Florida Foreclosures – What’s Happening Now?

Posted By on December 18, 2014

December 2014 update on what we are seeing now with Florida foreclosures and related issues –

1. Foreclosure filings have remained steady in the last few weeks – this observation is based upon the number of calls we are receiving and on the number of lis pendens being filed, per week, in Broward County Public Records – (Broward County is the 2nd largest County in Florida by population) – Last week the number of foreclosure filings was 248 which is up slightly since the last time we reported the number of weekly foreclosures.

2. Refiling of Old Foreclosure Cases - the banks don’t want to let go of those cases that they voluntarily dismissed or those cases that were dismissed by the court for lack of prosecution or for failure to comply with standing court orders.  We are seeing more and more cases being refiled – (in a lot of instances these cases are being refiled by the Choice Legal Group).  I guess with the changes in the law related to lost notes and/or lost Notes being “found”, the banks are trying to take another bite of the apple.

3. Florida Deficiency Filings – Based upon the number of calls we are receiving, there has been a reduction in the number of deficiency judgment cases being pursued by Dyck O’Neal  – however, a number of homeowners are just now being served on cases filed before the July deadline (due to homeowners  either having moved out of state or having never lived in the State). Read:

4. Foreclosure Defenses – the one question that we still are asked by clients relates to lost promissory notes. See:

5. Foreclosure News – The 3rd District Court of Appeal in Florida issued an opinion (Deutsche Bank Trust v. Harry Beauvais) which stands in contrast to the Bartram case – which dealt with the issue of whether or not a Florida Bank can file a new foreclose lawsuit 5 years after a foreclosure lawsuit is dismissed.  The result of this conflict will require the Florida State Supreme Court to consider this very important issue and hopefully resolve the issue once and for all. Stay tuned.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Security in Florida Condominums: Privacy Concerns for Condo Owners

Posted By on December 16, 2014

For many Florida condo owners, one of the main reasons why they chose to live in a condominium community instead of a single family home is because of the sense of greater security. There is safety in numbers, of course.

Condominium associations as well as property managers have a responsibility to make sure that residents are safe and secure in their homes as well as in their use of the common areas. These are duties provided both by Florida Condo Law  as well as the particular provisions of the documents controlling the condominium.

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Advanced Security Technology Is Cost-Efficient for Condo Boards

However, as technology advances rapidly in the 21st Century, there is an ability of a Condo Board and a property manager to provide security in ways that may never have been foreseen at the time that the condominium documents were drafted or Florida condominium laws were passed.

Florida condo owners are seeing visual monitoring being set up in more and more places within their community: from elevators, to parking garage levels, to common areas like pools, spas, and tennis courts.

Whether those cameras are being fed to a live monitoring station (say the guard in the entry point guard house) or it they are merely recording events without a human watching what is happening will depend upon the financial investment and wherewithal of the particular condominium association.

Privacy Concerns of Condo Owners Over Condo Security

1. Condo Boards Should Not Act as “Big Brother”

Today, condo owners also have a concern that the need to provide a secure environment has become an excuse for some Condo Powers-that-Be to spy and monitor activities in unacceptable and even in illegal ways.

In a lot of circumstances, the response to these concerns (concerns about technological advances allowing managers and board members to spy on residents) are usually based upon budget issues: it is much cheaper and more effective to install security cameras than it is to hire more security guards.

These video recordings, which are made as part of the condominium’s operations, should be considered a part of the condo’s Official Records. Any condo owner who has an issue with the video surveillance being undertaken should follow the appropriate procedures and request access to and view the videos.

If there are concerns about privacy, then a Florida condo lawyer should be contacted so he or she can evaluate whether or not an owner’s privacy rights are being violated.

2. Condo Owners Spying On Each Other

These modern technological advances in securing property from crime or other hazards (fire, for instance) are not limited to commercial models. Individual condo owners have the opportunity today to purchase all sorts of security devices to keep their homes and cars safe. Some of these even provide off-site access (like nanny cams) as well as off-site control (turning lights, cameras, etc., off and on via a smartphone).

Most condominium associations will have no control and probably no concern over an individual condo owner installing these security technologies within their unit. It is their home, after all: if the condo owner wants to turn on their living room lights from their phone as they leave the office, then they have the right to do so.

However, Florida law does require the condo unit owner to obtain approval from their Condo Board if their security cameras will be able to video any common areas or shared space. For instance, placing your personal camera equipment on your balcony to protect against burglary of your unit through the balcony access is fine. If that camera is going to capture movement on neighboring balconies, or condo walkways, etc., then the Condo Board must approve the installation of this camera.

