”  Radioactive compounds containing uranium and radium, which are dug up during the mining process, are also buried beneath the overburden and mixed with phosphate.  Over many years, houses have been built on land which was extensively mined, particularly in the area between Lakeland and Mulberry along Highway 37 or what is known as South Florida Avenue.

 Whenever buying or renting property, it is important to read the fine print.  Florida Statute § 404.056 requires that any contract for the sale and purchase or rental agreement for the leasing of any building provides a warning about radon and its dangers.  While this statute warns buyers and renters, it does not have much bite.  If you are buying a home, be sure to pay close attention to the answers provided in the standard Seller’s Property Disclosure regarding any radon issues and have an attorney review all of the documents.  If you are building a new home, talk to your builder about radon prevention measures you can take.

If you are buying or renting a property in an area where there has been extensive mining, you should test for radon.  Simple test kits requiring a few days of testing are available online and you can hire a certified radon inspector to test for radon as well.  The devil is in the details, and it is important to know your rights when buying or renting property and the impact it can have on your health and the health of your family and loved ones.

The June 2nd edition of “The Law” will discuss legal issues surrounding poorly written contracts.

 Anthony Velardi is real estate attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A.  Anthony graduated from the University of Notre Dame in 2006 and Stetson University College of Law in 2009.  Questions can be submitted online to thelaw@cclmlaw.com.

HOA Political Signs

By:      Dan Rich
Clark, Campbell, Lancaster & Munson, P.A.

Q: Can a homeowners association prohibit the display of political yard signs?

A: As the 2016 presidential election draws closer, it is inevitable that we all will start seeing political signs popping up everywhere. You will find them plastered in windows, at most, if not all, intersections, and probably even along the median of I-4. But, oddly enough, one place you may not see any political signs is in your yard if you happen to live in a homeowners association.

The majority of governing documents for homeowners’ associations prohibit signs of any type from being placed on owners’ lots. But you may be thinking, “Can my association legally restrict me from exercising my freedom of speech?” The short answer is yes, and this is why.

Freedom of speech applies only when there is what is called “state action,” or in simpler terms government action. Basically, freedom of speech prevents federal, state and local governments from restricting our speech or restricting actions that express our views. But homeowners associations are private, not government, actors and therefore may impose restrictions and regulations on speech that the government simply cannot. Furthermore, when you purchase a home in a community that happens to be governed by covenants and restrictions, you are essentially entering into a contract where you have agreed to abide by all those rules and regulations. What this means is that if you live in a community that regulates the public placement of signs, you have technically contractually agreed to forbid yourself from placing any signs on your property, including political signs.

While published Florida case law may not have addressed the issue of political signs directly, a 1989 appeals court decision involving Quail Creek Property Owners Association in Naples sided with the association over the demand for an owner to remove a “For Sale” sign from his front yard. The court held that the association was not a governmental entity and that there was no “state action.” Therefore, the enforcement of the sign restriction did not violate the owner’s free speech rights. While this decision relates to a “For Sale” sign, and not a political sign, it is important because it illustrated the courts deference to the homeowners associations’ rules and regulations when there is no “state action.”

Understanding whether you can proudly display your political signs as the election draws closer and the debates intensify is an interesting legal question that requires owners to review their community’s governing documents, and for the association itself to consider whether or not to amend its governing documents to add language regarding signs.

The May 19th edition of “The Law” will discuss the effects of radon on property and particular concerns in Lakeland.

 Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com

Lost Mortgage Docs

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: What happens if the lender trying to foreclose cannot produce the original loan documents?

A: In February, the appeals court governing our region of the state ruled against a mortgage company trying to “reestablish” a lost promissory note.* Because debt is often sold several times, national banks have cumbersome files, or otherwise, lenders lose with surprising frequency the original promissory note that creates evidence of the mortgage debt. The loss of that note creates a hurdle to the lender proving it is owed anything, but the greater concern is that the current owner of the note is the only one who can enforce it. So, if a transfer of the note occurred, the original owner of the note does not have the right to collect. If the note is “endorsed in blank”, even without a formal transfer, whoever is in possession of the note may be able to enforce and collect upon it. Courts do not want to enter, and homeowners do not want to endure, a foreclosure judgment only to find someone else holds the note and claims that the full amount of the note is still due.

To avoid such a scenario, but to prevent banks from losing out on repayment of the loan, the Florida legislature has created a process that allows the bank to “reestablish” a lost note. Not surprisingly, the bank must prove the existence and right to enforce the debt. A bank might try to comply with a combination of the mortgage, other closing documents, and repayment history. A bank also has to provide a lost note affidavit, which, among other things, swears to the fact that the note has not been transferred.

The subject of the court case mentioned above, however, was adequate protection. The court must evaluate what reasonable means will avoid or protect the homeowner in the scenario where someone else pops up claiming a right to sue under the promissory note. The statute does not provide specific guidance on what is reasonable or adequate, and in fact it appears from the case law that a court could make the finding that no protection is needed under the circumstances. The problem in the recent appeal was that the court did not address the issue at all. A court might require a written indemnification agreement in the final judgment, a posted bond, a letter of credit, or some other security.

These issues should be considered and addressed if you face a lawsuit where the foreclosing lender has failed to produce the original loan documents.

The April 21st edition of “The Law” will discuss the appointment process and role of state and federal Supreme Court justices.

