Board has a duty to put liens on homes
Q: I live in a small subdivision and we have problems with homeowners not paying their yearly association fees. I have repeatedly told our president to put a lien on the delinquent houses, but she does not understand the system. She also says it is expensive to do through an attorney, and she will not do it. Once a lien is placed on the property, when would it be paid or not get paid?
A: Too many presidents have little understanding how to operate an association. This is a board of directors' responsibility and not just the president. Maybe it is time for the members of the community and the board to seek help by asking professionals to clarify their duties and responsibilities.
The board of directors and the president need to lien delinquent units. It is a violation of the statutes and your documents if you do not do so. Associations must plan for the cost of business operations and legal costs are part of the total expenses. Failure to place a lien allows the delinquent owner to not pay fees and forces the paying members to shoulder the total expense.
Normally, any legal expense will be added to the lien and paid by the delinquent owner. If a bank forecloses on the home, usually the lien is eliminated and the legal cost will be lost. That is one of the situations where the legal costs may not be paid, however it does place a notice to all claims in the public records. It does one other very important thing and that is to make members aware that if they do not pay, the board will take legal action. The legal cost would vary from attorney to attorney but it is an expense that must be planned in the budget.
Seeking clarity on election particulars
Q: We recently held an election of directors in our HOA. There were three vacancies and four candidates. Our manager advised it was not necessary to send ballots to members. If a member did not attend the annual meeting, the proxy holder would vote for the member. The manager advised this was based on a clarification from our attorney. Is this correct? Our documents do not specifically state that ballots are to be mailed to members. If this is correct it would be difficult to vote in new board members since most members do not attend the annual meetings. If ballots are not to be mailed to members, perhaps the proxy should list candidates for voting by members.
A: There are two schools of thought that involve the recent changes to the HOA Act concerning elections. I will not answer which is correct as I suggest the board seek a legal opinion as to the election process for your HOA. Each may vary from document to document.
The statutes for condominiums elections are clear. It takes two notices with the ballot included in the second notice. Condominium elections require that the only way to vote is by the casting of the ballot included in the second mailing. HOA documents will normally determine how an election will be conducted — but an association's attorney should provide the process.
If the election does not follow the condominium system of elections, then you would follow the method in your documents. Normally that would follow the method of having a ballot distributed at the annual meeting and no names printed on the ballot.
Nominations can be made from the floor before the ballots are voted. To print the names on the proxy or on a ballot would give some candidates an advantage. You should follow the guidance of the association's attorney.
Richard White is a licensed community associations manager. Write to him at 6039 Cypress Gardens Blvd., No. 201, Winter Haven, FL 33884-4115. Please include your name and city.