My Opinion: By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

Published August 27, 2011

The founders of CCFJ agreed on one thing above all:

FAIRNESS IN ASSOCIATIONS IS OUR GOAL!

Since the year 2000, we have worked very hard to create legislative changes to help owners living in Florida's community associations to deal with the many problems created by a system that does everything but protect the property owners in community associations.

In 2003/2004 CCFJ board member Karen Tysenn and I served as members of the HOA Task Force, together with Barbara Katz, a member of C.O.B.W.R.A. Three homeowners against twelve attorneys and other service providers. We homeowners warned about lack of safeguards, about the problems of adding more and more bulk contracts, about the lack of education and the need for easy enforcement. We were laughed out of the room. When I dared to mention that there might be problems one day, some of the other panel members looked at me as if I came from Mars.

Don't forget, at that time many of these service providers thought that life was just great and that they could one day swim in a pool filled with gold coins and money, like the Scrooge McDuck of their childhood.

Nobody wanted to listen – and we see the results today. If things would have been changed in 2004 – as proposed – we wouldn’t have many of the problems our associations (meaning the owners that still pay their dues and assessments) are facing today.

Desperately needed are REAL legislative reforms, not the feel-good measures that were enacted by the legislators in the last two legislative sessions.

In former times I heard daily complaints about dictatorial board members, incompetent managers and idiot attorneys. Now I get lots of complaints from owners and board members alike about the folks that stopped paying, but still live in these communities at the expense of their neighbors. And that makes association members absolutely mad, especially when they see these non-paying neighbors coming home with Bloomingdale shopping bags and/or a brand new Mercedes. Make no mistake. Lots of people have given up trying to pay the mortgage, property taxes and association dues. But they are playing the system, knowing full well that the day will come that they get kicked out. But they prolong the process by fighting the foreclosure, hoping to live there as long as possible at the neighbors’ expense. Some have money to pay attorneys to prolong the process.  Others get their info from the Internet, filing frivolous motions that enable them to stay even longer in their homes and condo units -- at the expense of their neighbors. 

Disallowing owners in arrears to use the community pool surely doesn’t bolster the finances of the association. Allowing the board to cut off certain services isn’t really useful either, if we are talking bulk contract. The monthly bill stays the same, no matter how many services you disconnect. Praising the banks to allow a provision in the bill to increase the liability from 6 months to 12 months – whoopie! In most cases the 1% clause kicked in before even 6 months back-dues were reached.

If we really want to help the remaining owners in good standing, we need to push legislation that will help the owners that still pay to survive this crisis. Make no mistake – this will not be over soon.

Service providers have to help by supporting owner-friendly legislation – otherwise they will soon have no more folks to SERVE. 

When it was time to put together proposals for a bill for the upcoming legislative session, this serious issue was taken into consideration and an attempt was made to stop owners, who haven't paid dues and assessments, from abusing the system for years. As a result, a provision was created that ended up as item No. 2 in a bill with 6 provisions that is being promoted by an advocacy group named C.A.M.P. -- on their website at http://www.camp2012.net/.

This is the summary of the provision in question:

2.  During the pendency of any foreclosure action by the association against a unit owner, the unit owner must place the assessments for the condominium or homeowners’ association into the court registry as they come due.  This is exactly what the current landlord/tenant statute allows for.  Failure of the defendant to place the assessments for the condominium or homeowners’ association into the court registry would allow the association to obtain a default.
  

Considering that the Third District Court of Appeal State of Florida just stated in a recent ruling

 [CORAL WAY CONDOMINIUM INVESTMENTS, INC. v. 21/22 CONDOMINIUM ASSOCIATION, INC.]

that there is actually no real defense against foreclosure for unpaid dues and assessments, it is absolutely realistic to say that minimum 95% of all defenses filed against association foreclosures for unpaid dues and special assessments under FS 718.116 + FS720.3085 are frivolous and have no other goal than to prolong the process.  Make no mistake, all the extra cost can never be recovered by the association. Many of these folks eventually move out of state – and laugh about the "stupid" neighbors who financed their lifestyle for years. Remember: We are not talking lender foreclosure here -- no forged documents, no robo-signing.

If we don’t urge Florida legislators to take real action, many more people will lose their homes caused by the community association system – not because they didn’t pay their mortgage and taxes. Let’s create easier enforcement of the statutes and rules, a fairer election system for HOAs and some provisions that will put some money into the association coffers. These were reasons enough for me to throw my support behind this bill.

To be very honest, I was absolutely surprised when some attorneys attacked this provision, claiming that this provision is unconstitutional, would increase litigation and would take away valid defenses from owners -- meaning defendants in foreclosure proceedings. This provision was even called “anti-homeowner” and I was even accused of supporting a provision that is in total opposition to what CCFJ stands for.

