Liens on Your Florida Condo or Home: What are They and How Do You Get Rid of Them?

Posted By on March 3, 2015

Condo living is a different lifestyle here in Florida, one that lots of people enjoy. Sharing the responsibilities of lawn care and landscaping, pool upkeep, and more can free condo residents from chores they would have face if they lived in a single family home in the suburbs.

However, living the Florida Condo life also means being willing to live in a shared community where a property manager has control over lots of things and where condo unit owners can face decisions being made by the Condo Board or the Condominium Association with which they do not agree.

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Condominiums are popular in Fort Lauderdale.

 

When Condo Unit Owners Don’t Pay Their Fees and Assessments

One big result of this: when the Condo Board decides on spending money on a project and each condo owner is faced with the new responsibility of having to pay their share of that project’s cost. What if the unit owner rebels and decides not to pay?

Another result of this: there are Florida condo units that have been abandoned by their owners which are in the foreclosure process. What happens to the Condo Association when they have basic expenses (like maintenance, etc.) and there’s not money coming from those defaulting unit owners? What is the Condo Board to do?

The answer, in many instances, is a lien. Liens are placed against the Florida condo unit. If the liens remain unpaid, then the Condo Association can foreclose on the condo unit and take title to the property.

Liens Against a Florida Condo

Before real estate agents show Florida condos to prospective buyers, they are required to explain the distinction of this type of real estate ownership and how it is different from owning a single family home. One of the big reasons for this requirement is because anyone buying a Florida condo needs to know that there is the risk of a lien being placed against their condo home by the Condo Association.

What is a lien?

A lien is a way to cloud title against real estate, preventing it from being sold or transferred without the debt established in the lien being paid. It is tied to the Florida real estate itself, not the owner. Liens filed in the real property records are also prerequisites for foreclosing on the condo.

Liens can be placed against land and real estate, like condominium units, townhouses, single family homes, as well as commercial and industrial properties for several reasons. There are tax liens where liens are placed against Florida real estate as vehicles to get income taxes, estate taxes, or property taxes paid, for instance. Also, mechanic’s liens and materialman’s liens can be placed by contractors who have unpaid construction invoices. Vendors’ liens can be filed against real estate in Florida to get certain debts paid.

However, most disputes involving condo fees and condominium assessments are liens placed by the Condominium Association against a specific condo unit for outstanding and unpaid assessments.

Florida Condo Liens

Florida Statute 718.116 authorizes liens to be placed against condo units and makes the owner of the condo unit responsible for paying any assessments that are placed against the condo unit while that particular owner has legal title to that unit.

Florida Statute 718.116 also authorizes new owners of Florida condos to be liable for paying past-due assessments on the Florida condo. The new owner and the past owner of the unit can be held liable for those condo assessments “jointly and severally” which means that if the past owner is not able or unwilling to fork over any cash to pay the assessment debt, the new owner can be held liable for the entire amount.

This is true even if the new owner bought the Florida condo in a foreclosure sale.

Why? Isn’t this unfair to the new condo owner?

Maybe. However, the Florida Legislature has decided that the interests of the condominium as a whole in maintaining and repair and upkeep of the entire condominium property must prevail over the new condo owner who may be surprised to learn that they’ve got a big assessment amount due and owning now that they’ve closed on their new condo unit. The law is designed to help Condo Associations get reimbursed and paid for the monies needed to do their job regarding the common areas, etc., for the benefit of the condo owners as a whole.

Problems With a Florida Condo Lien?

If you have problems with a lien being placed against a Florida condo that you own or may wish to purchase, then you need to know the legal ramifications of the condo lien as well as ways to solve the lien problem short of losing the condo property (as well as your options and risks if you choose to let the condo go in face of the condo lien).  You may also want to explore the potential liability of any real estate agent who failed in their duty to explain what condominium purchases are and the risks involved in purchasing a condo unit (like liability for assessments).

An experienced Florida condo lawyer can explain the nuances of your particular circumstance and help you decide which alternative is in your best interests.

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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.

Florida Condos, Coops, TimeShares, HOAs, and CDDs: Know the Difference Before You Buy

Posted By on February 24, 2015

In Florida, there are different types of home ownership recognized by the Florida Legislature other than the traditional single family home. Florida laws recognize five different alternatives that anyone considering buying residential real estate in Florida, for their vacation home, their retirement home, or an investment property, needs to know. (And, yes, the real estate agent should be apprising you of the differences when you are considering properties to buy ).

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These five residential property ownership options are: Cooperatives, Condominiums, Community Development Districts (CDDs), Homeowner Associations (HOAs) and Time-Shares.

1. Florida Cooperatives

In a Florida Cooperative, you don’t own the land or the fixtures or the improvements built on the land. Instead, you own stock in a corporation. The corporation is the real estate owner; you are a shareholder in the corporation.

