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Posting Debtor Lists to Collect Delinquent Condo & HOA Assessments

Posted in Assessment Collection, Foreclosures

Lisa A. Magill, Florida Lawyer, Real Estate AttorneyThe Florida Consumer Collection Practices Act Prohibits Associations From Posting Delinquency Lists and Taking Other Actions to Collect Assessments and Maintenance Fees.

There have been a number of newspaper articles explaining actions taken by community association boards and managers to collect delinquent assessments.  The Miami Herald reported that some associations post lists of the names of the owners behind on their fees and others deny security access devices to tenants of delinquent owners.

The Wall Street Journal reported that some associations were taking control of the unoccupied units and renting them on a short term basis until the bank foreclosed.

While we are all familiar with the idiom “drastic times call for drastic measures”,  community leaders and property managers should understand that Florida law prohibits unfair or abusive tactics with regard to debt collection, including the collection of assessments.   Although the prohibitions in the Federal Fair Debt Collection Practices Act do not apply to the person or entity owed the debt (the ‘creditor’, which in this case is the Association), both community associations and their managing agents are responsible for compliance with the Florida Laws.

Among other practices, Section 559.72, Florida Statutes, prohibits the following:

  • Use of profane, obscene, vulgar, or willfully abusive language in communicating with a debtor or any member of his or her family;
  • Communication with a debtor under the guise of an attorney by using the stationary of an attorney or forms or instruments which only attorneys are authorized to prepare;
  • Orally communicating with a debtor in such a manner as to give the false impression or appearance that such person is associated with an attorney;
  • Publishing or posting, threatening to publish or post, or causing to be published or posted before the general public individual names or any list of names of debtors, commonly know as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts;
  • Mailing any communication to a debtor in an envelope or postcard with words typed, written, or printed n the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to “Deadbeat, Jane Doe” or “Deadbeat, John Doe”;
  • Communicating with the debtor between the hours of 9 p.m. and 8 a.m. without the prior written consent of the debtor.

While every association must be diligent with its collection efforts, those efforts must be in compliance with legal and ethical standards.

On the other hand, the Florida Courts are cognizant of the problem and have allowed Associations to have receivers appointed for the purposes of collecting rent from tenants when the owners of those units are facing foreclosure as a result of non-payment of assessments.  Remember to check this site in the future for more information about proactive methods to collect assessments.

  • Mari Joiner

    What about stating the delinquent units in the minutes of the Board Meetings for all the property owners to see? Not the general public, but just the owners.

  • David Green

    The developers have five townhomes as Phase II in our condo complex. They are NOT paying any association fees or mortgage payments and taxes, but rent and collect over $5,000 per month. We would like to cut off the water, trash, cable, and internet and have the owners paid for these services. They will still be able to rent until the bank takes over. Would we be able to do this, because we are having high special assessments to pay our cost. Give me your opinion.

  • Paula Pelletier

    Can two family members (father and daughter) serve on the Board at the same time? They are co-owners of the unit in question.

  • Harold Siegel

    ONE OF OUR BOARD MEMBERS WANTS TO PROHIBIT THOSE WHO OWE BACK MAINTENANCE FROM MOVING BY NOT ALLOWING THEIR MOVERS ON THE PROPERTY UNTIL ALL FEES ARE PAID IN FULL. HE WILL NOT ACCEPT THAT THIS IS AGAINST THE LAW AND THAT WE CAN PROBABLY BE SUED.
    YOUR OPINION PLEASE>

  • D. Rice

    In the State of Florida, when a property proceeds through the foreclosure process and the foreclosure is complete, does/did the foreclosure eliminate all liens?

  • Lisa Magill

    This post certainly raised a lot of eyebrows.
    The Association is certainly entitled to review the status of accounts – that is part of the function of the board of directors. Any owner (whether in a condo, coop or hoa) is entitled to see the financial records, including the status of individual unit owner accounts. Thus, addressing financial issues, including action against delinquent owners, in the minutes of the meetings is appropriate. However, it is still important to ensure those minutes are available only to members of the association, not third parties.
    As a general rule, owners of properties subject to governance by community associations (whether condo, hoa or coops) have an easement over the common areas to enable them access to their property, even if they are delinquent. Thus, the Association cannot prevent them from accessing the unit, home or townhome. The easement benefits both the owner and his/her invitees (such as the mover). Interference with the easement exposes the Association to liability.
    In Florida, condominium associations are prohibited from restricting use of the common elements or services as a result of a delinquency. However, there are other proactive methods the Association may employ to collect money owed.

