THE HOA SECURITY MYTH |
You live in an HOA gated community. You have high walls, a guardhouse and a patrol to keep intruders out and to protect your belongings. You’re safe right? Wrong! What you don’t realize is that you have a far more serious hidden threat right within the walls of the complex that is waiting to blindside you swiftly and silently if you make the wrong move. The very people who built all this false sense of security for you can steal your home right from under your nose. How can this be, you ask? To answer that question you have to understand other, not so obvious realities that come along as excess baggage when you chose community living Florida has three prisons systems. If you commit a crime you either end up in the Juvenile or the Adult prison system depending on your age. Half of Florida’s residents volunteer for the third one, a Florida Association. Membership is mandatory for any buyer. What do the three systems have in common? To varying degrees, they all deprive you of some of your rights. What is different between them? In the first two you know the consequence of your actions, in the third, you don’t. When you chose to move into a Florida association complex, be it a Condo, a Coop, a Homeowners', or a Mobil Home Park association, the State of Florida demanded you surrender certain personal rights, which you did when you signed the Association Covenant agreement documentation. The State of Florida empowered the association board of directors to enforce that covenants. The association is a legal entity recognized by the State of Florida (a corporation not-for-profit; a quasi government with powers that no other government agency has. It is the prosecutor, judge and jury). The association assumes many important and far-reaching powers New buyers fail to realize this and the vulnerability they are placing themselves in and how much they are surrendering when they waiver the homestead protection which they are doing when they sign the association governing agreement. When you waiver your homestead rights you expose yourself to foreclosure, an action that only an unprecedented few can take. What is foreclosure you ask? In simple English, foreclosure takes your house from you and you loose everything you put into it. In Florida your house, where you live is your homestead. The Florida Homestead Act is unlimited. It supercedes every other state law. Your homestead is free from foreclosure against creditor claims except in two issues, one is the situation involving a government claim. The other is when you voluntarily allow it to happen for example, the mortgage company when you buy the home. It is a private contract that tells your bank if you don’t pay the loan, they can take the house from you. The agreement falls under private contract law. In this case when you sign that contract you know full well what is going to happen if you violate the contract. It was a conscious effort. It’s not quite so obvious when you buy into an association. When you go to the closing table buying into a deed restricted community, one of the documents you get states your buying into such a community and that you agree to abide by its rules and those rules can be enforced by foreclosure. When you sign this document you are contractually waiving your homestead constitutional rights of exemption. Keep in mind that at the closing the realtor, seller and buyer are all anxious to close the deal and little light is about to be shed on bad news. It’s usually “we have one more document to sign and were done.” What is it?” “It’s the community deed restriction”. Low and behold you have just signed on to Florida’s third prison system without hint to that effect. Let’s put this waiver you just signed in context. For example
Why are they allowed to do this you ask? They will tell you they need to get paid to run the place. Everybody agrees that associations need the assessments to be paid for them to meet their obligations. They operate on a budget and expect the revenue to be there on time. Revenue from imposed fines however does not meet the test. They are unplanned (you hope) windfall revenue. The legislature finally saw this and the 2004 legislation will prevent associations from converting fines to assessments, which can then lead to foreclosure. But we still need to focus on the approved method of collection for late assessments. Foreclosure (the taking of ones home) is unacceptable. Foreclosure is a silent national epidemic. It is the rape of the American dream. No one should lose his home and a lifetime of equity over an unpaid bill. Usually for a few dollars, before the lawyers inflate it with their collection fees. Bills can be collected in other ways that won’t violate constitutional rights of individuals. Foreclosure is like using a bulldozer to bury an ant. Tom Adolph, a Texas attorney put it best when he said that foreclosure was the nuclear weapon in an associations enforcement arsenal and its overkill. We, living in Florida HOAs, have homestead exemption and we want our homestead protection back. There is no reason why we should have to surrender this protection to move into a Florida Homeowners' Association. HOA Foreclosure has to be made illegal. The 64 thousand dollar question remains: With all these known facts how can the Florida Legislature not take action to kill foreclosure. The answer to that question remains illusive and may only be found at the polls. |
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