As a result, the corporation is responsible for things like paying property taxes and maintaining the property condition. You, as a shareholder, own stock that carries with it a right to occupy a part of that holding via a proprietary lease.

Florida cooperatives are governed by the Florida Cooperative Act, which is Chapter 719 of the Florida Real and Personal Property Code.

2. Florida Condominiums

In a Florida Condominium, you do own real estate in “fee simple” but you only own your individual unit in the bigger condominium complex. This might be one of the many beautiful condo towers here in South Florida that offer ocean views from balconies, or it may be a condominium that is a few stories high with only a dozen units or so, located in a neighborhood convenient to shopping centers and entertainment venues.

Thing is, by owning a condo you are entering into a shared community environment, where you are agreeing to abide by rules and regulations set up for the condominium as a whole — these are set out in the condo documents (declarations, bylaws, etc.) which are to be provided for review to potential buyers prior to purchase.

As a Florida condo owner, you also own a part of the common areas of the condominium — the pool, the parking lot or garage, etc. — but it is in an “undivided interest.” No Florida condo owner can point to a section of the tennis court, for instance, and claim exclusive ownership of that spot.

Florida condo owners pay property taxes on their individual condominium unit. When they sell their unit, they transfer ownership by a real estate deed just like owners of a single family home in the suburbs.

Florida condominiums are governed by the Florida Condominium Act, which is Chapter 718 of the Florida Real and Personal Property Code.

3. Florida Time Shares

In a Florida time-share, you are agreeing to own a specific property in a shared ownership with others, or to own only the right to occupy that property for a specific time period. There are a variety of legal alternatives in owning a Florida time-share, with different rights and remedies regarding the scope of your rights to use the specific property.

Florida Time Shares are governed by the Florida Vacation Plan and Time-Sharing Act.

4. Florida Home Owner Associations

In a Florida Home Owner Association (HOA), the owner of property within the boundaries of the association is legally required to be a member of the Homeowner’s Association as a condition of owning the real estate. It’s not an option. As an owner in a neighborhood with a Florida Homeowner Association, you can vote (or assign an agent to vote on your behalf) on association business.

The Home Owners’ Association itself is a Florida corporation that is legally responsible for maintaining, upkeep, etc., of the community. Assessments are placed on property within the community in order to fund the Homeowner Association’s work and if the owner fails to pay his or her assessment, the HOA can place a lien on the property.

Florida Homeowners’ associations are governed by Chapter 720 of the Florida Real and Personal Property Code.

5. Florida Community Development Districts

In a Florida Community Development District (CDD), a special purpose governmental unit is created with limited functions in order to provide urban community development in specific parts of Florida. This unit, a “community development district” or CDD, is able to tax or levy assessments upon those who own property within its boundaries as the CDD determines is best.

The CDD itself is overseen by its Board of Supervisors, who are 5 people elected by land owners to serve on the board. They hire a district manager who handles the actual operations.

Anyone purchasing property within a Florida CDD should expect to see the legally required disclosure in their documentation, letting them know that they are buying real estate within a CDD and can expect that the CDD may impose taxes or assessments upon the property in order to fund or pay for the upkeep of public facilities or services within the district itself. These would be in addition to any taxes or assessments that the property owner may be required to pay as property taxes or other taxes imposed by county or local government.

Florida CDDs are governed by the Uniform Community Development District Act of 1980, found in Chapter 190 of the Florida Planning and Development Code.

 

Consider Before You Buy

Before you go ahead and buy a home or condo within one of these ownership alternatives, you may want to understand the legal ramifications of living and owning property within them. For some people, these alternatives provide just what they want or need.

A Florida condo offers a great lifestyle for those who don’t want the hassle of pool upkeep but enjoy their morning swim, for example. A Florida time-share may be a great idea for someone who is considering uprooting their family from some snow-covered state and relocating to sunny Miami: spending a couple of years in South Florida with time-share ownership may be a great stepping stone for them.

However, each option has its limitations and real estate agents are legally required to disclose properties that are limited by these legal alternatives to anyone considering a purchase in one of them. That’s because the laws that apply to owners in a condo, time share, CDD, HOA, or Co-op may be an unwelcome surprise to some who don’t want to share in ways that each of these options requires real estate owners to do.

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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.

Is Your Real Estate Agent Guilty of Discrimination?

Posted By on February 17, 2015

Real estate agents in Florida can do bad things that hurt both home buyers and sellers in serious ways. A buyer may end up with ugly surprises in her new home: things like hidden defects (e.g., mold) that was not disclosed prior to closing. The seller may be thwarted from selling their condo or townhouse at the highest price because they have an agent that is looking to move property fast rather than take the time to find the best deal for the owner.