Questions can be submitted online to thelaw@clarkcampbell-law.com

 * The recent case discussed above is Blitch v. Freedom Mortgage Corporation, with an opinion filed by the Second District Court of Appeal on February 5, 2016. The case was remanded for the trial court to address the issue of adequate protection.

Foreign Investment in Real Property Tax Act

By:      Anthony A. Velardi
Clark, Campbell, Lancaster & Munson, P.A.

Q: I am interested in purchasing property owned by a foreign person.  What do I need to know?

A: During the past few years, there has been an influx of foreign investors from Canada, Europe, and South America purchasing property in Florida.  While purchasing property in Florida can be a wise investment for a foreign person, anybody buying property from a foreign person should proceed with caution.

The Foreign Investment in Real Property Tax Act (FIRPTA) was enacted by Congress in 1980 to require foreign persons pay taxes on gains when selling property located in the United States.

Under FIRPTA, the buyer, and not the foreign seller, is required to withhold a certain percentage of the purchase price at closing and remit that amount to the Internal Revenue Service shortly after the closing.  In most closings, the buyer usually enlists the services of the attorney handling the closing to handle the withholding and remit the withholding along with certain required forms directly to the IRS on behalf of the buyer.

FIRPTA does not apply to a resident alien if the resident alien meets what is known as the “Green Card Test,” which, as the name implies, requires the foreign person possess a Green Card, or the “Substantial Presence Test,” which requires determining how long the foreign person has been present in the U.S. over a certain period of time prior to the closing.

A foreign person includes a nonresident alien, foreign corporation, foreign partnership, foreign trust, foreign estate, and any other person that is not a U.S. person.

Recently some changes have been made to FIRPTA, and effective February 16, 2016, in some cases, the standard 10% withholding amount has been increased to 15%.

Most types of U.S. income received by a foreign person are subject to a federal tax of 30%, but a reduced rate or exemption may apply if there is a tax treaty between the foreign person’s country of residence and the U.S.  If the amount withheld exceeds the amount eventually due from the foreign person, the foreign person may obtain a refund from the IRS.

In some cases, if the buyer intends to use the property as the buyer’s personal residence, no withholding is necessary.  However, a buyer should beware of any foreign seller who is pressuring the buyer to claim the personal residence exception in order to avoid withholding if that is simply not true.  Under FIRPTA, the buyer’s liability can be up to the amount of tax to be withheld plus interest.  Furthermore, if the buyer willfully fails to withhold or notify the IRS, the buyer commits a felony and could face imprisonment up to five years and a $10,000 fine.
If you plan to purchase property owned by a foreign person, make sure the attorney handling the closing is familiar with FIRPTA, asks all of the right questions, and handles the withholding aspect if necessary.

The April 7th edition of “The Law” will discuss how courts are handling foreclosures when banks lose the original mortgage documents.

 Anthony Velardi is real estate attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A.  Anthony graduated from the University of Notre Dame in 2006 and Stetson University College of Law in 2009.  Questions can be submitted online to thelaw@clarkcampbell-law.com.

Construction Defects Damage

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: How much can I recover from construction defects in my home?

 A: Construction defects commonly arise from a contract relationship between a homeowner and builder. Florida law regarding contracts generally allows a person harmed by poor performance to choose between getting his money back while returning or subtracting any valuable benefit that he actually received (sometimes called “going pre-contract”) or obtaining the expected benefit or value of the contract (sometimes called “going post-contract”). An example of going pre-contract is when you buy a lemon of a car and obtain a refund for what you paid in exchange for giving the car back to the seller.

For construction defect cases, you are often better off going post-contract so that you can get the project completed and enjoy your home. For example, if a contractor leaves you with a leaky sink, you typically just want the sink fixed. This would be going post-contract. So, under Florida law for construction defects, a homeowner can sue and get a judgment against the contractor for the reasonable cost of construction and completion according to the original deal.

But what if a defect causes the house to be practically worthless?  That is what happened to Angela Gray of Hillsborough County, who represented herself in a case that led to a jury verdict in her favor of $168,000 (the construction price for the entire house). But the judge knocked the verdict down to $16,000, which was the price that the homeowner paid for the replacement of a balcony, apparently because the homeowner had not shown any other concrete amounts paid or damages sustained from the leaky and rotting house. In an appeal, this time with Ms. Gray having retained the assistance of an attorney, the jury’s verdict was reinstated, because the jury could have reasonably concluded from the testimony of a general contractor (not the original builder), a real estate agent, and a structural engineer that the house was better bulldozed than repaired. The homeowner did not even have to attempt to prove the cost to repair. Instead, where construction and completion according to the original deal would be economically wasteful, the homeowner could seek and get a judgment for the difference between the value of the product sought and the value of the performance received. As the performance received was worthless according to the jury, it is reasonable to say that the construction price was roughly the value of the performance Ms. Gray expected to receive.

This construction defect case is unique not just because there was a determination that a homeowner received a worthless house, but also because there was no need for extensive evidence on the value of performance received or the cost to remedy. Most construction defect cases benefit from having the right legal counsel and expert testimony to establish damages with relative certainty.

The March 10th edition of “The Law” will discuss proposed changes that could provide more workers with rights to overtime pay.

Questions can be submitted online to thelaw@clarkcampbell-law.com