Case Law Update: Assessments are Consumer Debts Under the Florida Consumer Collection Practices Act

In a recent case, Kelly v. Duggan, 282 So.3d 969 (Fla. 1st D.C.A. 2019), out of Florida’s First District Court of Appeals looked at whether condominium association assessments qualify as “consumer debts” under the Florida Consumer Collection Practices Act (FCCPA). The FCCPA, Florida Statutes §559.55 et seq. (“FCCPA”) and its federal counterpart, Federal Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”) protect consumers from unfair and deceptive debt collection activities and regulate consumer debt collection in Florida. Like the FDCPA, the FCCPA prohibits creditors and debt collectors from engaging in fraudulent, abusive, and harassing tactics in collecting debts for the State of Florida.

In Duggan, a dispute arose between a homeowner and condominium association concerning disputed past due assessments. A condominium owner alleged that the president of the Association violated the FCCPA by locking the unit owner out of a storage unit, making derogatory public statements about the unit owner, and disclosing information about the unit owner’s reputation to a vendor. The unit owner claimed that the president’s actions violated the terms of the FCCPA. The trial court dismissed the unit owner’s complaint citing a previous case from Florida’s Fifth District Court of Appeals, Bryan v. Clayton, 698 So. 2d 1236 (Fla. 5th D.C.A. 1997), which held that the FDCPA and the FCCPA’s definition of “debt” excludes maintenance assessments owed to a homeowner’s Association. Continue reading

DBPR Emergency Order 2020-04 Suspending Damage Requirement For Condominium Association Emergency Powers

On March 27, 2020, Florida’s Department of Business and Professional Regulation (“DBPR”) issued Emergency Order 2020-04 in response to the severe outbreak of the Novel Coronavirus Disease 2019 (“COVID-19”).

This Emergency Order suspends one of the precon­ditions on an association’s use of statutory emer­gency powers upon a “response to damage caused by an event,” which qualifying language is contained in Sections 718.1265(1), 719.128(1) and 720.316(1), Florida Statutes, of the Condominium Act, Coop­erative Act, and Homeowners’ Association Act, respectively. This qualifying language raised some concern among Florida communities of the appli­cability of the association’s emergency powers in response to damages caused by infectious diseases in lieu of damages more commonly associated with hurricanes, floods, or other natural disasters. The Emergency Order affirmatively authorizes the use of an association’s emergency powers under Sections 718.1265(1)(a)-(j), 719.128(1)(a)-(j) and 720.316(1)(a)-(h), Florida Statutes, to protect the health, safety, and welfare of the association, owners, family members, tenants, guests, agents, or invitees. Section 718.1265(1)(a)-(j), and the substantially similar language in Chapters 719 and 720, provides the association with the following emergency powers: Continue reading

DBPR Emergency Order 2020-04 Suspending Damage Requirement For Homeowners’ Association Emergency Powers

On March 27, 2020, Florida’s Department of Business and Professional Regulation (“DBPR”) issued Emergen­cy Order 2020-04 in response to the severe outbreak of the Novel Coronavirus Disease 2019 (“COVID-19”).

This Emergency Order suspends one of the precon­ditions on an association’s use of statutory emergen­cy powers upon a “response to damage caused by an event,” which qualifying language is contained in Sections 720.316(1), 718.1265(1) and 719.128(1), Florida Statutes, of the Homeowners’ Association Act, Con­dominium Act and Cooperative Act, respectively. This qualifying language raised some concern among Florida communities of the applicability of the asso­ciation’s emergency powers in response to damages caused by infectious diseases in lieu of damages more commonly associated with hurricanes, floods, or other natural disasters. The Emergency Order affirmative­ly authorizes the use of an association’s emergency powers under Sections 720.316(1)(a)-(h), 718.1265(1)(a)-(j) and 719.128(1)(a)-(j), Florida Statutes, to protect the health, safety, and welfare of the association, owners, family members, tenants, guests, agents, or invitees. Section 720.316(1)(a)-(h), and the substantially similar language in Chapters 718 and 719, provides the asso­ciation with the following emergency powers: Continue reading

Coronavirus: What Condominium Associations Need to Know

With the coronavirus having been declared a pandemic and rapidly spreading throughout the United States, many Florida community associations are confronting unique issues and need to know how to combat the spread of coronavirus and comply with recommendations from health professionals while remaining compliant with governing documents and Florida law. If you serve on your association’s board, you may be asking:

  1. What are the association’s emergency powers?
  2. Can the association reschedule or cancel board and membership meetings or prohibit members from attending meetings in person?
  3. Can the association close the recreational facilities and amenities?
  4. Should the association forgive payment of assessments for owners facing hardship due to the coronavirus or stop its collection efforts?
  5. Should the association stop sending violation let­ters or imposing fines?