We’ve considered many different ways in which bad or unethical real estate professionals end up facing legal claims presented by unhappy sellers, buyers, landlords, or tenants. See, for instance:

However, most of these problems have focused upon the bad acts and the real estate itself. Bad appraisals, failures to disclose, etc. Unfortunately, real estate agents and brokers also do bad things regarding not just the property involved, but the people, too. See, Jones v. Mayer Co.

Real estate agents discriminate, and they’ve done it for years.

So much so, that all sorts of federal and state laws are on the books to try and stop this terrible practice. Here is a list of some of the statutes that have been passed by Congress and the Florida Legislature to try and stop real estate agents from discriminating against people looking to buy a home or folk trying to sell real estate here:

Federal Laws

  • Civil Rights Act of 1866
  • Civil Rights Act of 1964
  • Civil Rights Act of 1968
  • Fair Housing Act of 1968 (and its amendments)
  • Americans with Disabilities Act of 1990
  • Interstate Land Sales Full Disclosure Act

Florida Laws

  • Florida Fair Housing Law
  • Florida Americans with Disabilities Accessibility Implementation Act
  • Florida Residential Landlord and Tenant Act

Are You a Victim of Discrimination by a Florida Real Estate Agent?

In Florida, you may be a victim of discrimination by a Florida real estate professional for many different reasons including: your race, your religion, your sex, your national origin, your handicap, your familial status, or your age.

Tenants may face property managers who discriminate against them by denying them the chance to rent a condo or home, or by doing things like demanding excessive deposits or advance rents or in an improper eviction process.

Sellers may face real estate brokers or real estate agents that are discriminatory in advertising the property for sale or in choosing which potential buyers are shown the property for consideration.

Buyers may never be shown homes by discriminatory real estate agents in certain neighborhoods or condominiums and be unknowingly limited in their purchase options.

Tactics of Discrimination

Real estate agents cannot do things like: refuse to rent to someone; quote different terms to different people; or lie about a property being available. In fact, discrimination is such a problem with real estate professionals that there are nicknames for some of their most popular discriminatory practices, things like Racial Steering.

What is steering? This is still a very popular thing for real estate agents to do, even though it was first made illegal almost half a century ago in the federal Fair Housing Act. Here, the discrimination involves the real estate agent showing the potential buyer homes in neighborhoods where the majority of the current residents are their race.

Claims Against Real Estate Agents For Discrimination

If you believe that you have been the victim of discrimination by a real estate agent, then you may have legal claims for damages against them under federal and state discrimination laws as well as Florida contract laws and Florida real estate statutes regarding the property transaction itself.

For instance, a buyer who believes they may have been sold a shoddy home or condo in a certain neighborhood by a discriminatory real estate agent may be able to seek to have that contract rescinded as well as seeking damages against the real estate agent (and real estate brokerage). Tenants can move to be freed from discriminatory leases. Sellers can fight to be released from contracts with discriminatory real estate agencies and for damages if they can show they sold their property for less than its true value because of discriminatory intent by their real estate professional.

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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.

55+ Condo Living in Florida: Senior Condos and Adult Condo Communities

Posted By on February 10, 2015

South Florida is famous as a retirement paradise, and many of our local condominiums exist to meet the needs and lifestyles of those enjoying a retirement lifestyle. There are countless “55 Plus Communities” here in the Broward County and in the Miami-Dade area, where “most” of the residents are age 55 years or older.
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Condos in Miami Beach

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1. Does Federal law allow for 55+ protections as an exception to our discrimination laws?

If a Florida condominium can meet certain federal requirements, it can legally prevent some people from living there — like families with kids, or occupants under the age of 18 years old. The Fair Housing Act allows for discrimination that favors 55+ condominiums as long as the Condo Board can show:

1. At least 1 person living in at least 80% of the condo units is 55 years old or older;
2. The Condominium Policy is to be a community that exists as “housing for older persons” (this includes its marketing and promo materials as well as its controlling documents);
3. The Condo Board files the necessary proof (affidavits, etc.) with the federal government to support compliance with this law.

2. Can there be Florida 55+ Condos with young people (even kids) living in them?

The federal law allowing for housing specific to older adults doesn’t guarantee 100% ownership and occupancy by people who are over the age of 55 years. For one thing, to qualify as part of the 80% requirement (see above), only one resident needs to be 55 years old or older. The other resident can be of any age and that unit will meet the test for the Condo Board to satisfy under federal requirements.

So, if a grandma has her granddaughter stating with her, that’s okay.

Also, a significant minority of the condo units can have anyone living in them. Up to twenty percent (20%) of a Florida 55+ Condo Community can have people under 55 or even families with small kids living in them, and that’s legally okay. You see this happen in cases where the older resident passes away, and his widow (or her widower) is under the age of 55. Sometimes, too, condo units are bought at foreclosure sales by people under the age of 55 years.