Plainly, I don't think that anything in this bill proposal is “anti-homeowner”! In my opinion all these six (6) provisions will actually help associations and the owners that still pay to deal with the financial crisis caused by unpaid dues and/or foreclosures.

 
I am not approaching this provision from a legal issue -- I am just trying to use common sense. And common sense tells me that it's outright unfair to force owners to pay for neighbors that stopped paying.

   
When I examine this provision from every angle, I really can't find anything that could be considered unconstitutional. We are talking here about dues and assessments these owners are required to pay by contract anyway. So asking the owner to pay these dues into the court registry shouldn't concern any owner who fights foreclosure proceedings in the assumption that he/she is right. If the defendants win, these dues must be paid anyway and they get back all legal fees. But it stops owners from filing frivolous defense motions without having to pay the dues first. I consider it a security deposit, something very commonly used in daily life -- used as a method to prevent somebody from running out of a deal or failing to pay a bill. And I don't see anything wrong with it. I think it will keep owners HONEST when they consider filing defenses against association foreclosures!

The big question is actually a matter of philosophy: WHAT IS FAIR? Who do we need to protect? I think the owners that are still paying the agreed upon dues have a right to protection; even if I feel sorry for some of the owners that stopped paying dues and assessments because they got in financial troubles caused by our economy, ill health and/or unemployment. But it's definitely UNFAIR to expect the neighbors to pay their bills. Many owners paid everything they agreed to pay, but get into financial trouble caused by increasing dues and special assessments when neighbors don’t pay their share. In my opinion these owners that still pay need legislative protection -- and it is definitely FAIR to create laws to help protect their financial welfare.

  
How about the argument that this provision would increase litigation? In my opinion this provision only kicks in if litigation has already started. This provision surely doesn't trigger any new litigation as far as I can see it.  And since the provision will be directly part of chapters FS 718.116 and FS 720.3085 if enacted as proposed, it can only be used for foreclosure filings under these chapters -- nothing else.
  
It is hard to understand how requiring a defendant to pay the money owed into the court registry would take away valid defenses from these owners. I think that bail is a daily part of the justice system in this country -- and I have never heard the argument that setting bail takes away anybody's defenses. Why would forcing the defendant to pay a security deposit in the court registry take valid defenses away from a defendant? I am not an attorney -- never claimed to be one -- but common sense tells me that this argument is bogus. One of the arguments was: What if this provision is used for other cases, not directly related to foreclosures for unpaid dues and/or assessments? The way I see it -- if it's not an issue dealing with unpaid dues and/or assessments, this provision is not to be used anyway.

If the proposed bill will find sponsors in House and Senate, the draft goes to bill-writing, where it will be properly formatted and checked for any possible flaws, like violating the Constitution or other statutes already on record. This analysis will be written by experts, who deal with these issues on a daily basis. After getting back the analysis the sponsors make changes, if the analysis shows legal flaws or even constitutional issues in the provision.

I have been wondering why some opponents were unwilling to wait for the two unbiased analyses we will see if the bill actually finds sponsors in House and Senate. I suspect that these unbiased analyses will not confirm the claims they are making and they know it. That's my opinion why they insist to remove this provision immediately. They were not even willing to discuss any changes to the wording to remedy possible flaws. 

If the flaws they claim to exist are confirmed by the two unbiased analyses, the legislators will make the needed changes anyway. Every legislator would balk if the analyses for the bill were to state that the provision is unconstitutional -- and would ask that this provision be reworded or totally removed -- depending on the analyses. 

I think that I and the CCFJ members supporting this bill are still on the right path of pursuing 

"Fairness in Associations is our Goal!"

In my opinion this bill proposal doesn't ask for anything that is UNFAIR -- and I think it is about time to protect the many owners that are suffering financially, caused by a system that fails to protect the owners that still pay. 

   
You all know that I spoke out against the provision requiring renters to pay the rent to the association if the landlord is behind in paying dues to the association. It was not because the associations don't deserve the money, but because I still believe it isn't fair to put the renters in the middle of a war between association and landlord. With this provision in place, renters pay in good faith, only to be kicked out eventually anyway -- and losing their security deposits in the process. I think using the renters as a punching bag isn't FAIR. So much for FAIRNESS!

Please make up your own mind if it's FAIR to demand these defendants in foreclosure proceedings to pay the dues and assessments they supposedly owe and that will come due during the court proceedings into the court registry. 

You will find the whole bill proposal at the website of C.A.M.P.

If you like the proposal and you are an owner still paying dues and/or a board member of an association with financial problems caused by unpaid dues and assessments, please support this attempt to create laws that will help to deal with the financial crisis.  If you feel it's NOT FAIR, please oppose it. That's the way our country is supposed to work!

Oh, by the way, in case the bill proposal doesn't find the needed legislative sponsors, the whole heated discussion was for naught anyway! That's minimum my opinion -- and last I heard, opinions are still allowed in this state.