The answers to some of these questions will de­pend on the language in your community’s governing documents and you may need to consult with the Association’s counsel regarding your unique legal situation. Notwithstanding, this article is intended to give general guidance and a place to start when looking for answers to coronavirus questions. Continue reading

Coronavirus: What Homeowners’ Associations Need to Know

With the coronavirus having been declared a pan­demic and rapidly spreading throughout the United States, many Florida community associations are con­fronting unique issues and need to know how to com­bat the spread of coronavirus and comply with recom­mendations from health professionals while remaining compliant with governing documents and Florida law. If you serve on your association’s board, you may be asking:

  1. What are the association’s emergency powers?
  2. Can the association reschedule or cancel board and membership meetings or prohibit members from attending meetings in person?
  3. Can the association close the recreational facilities and amenities?
  4. Should the association forgive payment of assess­ments for owners facing hardship due to the coro­navirus or stop its collection efforts?
  5. Should the association stop sending violation let­ters or imposing fines?

The answers to some of these questions will depend on the language in your community’s governing doc­uments and you may need to consult with the Associ­ation’s counsel regarding your unique legal situation. Notwithstanding, this article is intended to give gener­al guidance and a place to start when looking for an­swers to coronavirus questions. Continue reading

New Florida Law Bars Community Associations from Prohibiting Law Enforcement Vehicles

Clint Morrell

Clint Morrell

On February 21, 2020, Florida Governor Ron DeSantis signed into law Senate Bill 476, which amends Chapters 718, 719, and 720 to bar condominium associations, co-ops, and homeowners associations, respectively, from prohibiting parking of law enforcement vehicles within the community. The statutory language incorporated into Chapters 718 and 719, and substantially similar language in Chapter 720, provides:

An association may not prohibit a law enforcement officer, as defined in s. 943.10(1), who is a unit owner, or who is a tenant, guest, or invitee of a unit owner, from parking his or her assigned law enforcement vehicle in an area where the unit owner, or the tenant, guest, or invitee of the unit owner, otherwise has a right to park. Continue reading

Join Us for the Condo and HOA Board Certification Classes

Join us this February and March for the HOA Board of Directors Training Course. We have two dates to choose from and both classes will include dinner at Maggiano’s.  Shumaker is a division-approved education provider and this class will satisfy the requirements of Fla. Stat. §§ 720.3033 and 718.112 if completed within 1 year before or 90 days after being elected or appointed to the board. RSVP to reserve your spot today!

Combating Serial Bankruptcy Filings

 

 

 

 

 

Authored by Cristina Ayo and Jonathan Ellis 

Associations are all too familiar with bankruptcy serial filers disrupting foreclosure sales leading to frustrating and costly consequences for the Association. Each new bankruptcy filing by the debtor forces the Association to incur additional costs and increases the amount of debt owed while the debtor continues to live on the property without paying the Association.

Associations frequently experience the typical scenario individual serial filers or joint property owners that stagger their bankruptcy filings as a “tag-team” for each individual owner to benefit from the automatic stay of the other.  Typically, on the eve of the foreclosure sale, the owner(s) or one member of the “tag-team” will file their Bankruptcy petition to disrupt the foreclosure action. Their case will eventually get dismissed, while the owner or the other member of the “tag-team” files, again stopping the rescheduled foreclosure. The same pattern of filling, delay, dismissal, and reschedule foreclosure proceedings can last years leaving Associations powerless.

Continue reading

Join Us This Fall for the Condo and HOA Board Certification Class

Join us on this Fall for the HOA Board of Directors Training Course. We have several dates to choose from and all classes will include dinner at Maggiano’s.  Shumaker is a division-approved education provider and this class will satisfy the requirements of Fla. Stat. §§ 720.3033 and 718.112 if completed within 1 year before or 90 days after being elected or appointed to the board. RSVP to reserve your spot today!

What Every HOA and Condo in Transition/Turnover Should Know About Florida’s Statutes of Limitations and Repose

Attorney Clint Morrell

Clint Morrell

We are frequently retained by homeowners associations and condominium associations who have just undergone transition/turnover from developer control to control by the unit owners other than the developer. Two of the first questions we ask them are 1) what amenities and other common elements does the association own or is it required to maintain; and 2) has the association, in consultation with an engineer or other expert, inspected the common elements to ensure they are free from defects? We ask these questions right up front during our initial consultation because of Florida’s Statute of Limitations and Statute of Repose, which limit the time within which the Association may pursue recovery of expenses for needed repairs to the common elements from the developer or other individuals or entities arising from the improper design or construction. (Note: Applicable Statutes of Limitations and Repose differ according to the nature of the claim – this article focuses only on construction and design defect claims). Continue reading