[RPPTL LandTen] HB 329 Condo Assessments Bank Payments

[Shane Weaver]

This is not a good bill. I certainly understand the need to keep associations financially afloat in the wake of the foreclosure crisis, but this is quite expansive, sloppily written and abrogates a host of other legal rights.

Holding tenants jointly and severally liable for a unit owner's delinquencies is ridiculous. Imagine being an innocent tenant, not knowing your landlord is behind on assessments, and then one day having the bill handed to you. Good luck trying to rent your condo unit once realtors and the media pick up on this.

As far as the association's ability to evict the tenant for non-payment, the proposed language does not reference or incorporate Chapter 83. Was this intended to be some type of new eviction procedure that bypasses Chapter 83's requirements? Given that eviction under Chapter 83 first requires the existence of a lease between the parties, how would the association even be able to use that mechanism? If they're hell-bent on going this route, they need to amend Chapter 83, as well.

Direct payment of rent to the association would be acceptable, but there MUST be proper protections for the tenant:


*         There should first be a required warning notice at least 30 or 60 days before direct payment can take effect, such as:. "Your landlord is behind on assessments; if the balance is not paid by [date], you will be required to start paying rent directly to the association pursuant to Florida Statute 83.46. If you have questions, please call [association or property manager phone number]"

*         Then there would be second notice once that date passes officially requiring the tenant to begin paying the association.

*         Required forms should be provided in the statute (so associations don't add extra threats or misstate the law).

*         Finally, all associations should be required to provide an explanation of this process as part of the approval application process.

*         Associations' failure to provide the above notices is a defense to any actions against the tenant. There's going to be chaos for a while if this is implemented, and it should be incumbent on the association to inform tenants that LL-T law now works differently in a condo.

There also needs to be clear language that once this rent provision is invoked, the landlord loses the right to sue the tenant for non-payment. Otherwise, there's potential liability to the landlord when the tenant is doing what's required by the association (and if not liability, then a confusing gray area that could lead to wasteful litigation).

The proposed amendments to 718.106 are rather disturbing in their reach. As David Weisman points out, it subverts the foreclosure and eviction processes and allows the association to bar an owner or tenant from his or her unit without due process.

Examples of sloppy drafting:

*         83.46(4)(b) and (4)(b)(1) are quite clear that a tenant is jointly and severally liable for ALL of the unit owner's association debts, including costs and attorney's fees. Yet it would seem that 83.46(4)(b)(2) then limits that liability to the amount a tenant actually owes a landlord. If indeed that was the intent, I don't get why they wouldn't just include that limitation earlier, rather than sticking it in after the broadly expansive subsections that repeatedly use "all."



*         This might be kind of wonkish, but the language added to 718.116(2) about "denial of the use or enjoyment" is grammatically wrong. The implied antecedent in the existing language was the unit owner, but in the added language it's the association. They don't fit. This is how one would read the amendment: "Liability ... may not be avoided by [the unit owner's] waiver of the use or enjoyment of any common element, [the unit owner's] denial of the use or enjoyment ... or by [the unit owner's] abandonment of the unit." The denial part should be separated and specify that it applies to the association's denial.

The statute should simply stop at having tenants pay rent to the associations, with proper procedures and protections. Forget this automatic liability for someone else's debts or putting people out of their homes.



Shane Weaver, Esq.
Legal Aid Society of Palm Beach County
423 Fern Street, Suite 200
West Palm Beach, FL 33401
Tel. (561) 822-9785
Fax (561) 655-5269

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Monday, January 04, 2010 9:53 AM
To: RPPTL Landlord Tenant Committee
Cc: Frank, Scott A.
Subject: [RPPTL LandTen] FW: HB 329 Condo Assessments Bank Payments

Please provide any comments you may have on this proposed bill.

This is another in a series of attempts to charge tenants for unpaid condominium assessments and grant associations eviction rights, although why they chose to put it in 83.46 is unclear.  Subsection (b) includes all owner's monetary obligations to the association, not just assessments.  The association has broad powers to deny or withhold common area use by the tenant other than access or ingress.



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Neil B. Shoter
Partner / LEED Accredited Professional
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________________________________
From: Alan Fields [mailto:abfields at mindspring.com]
Sent: Sunday, January 03, 2010 6:29 PM
To: Freedman, Robert S.; kfernandez at kfernandez.fdn.com; homer.duvall at hklaw.com; 'Salome Zikakis'; wsobien at firstam.com
Cc: mjgelfand at gelfandarpe.com; Meyer, George J.; jbn at floridalandlaw.com
Subject: HB 329 Condo Assessments Bank Payments
Here is another bill for comment from your respective committees.

This bill  requires certain tenants to pay rent moneys owed directly to association.   This is placed in chapter 84, which may be the wrong place; allows association to deny vote, use of property and common areas; requires mortgagee to request estoppel letter from association and pay fee for the estoppels of up to $50 prior to filing foreclosure action under penalty of dismissal; Requires lender to pay association 6 months of assessments w/I 30 days after filing foreclosure suit.  (Glitch, it appears to require this whether the assessments are current or not).  If foreclosure is still pending after 1 year, mortgagee pays all outstanding assessments and all future assessments.  Penalty for non-payment is dismissal of foreclosure and attorney fees to association.

I recommend opposition as this increases exposure of banks and will limit future lending against condominium projects and may push Florida condos outside of Fannie/Freddie guidelines and a technical change to move most of chapter 84 provisions to 718, including only a cross reference in chapter 84.

Happy New Year.


Alan B. Fields
1129 Venetian Harbor Drive NE
St. Petersburg, FL 33702
813-421-3821
c)  727-773-6664
abfields at mindspring.com

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