Of course, you may find Florida 55+ Condominiums where everyone living there is over the age of 55 years. After all, that’s how they are being marketed. However, it’s not legally enforceable to have 100% occupancy over the age of 55. You could buy a 55+ condo unit here, and a couple of years later, have teenagers living down the hallway. It’s possible.

3. Is the Answer Who Lives in the Condo or Who Owns It?

For Florida “55 and over” condo communities, the key is who is actually living in the condos. Adult children are free to buy a Miami condo for their mom and dad to enjoy, and as long as the parents live in the condo unit, it meets the federal requirement of having someone residing there that his 55 years of age or older.

In other words, the The Fair Housing Act does not regulate condo ownership. It regulates condo residency and condominium use.

4. What Does a Condo Board Need to Do to Keep Current and Protect Its 55+ Status?

Under the law, a Florida condominium cannot qualify itself with the Department of Housing and Human Services and then wipe their hands together, saying “that’s that.” It’s going to be a continuing duty of the Condo Board to make sure that the necessary requirements to update the condominium’s residency status is done. Every 24 months or so, proof of that 80% occupancy by residents age 55 or older has to be provided to the authorities, or the condominium risks losing its 55+ Community status.

Are You Concerned About Buying or Protecting Your 55+ Condo?

If you have questions about buying or living in a 55+ Condominium here in Florida, then having a Florida condo lawyer review not only the applicable laws but the individual condominium documents can be important in protecting and enforcing your rights — particularly if you are concerned about buying a condominium in one of these communities or if there’s a chance that your community may lose its Adult Community status.

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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.

Rights of a Florida Condo Tenant

Posted By on February 3, 2015

Condo owners in Florida rent their condos to tenants all of the time. The lease period may be weeks, or months, or even years. As home owners, the condo unit owner has every right to lease his or her property to another should he or she choose to do so (as long as the owner follows the rules and regulations of the condo association).

As for the Florida condo tenant, how far does their rights of use extend? Are they limited to using just the interior of the condo unit?

Renting a Florida Condo: What Are The Tenant’s Rights?

A Florida condo tenant has the right to use all the common areas and other condominium property that the unit owner would have the right to use and enjoy if they were living in the condo unit and had never leased the place. The tenant can, for example:

  • Park in the condo unit parking space
  • Swim in the pool
  • Access the waterfront via private condo property
  • Play on the tennis court
  • Host a gathering in the common reception area
  • Work out in the gym.

This is pursuant to the Florida Statute 718.106(4) of the Florida Condominium Act, which provides:

When a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners and the unit owner shall not have such rights except as a guest, unless such rights are waived in writing by the tenant. Nothing in this subsection shall interfere with the access rights of the unit owner as a landlord pursuant to chapter 83.

The Condo Association and the Condo Tenant

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1. No discrimination just because you are a tenant.

In sum, Florida law does not allow condominium associations to discriminate against someone who is renting a unit in the condominium. Still, the Condo Association has control over the condominium and can exercise power over the tenant just as it can with residents (or prospective residents).

For instance, the Condo Association can pass regulations that limit the use and enjoyment of common areas to either the tenant or the unit owner. In other words, the Condo Rules may state that if the tenant living in a unit has rights to use and enjoy the common areas, then the unit owner who is not living on-site cannot. This is called a “dual usage” rule, which is also part of the Florida Condominium Act, Florida Statute 718.106:

The association shall have the right to adopt rules to prohibit dual usage by a unit owner and a tenant of association property and common elements otherwise readily available for use generally by unit owners.

2. Tenant can be blocked from certain things by the Condo Board.

Not only can the Condo Association limit the right of a condo unit owner to use a condominium unit that he or she has leased to a tenant, but the Condo Association also has the power to block the tenant and their guests to use of many of the common areas if there is a failure on the part of the unit owner or the tenant to comply with any of the Condo’s bylaws, rules, or regulations.  This includes a unit owner who gets 90 days behind or more in paying money due to the Condo Association.

(Here’s something important for tenants to know: the Condo Association cannot stop the tenant from using common areas that are tied specific to their rental unit as well as the common areas needed for access and egress from the rental unit. Utilities, elevators, and parking spaces are also protected for the tenant’s benefit under the Florida Condo Act. See Florida Statutes 718.106(4); 718.303(3)-(4).)

Protecting the Condo Tenant’s Rights

When a condo tenant is blocked from full use of the common areas or the full enjoyment of his or her rented condo, there are Florida laws that provide help and remedies; he or she may also have protections under the Condominium documents as well. It is a good idea to seek the guidance of a Florida condominium lawyer in these situations, particularly when these situations involve the emotions and personalities of people who are living as neighbors (and potential adversaries) in a shared community.

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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.

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