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Owner can be made to vacate

Question: In our condo we have a unit owner who lives in his apartment and is delinquent in paying assessments. A lien has been placed and foreclosure is in process. Can this owner hide under the umbrella of the Homestead Act and prevent us from taking his apartment? If the answer is yes, can he continue to withhold his payments and live free? He owes about $4,000 plus interest and legal fees. _ H.

K.

Answer: The Condominium Act states that the Association may bring an action to foreclose a lien for nonpayment of assessments in the same manner a mortgage of real property is foreclosed. Following a mortgage foreclosure sale, the unit owner can be forced to vacate the apartment. Likewise, following a lien foreclosure sale for non-payment of assessments, the unit owner can be forced to move.

Florida's Constitution exempts homestead property from forced sale under process of any court, but that exemption does not apply to liens created prior to the acquisition of the homestead.

In Avilla South Condominium Association Inc. vs. Kappa Corporation (347 So.2d 599) the Supreme Court of Florida, in rejecting a claim for homestead exemption, wrote "in order to avail himself of the homestead exemption, however, a debtor must establish the homestead character of his property at the time the lien attaches." And, said the court, the unit owners' obligations are secured by liens on the units, which liens were created upon the filing of the declaration of condominium.

Hence the lien was created before the acquisition of the homestead.

Exclusive rental right

Question: My wife and I own a lot in a recreational vehicle condominium that we rent out. The developer takes 50 percent of the rent from us as well as others who rent their lots.

I recently read that where an onerous provision was put in the declaration of condominium by the developer, that this may be or is illegal.

I would appreciate your opinion. _ W.

N.

Answer: Unit Owners of Outdoor Resorts at Orlando vs. Resorts of America (460 So.2d 383) is a case in point.

In that case a group of lot owners challenged the legality of a 99-year exclusive rental provision in the declaration of condominium.

Article XI of the Declaration stated that the developer of the project, Resorts of America Inc., shall have for a period of 99 years the exclusive right, in the absence of the use by the lot owner or his guest, to rent the lot.

The Article also provided that the developer shall split the gross rent with the affected lot owner.

Affirming the validity and legality of the subject rental arrangement, the appellate court wrote that the recording of the declaration of condominium gave each potential lot purchaser at least constructive knowledge of its contents. And the court concluded that "the terms of the exclusive rental provision do not amount to an outrageous degree of unfairness."

Late fee surcharge

Question: We went on a vacation recently and when we returned we discovered we had not paid our condo maintenance charge.

We were notified we had to pay a $25 late charge. Our maintenance charge is $170 per month.

Is it legal to charge a late fee? We think that $25 is exorbitant. What say you? _ S.

S.

Answer: No Florida appellate court, to my knowledge, has addressed the legality of late charges for failure to pay maintenance charges on time.

Likewise, Florida's Condominium Act is silent on the question of late charges. That law simply states that assessments not paid when due shall bear interest at the rate provided in the declaration of condominium, and if no rate is provided in the declaration, interest shall accrue at the rate of 18 percent per annum.

It can be argued that the Condominium Act, being comprehensive, implies that late charges are prohibited. However, many attorneys are of the opinion that an amendment of the declaration of condominium may serve as authority for the imposition of reasonable late charges.

Harry Wood, a retired lawyer, now is a consultant on condominium management. Readers may address questions to: Harry Wood, Condominiums, c/o the St. Petersburg Times, P.O. Box 1121, St. Petersburg, Fla. 33731.

The Florida Department of Business Regulation, Bureau of Condominiums, also handles questions concerning condominium rules and regulations. Phone (904) 488-0725.

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