Condo owners may have some privacy concerns if their neighbor’s security camera is trained not just on the owner’s front door, but also toward common areas or walkways. Unit owners with cameras that pick up parking garage traffic, or grab video of activities in condo windows or balconies can indeed infringe upon the privacy rights of condo owners and their guests.

Whether or not this is inadvertent surveillance or intentional spying upon fellow condo owners depends upon the situation, and once again, a Florida condo lawyer can evaluate these concerns to identify any possible privacy right violations.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

When Can a Florida Condo Board Authorize and Direct Entry Into Your Condo Unit?

Posted By on December 9, 2014

Florida condominium life is truly its own lifestyle. People move here from all over the nation and all over the world to enjoy our sunsets, our beaches, and our unique Florida activities. Many choose to live in one of the many Florida condominium communities, including the numerous condo towers that line the Florida coastline.

However, choosing to live in a condominium means deciding to live where homeowners join together in both time and money to maintain and keep their community thriving and a safe place to live. Living in a condominium unit is different from living in a single family home in one key way: as a condo owner, you must allow the condominium association and its board of directors (the “Condo Board”) access and entry into your home.

 

Privacy in Your Florida Condo Unit

For some, giving up some privacy in order to live in an oceanfront condo isn’t a big deal, especially when the unit is looking out over our white sandy beaches and deep blue ocean waters. However, it doesn’t take too long before some condo owners feel the angst and frustration of having to allow access to their unit by their Condo Board.

Condo Association Has The Legal Right of Access to Your Unit

Still, Florida Statute 718.111(5) mandates that Condo Associations have a clear and legal right to access a condominium unit. Florida law allows the association an “irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair or replacement of any common elements or any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.”

Just imagine how this right of access may be used to frustrate or bully a condo unit owner by an out-of-control condo association! It’s no wonder that this “irrevocable right of access” prompts condo owners to seek counsel from a Florida condominium lawyer to complain about people coming into their condos and interrupting their quiet use and enjoyment of their home.

Courts Are Limiting Right of Access to Units

Of course, there have been lawsuits filed by condo owners over abuse of the right of access by Condo Associations here in Florida. And some of these condo owners have won their fights, with their victories helping fellow condo unit owners across the state.

1. Condo Unit Owners Win Court Fights on Right of Access

In two recent cases, Florida courts have come down with condo law in favor of protecting the privacy of the condo owner. First, in Small v. Devon Condominium B Association, after a condo owner had allowed the association access to her home for many years to spray for bugs, she decided to use an alternative pest control treatment that was safer for the environment than the chemicals used by the association’s service. So the monthly access to her unit stopped. No problem for four years; then the Condo Powers-that-Be decided that the unit owner should use their chemical service regardless of her concerns.

The condo owner fought back, and after going through an arbitration, a civil trial, and a civil appeal she won. The Fourth District Court of Appeal held that the condo association had to show the court that it was truly “necessary” to gain access to the condo unit under the Florida right of access law.

This was a decision based upon the earlier case of Hollywood Towers Condo Association v. Hampton, where the unit owner’s privacy was invaded as the Condo Association’s construction expert decided that the unit’s balcony needed major construction changes as part of exterior repairs to the building itself. The Condo Owner fought back, arguing that his independent construction expert found there was no need to do anything to the condo’s balcony and access to the unit was not needed or necessary. The balcony needed no repair, according to the owner’s expert.

The court agreed with the unit owner, the Condo Association didn’t have a broad and all consuming right of access to the unit just because there are repairs being made to the building itself. The Condo Board would have to justify how it was reasonable to do construction on the individual unit’s balcony.

2. The Test Condo Association Must Meet to Have Right to Access Your Unit

For Condo Associations and their Condo Boards, it’s not enough to read the condo documents and read Florida Statute 718.111(5). Condo unit owners have a right given to them by the Florida courts, to have Condo Associations pass the following test before they have a right to access the home of that condo owner:

1. The Condo Board must show that it has the authority to do the action under the condo documents; and
2. The Condo Board must also show that what it wants to do is reasonable to do under the circumstances.

Florida condo unit owners need to understand that it is true that they have given away some of the privacy that they would have had in a single family home in order to live the condo lifestyle. Their Condo Association does have the right of “irrevocable access” to their home — it’s the law.

However, courts are requiring those Condo Associations to confirm that their actions are truly necessary, and to be able to support this with facts if the unit owner demands it. Unit owners that suspect that the access is not truly necessary have the opportunity to challenge the Condo Association’s action through the courts and with the help of an experienced Florida Condo Lawyer.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

What Can a Florida Condo Owner Do About an Annoying or Irritating Condo Neighbor?