  • Ricardo Martinez

    Hi!
    My question is, does the FL Statutes say anything about the adjustment (increase/decrease) of the monthly/quarterly dues of the HOA during the year?
    By during the year i mean, if it can be adjusted say in july of the year, without waiting until next year budget.
    Thanks; Ricardo

  • http://mariaps22@comcast.net Maria Spagnuolo

    Are BOD allowed to deny access to the association facilities (pool, gym, tennis, basketball courts, clubhouse & etc.) turn off their water, take away cable & alarm and any other association expenses due to a delinquent unit owner?

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  • John Horton

    Most of the laws and rules seem designed to protect delinquent owners from associations. Meanwhile, many associations; ours included, are struggling to pay their bills and maintain properties because some owners simply stop paying HOA fees. The lien and lawsuit process is lengthy, expensive and often unsuccessful. In Foreclosures, Associations are lucky to get 6-months in overdue fees (following 12-18 months of legal action). Some even collect rent for services the HOA must then provide for their tenants … without paying fees.
    How about a little more equity in your coverage of the collection alternatives available to HOA’s.
    Thanks

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    Can the Association Cut Off Cable or Shut Down Water Service?

    Associations struggling with bad debt pushing the envelope trying to make up for deficits. Earlier this

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    Can the Association Cut Off Cable or Shut Down Water Service?

    Associations struggling with bad debt pushing the envelope trying to make up for deficits. Earlier this

  • JagsFan

    I saw in your blog that names of HOA debtors can not be published. We were told by our Mgmt Co that we could post an arrears list with unit numbers, not names.
    Is this permissible?
    RESPONSE: Thank you for your comment/question – it reveals a practice that happens every day throughout the state. It is inappropriate for owners or board members to ask the manager or the management company for legal advice. You put them in an awkward position (they are probably trying to help) and are not likely to obtain accurate or comprehensive information in response.

  • Joseph Campbell

    There has to be a better way for an association to get the monies due from delinquent owners. Placing a lien on the property doesn’t help becuase most times the owner isn’t paying the mortgage either.
    Then the banks aren’t foreclosing because they would then be liable for the monthly dues, (whether 6 months or 1 year of past dues) but certainly all future dues.
    The owner has abandoned the property. So the association has a vacant unit that we are not able to get monies from.
    Is there any possibility that the association can take control of the unit for a set time frame, say 1 year, and get a renter in the unit and collect the rent to cover the past dues and future dues.
    The banks don’t want to foreclose, the owners are gone and aren’t paying anybody anything and the assoc. is having to raise dues to cover the loss of income from the dead beats.
    This would be a win-win solution for the banks and Associations. The bank can foreclose in 1 year and all back dues are erased, the unit is occupied and maintained by the association, the association is receiving the needed revenue to maintain the entire complex and fund the reserves.
    We have 20 out of 138 units that are not paying dues and we are paying our attorney a boat load to run the court gamet trying to get banks to foreclose as they are required to.
    Please help
    Thanks

  • Joseph Campbell

    I read that an association took control over a unit and began to rent it out and collect dues that way. Is this legal?
    What if the bank has not foreclosed and the owner has left?
    Joe Campbell

  • Ben Gray

    How about the Association hiring a collection agency to go after delinquent owners? I found one online that will take any account for $20. Seems quicker and a lot less costly. Does Florida law prohibit this?
    RESPONSE: The association can certainly hire a collection agency. Please verify the license. Collection agencies are not law firms and therefore cannot lien or foreclose.

