As a number of communities that we represent have aged, an increasing number have come to us with questions as to who has responsibility for maintenance and replacement of trees.  As many of you know, especially for communities built in the 1990s, many local governments required new developments to plant a number of trees, especially oak trees, adjoining paved portions of streets.  Over time, these trees have grown, sometimes causing damage to roadways and structures.  Some associations may believe that the location of such trees is within the yards of the homes adjacent to the street trees, and as such, the homeowner would have responsibility for the trees.  While this may be the case for some homes, we have discovered that, especially for communities with private streets owned by the association, the trees may actually be located within the area designed on the plat as a common area roadway right-of-way tract.

As communities age and populations age and expand in Florida, developers and associations both face new challenges that are vastly different from the ones overcome since the turn of the century.  The advent of this century brought such issues as insurance and repair of hurricane damage, Marketable Record Title Act and foreclosures to the forefront.  Community Association laws and practices changed to incorporate the new realities. 

The changing culture, demographics and technology herald new trends.  What’s next for community associations?

While Clayton & McCulloh encourages ingenuity and invention on the part of their clients (with the advice of counsel, of course), the following scenario is an example of what the great Charlie Murphy would probably call “line stepping.”

A military family in Tampa returned to their home last month to find presumptive squatters living in their home.  The solution was simple, they thought: call the Sheriff, report the problem, and get the squatters out.  However, upon reporting the squatters, the family found out that a) the squatters had a “lease” (unsigned, as it turned out), and b) that the management company for their homeowner’s association had been collecting $1,000.00 a month in rent from the squatters.  The Association informed a local reporter that the family was behind $6,000.00 on their dues and that Florida law allowed the Association to collect rent.

In my last blog we discussed the role children play in the attorney’s craft of estate planning. As we turn the corner and approach Way Point #3, we need to discuss the related issue of minor children and, more importantly, to whom the testator would want to entrust the care of his and her most prized possessions … their minor children … in the event of the untimely death of mom and/or dad.

An Association forecloses on a vacant lot in the neighborhood and takes title after foreclosure. The scenario is not uncommon; especially in neighborhoods that are developing, expansive, affluent, or newly built. But if the Association holds record title to a vacant lot, must the Association still pay assessment dues on said vacant lot? The answer most likely is yes.   

HOA’s and Association Attorney’s in Florida are watching closely the outcome of the Appellate Case Pudlit vs. Westwood Gardens HOA, Case No.: 4D14-1385.  The 4^th DCA on May 27, 2015 provided an opinion that basically blew homeowner’s associations out of the water.  In this case the 4^th DCA opined that the governing documents of an association that has an extinguishment clause in it regardless of when the mortgage was originated trumped the Florida Statutes.  What this means is that the Association is not entitled to ANY assessments or other charges that came due prior to the transfer of title due to mortgage foreclosure.

As you may be aware, this year’s Florida legislative session ended with an unprecedented early adjournment of the Florida House. As a result of an early adjournment, the most consequential bill for community associations, Senate Bill 736/ House Bill 611, was not approved.  If this bill had been approved, and signed by the Governor, your community association could have lost all ability to collect delinquent assessments if an estoppel (e.g., request by a purchaser /title company for a statement as to delinquent assessments) was not returned on time, or any portion of the assessments actually owed should the estoppel not reflect the entire amount owed. Moreover, we believed that the increased burden for compliance set forth in this bill would have caused association assessments to increase. We believe that this bill may surface again next year, and as such, your Association should be mindful as to this potential legal issue.

A homeowner has fallen behind on his Association dues.  The Association proceeds with collections, getting as far as filing a complaint with the Court.

But then the homeowner’s mortgage lender comes along and files a complaint of its own.  Despite reports that portend the end of the foreclosure crisis, according to RealtyTrac’s most recent findings, the average foreclosure completed in the first quarter of 2015 took 975 days.  Now that the game has become more complicated (and potentially longer), should the Association continue to pursue the homeowners, or wait for the lender to complete its mortgage foreclosure and recover its assessments from the bank?

Big winds usually grab the headlines. But as recent mega-storms such as Katrina and Sandy and the Texas deluges have shown the real punch of these storms comes in the form of rising water and water damage.  Very few property insurance policies provide flood/rising water coverage outside of a separate FEMA endorsed flood policy.  We all understand this fact.  But how many of us are aware that the new trend in property coverage is to exclude backup/overflow coverage?  Backup/overflow describes not water damage resulting from a broken pipe or a plugged drain within the property, it describes water damage to the property resulting from water backing up and overflowing inside the property where the cause of the backup is outside the property.

Typically, when we think of the priority of recorded documents in the public records, we believe that whoever records their document first has priority.  While this is typically the case, when it comes to mortgages and promissory notes, that is not necessarily the case.  In Florida, the mortgage follows the promissory note, not the other way around.  So just because there is an assignment of mortgage, that does not mean the assignee of the mortgage can foreclose, especially if the assignee of the mortgage does not have possession of the promissory note.