Posted By on December 2, 2014

You live in a beautiful South Florida condominium. Every morning, you can watch the sun rise over the Atlantic Ocean from your balcony. In the evening, you can walk along the beach. There’s no yard to mow, no snow to shovel. The Florida condo lifestyle is a dream come true for many Floridians.

Until there’s a problem with the neighbors.  After all, the owners in a condominium have to live together, sharing common areas and respecting each other’s quiet enjoyment of their homes.

 

Florida condo owners can face all sorts of hassles and headaches in dealing with their fellow owners. It can be little things, like a new neighbor who needs to learn the rules of the community and turn down his stereo after a certain hour. Maybe it’s a downstairs neighbor who is learning to cook, and until they succeed, fellow condo owners suffer through the smells of burning food and failed dinners.

What can a Florida condo owner do when another owner’s behavior is bothering them?

1. Friendly Chat With the Other Condo Owner

Hopefully, a simple chat between the condo owners can solve the issue. Most condo owners understand that part of condo life is working with their fellow owners and losing a little freedom and learning to compromise in order to live in the condominium project comes with this form of home ownership.

Any responsible condominium lawyer is going to suggest that the best resolution is to work it out between the two of you. Sometimes, a nice chat between nice people is all that’s needed to fix things — and it’s surprising how sometimes it’s so hard to approach a neighbor to begin this sort of discussion.

So, hopefully your annoying neighbor will be compassionate with your position and willing to compromise so both of you can happily enjoy your condo life. If they aren’t so understanding, then what can an owner do?

2. Complain to the Condo Board and Let the Board Handle It

First of all, a condo owner with a problem with a neighbor needs to read their condominium documents. Is the problem addressed in the rules and regulations? For instance, if there’s a sound curfew, then a new neighbor who is playing their music too loud past curfew is in violation of a clear noise regulation.

If so, then the owner can complain to the Condo Board and ask them to handle it. A formal notice can be sent based upon the violation of the noise regulation as part of the Condo Board’s usual procedures. Problem solved.

If the specific behavior isn’t specifically addressed in the documents, then it may be covered under the general provisions that forbid one owner creating a “nuisance” for another owner (or owners). Each nuisance case will be unique to the particular situation.

Unfortunately, the Condo Board may not judge the behavior to be the “nuisance” that the complaining condo owner believes it to be. The Condo Board may decide against the complaining owner. Then what?

3. File a Lawsuit for Nuisance Damages

Every Florida condo owner has the legal right to enforce the “nuisance” provision of the condominium documents, even if the Board doesn’t deem the behavior to be a “nuisance.” It is possible for the complaining owner to take legal action to stop the problem themselves, with their own legal action. This is independent of the Condominium Association and the Condo Board.

This is a big step to take, of course. First of all, you’re suing a neighbor and even if (when) you win, you’re still going to be living next door to someone you’ve taken to court. This doesn’t bode well for friendly atmospheres at condo-wide activities, or for calm and happy elevator rides between neighbors.

Second of all, it’s important to understand your chances of winning an independent lawsuit, one owner against another condo owner. In Florida law, “nuisance” has particular legal definitions and there are particular limitations on what the courts will consider to be a nuisance.

To win a nuisance lawsuit, the property owner must be able to prove with a preponderance of the evidence that there has been substantial and continuous harm to their free use and enjoyment of their property. This may be harder than it first appears; to constitute a legal “nuisance” here in Florida, there must be more than inconvenience or annoying behavior.

4. Offending Condo Owner Wins Nuisance Fight

Before committing to a lawsuit against another owner for nuisance behavior, it’s extremely important to visit with an experienced Florida condo lawyer to determine whether or not a lawsuit is the best way to handle things — and the chances of success should you take the problem owner to court.

For instance, consider the case of the Florida condominium unit owner who was angry that the Association wouldn’t put a trash can by the bank of mailboxes so she could sort and toss her junk mail there. In protest of the denial of her request for a trash can, the owner began tossing her trash mail on the floor in front of the mailboxes.

She did this every day, and lots of her fellow owners felt this was a big nuisance to them.

A lawsuit was filed. Things escalated to the point where eviction of the offending condo owner was part of the relief requested. However, the nuisance case failed — and the defendant condo owner (who had been tossing the junk mail on the floor) got $250,000 in damages for the harm she alleged to have suffered from the case. She used it to pay off the mortgage on her condo.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

What Associations and Condo Owners Can Do About a Nonpaying Florida Condo Unit Owner

Posted By on November 25, 2014

In Florida, there may be more nonpaying condo owners causing headaches for condominium associations and their fellow condo owners than any other state in the country.   Our state’s real estate market is still recovering; Florida was often cited as number one in the nation for underwater mortgages and foreclosure filings.

