Has a Pasco County HOA gone too far?

Article and Video Courtesy of Channel 8 News, Tampa

Published May 1, 2012

 

WESLEY CHAPEL -- Joanne McCarn owns her home, but her homeowners association has taken it over and calls the sheriff's office if she comes near the property.

What's more, the Bridgewater Community Association evicted her tenant, changed the locks and moved in its own renter.

"This is not a foreclosed house," McCarn said. "This is still my house. It's unfair how much power the HOA has. It's so surreal to me."

The association's president and attorney aren't talking. Public records detailing the steps they have taken show McCarn's house is just one of six the association is seeking to rent out. That doesn't count homes the association has taken in foreclosure and is now renting.

It's a tricky legal path for a group that has gone to extreme measures before to recoup money it lost in the housing downturn. Last fall, the Bridgewater Community Association made headlines by charging hundreds of dollars in fees to people seeking to purchase houses in foreclosure.

"Taking possession of the property and renting the unit out, that part is not something afforded by the law," said Ben Solomon, a south Florida-based homeowners association lawyer.

Solomon works on behalf of associations nationwide to collect past-due fees from homeowners. He's typically in favor of forcing delinquent homeowners to pay up.

But in this case, Solomon said, the Bridgewater association and its president, Mark Spector, went too far.

The association did persuade a judge to issue an eviction order for McCarn's tenant and order a receiver appointed to manage the property.

In Solomon's view, that doesn't make it right or legal. It's more a measure of how complicated the housing bust has grown.

"Judges rely on what rights attorneys tell them their clients are afforded under the law," Solomon said. "If there's no attorney on the other side to argue that it's wrong, the judge most often takes the word of the attorney and grants the motion. Plus, these judges hearing these cases usually are not experts in real estate law."
   
Solomon and other legal authorities contacted by the Tribune say the eviction may be legal. The reason: McCarn moved a tenant into the house without paying off a lien the association had imposed.

But there are no legal grounds, Solomon said, for the association to change locks and move in another tenant.

The association imposed the lien in 2009, but McCarn said she never learned about it until later, when the association persuaded a court to evict her tenant for nonpayment of the rent. The association had demanded that the tenant stop paying rent to McCarn and pay it instead.

There is no legal requirement to notify a property owner when a lien has been imposed.

The lien amount was $2,565. McCarn doesn't fully understand the itemized accounting the association later provided her, but it appears to include special assessments imposed broadly in Bridgewater because so many homes are in foreclosure. But most of the lien appears to be fines and legal costs unique to McCarn and a $500 "rental fee."

She said she had been keeping up with her annual homeowners association dues of $225 but missed one payment when her mother died. She said she's willing to pay what she owes, but she thinks the association is tacking on fees just to rack up her bill.

"We did everything we thought was right to resolve this," McCarn said. "I even went to Mr. Spector's house to try to resolve it. He threw me off his property. He threw my husband off his property."

McCarn said her tenant, a single mother of five, was given just 24 hours' notice to leave. It was particularly difficult, McCarn said, because she had made a deal with the woman: Clean up and paint the house, and stay rent-free for three months. McCarn said the woman kept her end of the bargain but had to leave anyway.

McCarn said she received a phone call from a neighbor a week later with more disturbing news: A U-Haul was parked in front of her home, and a new family was moving in.

The new family, Spector told the Pasco County Sheriff's Office, is paying rent to the association. The association has hired a real estate agent to market homes for rent that it has taken possession of, records show.
  
This isn't the first time Spector and the Bridgewater group have faced complaints about their practices. In 2009, real estate agents objected to the $500 fee to rent out a house and to the association's vetting of prospective residents. They even considered ways to replace board members. In 2010, agents accused the homeowners association of running off buyers.

In one case, a prospective buyer was told two days before closing that he had to pay $14,000 in fees for cosmetic work or the association would quash the sale. The buyer, who said he wanted to do the repairs himself, walked away from the sale.

Spector won't return calls for comment, but in the past he has noted the challenges Bridgewater faces from the housing collapse.

Miami-based Lennar Corp. built Bridgewater at the peak of the housing bubble, promising buyers it would be 90 percent owner-occupied. By the time Lennar left in 2007, the community was nearly two-thirds investor-owned. Things deteriorated rapidly when the housing bubble burst, leaving Bridgewater riddled with vacancies.

In 2010, Spector was unapologetic about how the association is dealing with the challenge.

"I'm paying on a $400,000 mortgage when someone else walks in and pays $140,000 for the same house," Spector told the Tribune. "We have people who haven't paid a payment in four years, and they want us to let them out of their bad debt. That's not going to happen."

Meanwhile, McCarn has hired a lawyer and plans to take the case back to court next month. She's asking a judge to give her back control of her home.


The community is the BRIDGEWATER COMMUNITY ASSOCIATION, INC.

President and Treasurer: Mark Spector

Association Attorney: Geraldine Holloway, Esq.

 

Please watch the video!



COMMENT

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

  

It is just unbelievable what some board members and their attorneys cook up! Not even in Russia could a deeded owner of a property get arrested for entering his own property. I wonder who threatened the deeded owner with arrest?

  
Board president Mark Spector and the association attorney Geraldine Holloway should be reprimanded and forced to pay a huge amount of money to the owner for punitive damages -- if that's possible. I have seen lots of power-hungry board members who think they are above the law, but stopping a deeded owner from entering his/her own home?

  
I blame as well the association attorney for this total abuse of power. Geraldine Holloway, Esq. should have known better than to support such nonsense. As a professional, Holloway should have known that the Florida statutes plainly don't allow such property-grab before a successful foreclosure has taken place. 

 

Honestly, I sometimes wonder if it's the Florida sunshine that makes people do weird things!

  

This is the provision that allows an association to collect rent if the property owner failed to pay any monetary obligation due to the association, but it surely doesn't say that the association can take possession of the home after evicting the tenant.  Also, the provision doesnt allow the association to rent the home to different renters who pay rent directly to the association, dispossessing the deeded owner.

 

I know HOA laws have gone pretty far, but taking possession of a property without getting official title is going too far. Are there still property rights effective in this state?

 

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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