YOU SIGNED A CONTRACT -- BLA-BLA-BLA! |
An
Opinion By Jan Bergemann Published July 19, 2011
CONTRACT LAW seems to be the "Holy Grail" for some attorneys and judges. Every time some owner claims that things are not done the way it was stated in his original contract (CC&Rs), some attorney tells him/her to sit down and shut up: "You signed a contract..."
Rumor has it, spread by some attorneys and a certain trade organization, that contract law even trumps the US and Florida constitutions. Not everybody agrees [See: ASSOCIATION FINES ARE UNCONSTITUTIONAL] and especially the SUPERIOR COURT OF Rhode Island absolutely disagreed [See: JAMES FOLEY v. OSBORNE COURT CONDOMINIUM, ET AL.].
But
here in
We all know that these HOA "contracts" are actually adhesion contracts.
We all know as well that most people don't even get the chance to read these "contracts." It's customary that purchasers at the closing are handed the Rules and Regulations (often hundreds of pages) and are being told: "Initial here that you received them."
And then comes the "choice" argument -- another ridiculous argument we hear often from HOA proponents. Let's face it: What choice? In many areas here in Florida there is no choice if you want to buy a home less than 10 (ten) years old -- or even an empty lot. There is absolutely nothing available that is not inside an association.
Let's get back to the contract laws and rights and: "You should have read the contract before you signed on the dotted line."
That's plainly some more bogus argument, because these adhesion contracts are permanently changed if if The Powers That Be feel so inclined. And our legislators, who seem to be more interested in filling their campaign coffers -- or maybe even other pockets -- instead of serving their constituents according to their oath of office, don't mind passing bills that TRAMPLE UPON THE RIGHTS OF HOMEOWNERS.
How would you feel about this protection by contract?
Look at this example -- just one of many.
In 2003 a family is looking to purchase a nice home. But the many horror stories about dictatorial boards you can read daily in the media warned them and they did their homework. They obtained the deed restrictions for a community where they liked a home and read -- through all the 250 pages. No mention of the association having the right to fine its owners for any violation. They even looked up the Florida statutes and found out that fines can only be levied "If the governing documents so provide..."
Protected by contract and Florida statutes, the family bought the home and hoped to live there happily ever after -- without the danger of getting fined by an overeager board.
In 2004 the Florida legislature even added more protection for homeowners, after the HOA Task Force listened to the horror stories of owners that got hit by outrageous fines -- not necessarily because they violated any rules, but because they didn't stand at attention when the board members and their buddies said so. Never forget that fines and liens are a dictatorial tool -- similar to protection money -- if used by power-hungry board members. This is the language the HOA Task Force created in FS 720.305(2):
Meaning: Even if the governing documents allowed the association to levy fines, the fines could not be enforced by filing liens -- a big money-maker for attorneys.
Despite
the fact that The Powers That Be (especially attorneys) made various attempts to
amend this provision and overturn the wording created by the HOA Task
Force, it took until 2010 before they were able to convince the
Whoever wrote the language made a total mess out of it -- and confused nearly everyone. Not only the important language "If the governing documents so provide" disappeared, but the legislators added as well the dangerous language "A fine of less than $1,000 may not become a lien" -- meaning fines above $1,000 can become a lien -- and many governing documents allow fines above $1,000. The provision as written was ridiculous in itself: Fine a person for not paying "monetary obligations" on top of charging late fees and legal fees?
I sometimes wonder if certain people switch off their brains before writing such ridiculous language. But no matter what, the legislature clearly removed the contractual rights of the family in the example above.
The legislature corrected the language of 2010 -- somebody must have realized that the newly created language was nothing but a joke. But the new language in 2011 again tramples upon the rights of families that relied on their contract rights when buying their home in a HOA in 2003 -- which clearly allowed no fining -- supported by the statutes at that time.
Abracadabra -- protection is gone, attorneys get more billing hours and dictatorial boards more power to blackmail owners -- no matter what the original contract said. This is just one example of many showing that these so-called contracts aren't worth the paper they are written on. While owners are always being told to remember the contract they signed, our legislators trample upon the contractual rights of homeowners like a bull in a china shop. No wonder that many homeowners living in mandatory homeowners' associations in Florida feel like they are being treated like Third-Class Citizens.
ONLY IN THE USA -- THE LAND OF THE ONCE FREE!
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