One result:  the hangover from the foreclosure crisis and the tight economy have left lots of Florida condo owners behind on condo maintenance fees and special assessments.   Condo owners that live in their unit, as well as condo owners that rent their unit, may not be current on their condo obligations.  Out of state condo owners, those who bought a Florida condominium unit as an investment, face particular temptations to slow pay or not pay their condo obligations at all.

 

Notwithstanding their issues, all condo owners are responsible for paying special assessments as well as general assessments. It’s a shared responsibility that exists to pay for the shared benefits of living the condo lifestyle.   Florida oceanfront condos offer lots of amenities and pleasures that single family homes do not.  The result, there are lots of  frustrated and angry Florida condominiums owners that are left holding the bag for the non-paying neighbors.

So what can condo associations and condo owners do?  Whatever the Florida Legislature allows them to do.

“In Florida, condominiums are creatures of statute and as such are subject to the control and regulation of the Legislature.” Century Vilage, Inc. v. Wellington Condominium Ass’n, 361 So.2d 128 (Fla. 1978).  For the most part, dealing with a nonpaying Florida condo owner means referring to the provisions and powers contained in the Florida Condominium Act, passed by the Florida Legislature as Chapter 718 of the Florida Statutes.

Assessments: General and Special

Pursuant to Florida Statute 718.103, an “assessment” is a share of the funds which are required for the payment of common expenses, which are occasionally assessed against the unit owner. These are general assessments, where all the unit owners share in the burden of things like repair, maintenance, and upkeep of the property.

Special assessments are shares of expenses that are outside the expenses contained in the annual condominium budget. Special assessments are for things that pop up outside of the general budget, for things like unexpected roof repairs after a hurricane or repairs required under a 40 year inspection report.

Assessments can be assessed against the condo owners up to four times a year (quarterly). Assessments are to be expected by unit owners and they are due and owning to the association so that the condominium property can be maintained.

Condo owners that fail to pay their obligations force their remaining condo owners to deal with the realities of property upkeep without sufficient funding. It’s a big problem.

Directors on the Board of Directors of the Condo Association risk allegations they have breached their fiduciary duty if they don’t keep up with the condo’s responsibilities regardless of whether or not the association is having collection problems.  It’s a big deal.

1. Condo Association vs. Nonpaying Condo Owner

The condo association can file a lien against the delinquent condo unit. The lien amount should be equal to the amount of past due assessments. This needs to be done carefully because the association may need adhere to the requirements of the Florida Fair Debt Collection Practices Act (the answer depends on who seeks to collect the debt).

The Florida Condominium Act also allows the condo association to do more actions to prod the nonpaying owner into getting current with their condominium responsibilities. These include things like suspending the right to use the common areas (if the delinquency is over 90 days) and blocking the unit owner from being a member of the association’s board of directors. An association can also suspend a unit owner’s voting rights.

As a last resort, Florida law allows a condominium association to foreclose on a condo unit that has failed to pay assessments.

2. Condo Owners vs. Nonpaying Condo Owner

It is possible for an individual condo owner, or maybe a condo owner together with a few of his fellow owners, to deal with a nonpaying condo owner independently from their condo association. Here, the condo owner sues the nonpaying condo owner for their delinquency. To have standing to do this, it is probably necessary for this owner (alone or together with his fellow owners) to get the cause of action assigned to them from the condo association itself.

Why would a condo association do this?

Today, many Florida condo associations are strapped for cash while having to deal with their duties under the Florida Condominium Act to keep a budget each year that under the Act must have enough funds to cover all past due, current, and future obligations, and also hold amounts in set statutory reserves.

Setting between a rock and a hard place, many Florida condo associations have been forced to get lean and mean with their activities. Money cutbacks include less funds for things like routine maintenance, insurance coverage, and repairs.

Given that the condo association, run by the elected board of directors, can pay a lawyer to proceed with a foreclosure action and other collection efforts – or turn that problem over to a small group of condo owners who are willing to undertake the task of dealing with the delinquent condo owner for them, it’s reasonable to expect that some condo owners may get that go-ahead.

Going After the Nonpaying Condo Owner

If you own a condo in a condominium where there is a problem with one or more nonpaying unit owners, Florida law may provide an avenue for you to solve that problem even if the condo association is not willing to foreclose or take serious action. An experienced Florida condo lawyer can help.

Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

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