  • Ben Gray

    Thanks for the reply, and thanks for the blog. Its a valuable resource and reference for HOA Board Members.
    Our HOA attorney has advised us that we cannot use a collection agency, citing 4 main arguments:
    1)The Association’s controlling documents, in concert with FS 720.3085 prescribe the remedies for non-payment (Claim of Lien/Foreclosure and/or Money Judgment in small claims court), so those are the only remedies that can be used.
    2) Sending 5 non-threatening and diplomatic letters over a 75 day period from the collection agency constitutes harrassment.
    3) No other HOA’s are using collection agencies, so that proves it can’t be done.
    4) HOA’s aren’t businesses since they don’t make profits, so can’t take measures available to real businesses.
    I take issue with all 4 arguements.
    Any comment?
    RESPONSE: Only attorneys can practice law. Collection agencies cannot file liens or file lawsuits. Nonetheless, the law does not prohibit an association from hiring a licensed collection agency – the agency must comply with all laws regarding collection of debt.

  • Christa

    I live in town homes that all have individual water meters. Our HOA fess do not include water and owners are billed each month from a billing service company. That company then pays the bill to the city. Our HOA is billed from the city for all water usage. Those who do not pay their water bills are getting their water bills paid with our HOA fees because if the city is not paid they will shut off the main line to our complex. Now there is no money for roof repair or painting because the money is going to pay water. Since the HOA is responsible for paying the water can the Board of Directors turn off the individual meters of those who are not paying?

  • Christa

    I live in town homes that all have individual water meters. Our HOA fess do not include water and owners are billed each month from a billing service company. That company then pays the bill to the city. Our HOA is billed from the city for all water usage. Those who do not pay their water bills are getting their water bills paid with our HOA fees because if the city is not paid they will shut off the main line to our complex. Now there is no money for roof repair or painting because the money is going to pay water. Since the HOA is responsible for paying the water can the Board of Directors turn off the individual meters of those who are not paying?

  • Laura

    I hAve a condo that I own out right. There are assesments on the bldg now for repairs on the bldg. If for any reason I don’t pay those assesments be their dead line does the condo association have the right to go directly to my tenant and collect my rent And keep it towards the assesments. Please email me back. Arielstarz@aol.com
    RESPONSE: The laws enacted in 2010 allow the association to collect rent from a tenant when an owner becomes delinquent.

  • Michael

    We own a unit in a local Condo/hotel where owners can elect not to use on-site Mgmt/Leasing office which we have opted to do to save 45% commissions. Unfortunately, there is a disconnect and ongoing hostility between Mgmt and ‘opt out’ owners w/ Mgmt refusing to make repairs, fix leaks, offer services, using grills and poolside furniture etc which I question legality of.
    The bigger issue is having to pay special assessments for electrical upgrades, etc and finding out that our personal unit was not included in the upgrades, despite paying all special assessments and monthly $475/mo fees. This is a good ole boy network w/ Mgr cozy w/ Board members who talk outside ‘sunshine’ all the time. Now my A/C unit is tripping all breakers, no hear or air w/ frig sometimes going out due to ‘older’ aluminum wiring that was not replaced with others. The electrician hired to do the upgrades advised us that he was told ‘not to do our unit and a few others’.
    I would like to get an opinion on general applications/benefits of sp assessments not being applied ‘equally’ to all units despite us paying our proportionate share. Thank you.
    RESPONSE: These types of complaints are pretty typical in condo-hotel set ups (where non-participating owners feel they are not treated as well as the participating owners). Answers to your questions regarding the allocation of expenses depend on the governing documents and the structure of the legal aspects of the property. Many times the hotel operator is not subject to Chapter 718 (Condominium Act) and it is difficult to obtain access to records.

  • Fran

    Does an HOA attorney get paid for his legal fees in debt collections from the association on a monthly basis, or does he have to wait until the homeowner pays him back say in a judgment.
    Also, how can “reasonable” be determined for legal fees. (FS 720.3085).
    Say, is a $665.00 lien and foreclosure action worth $2500 in legal fees and when is the attorney paid for his legal fees.
    RESPONSE: Different law firms have different payment structures. Some law firms charge monthly, some wait until the end of the case to bill the client, some have other arrangements. The determination of whether the fee is reasonable is made by the court in the foreclosure case. In many cases the homeowner doesn’t have the opportunity to challenge the reasonableness of the fees since they default and don’t participate in the case.

  • Beachnutt

    Hello, I need clarification on some of the comments in this string from about 2 years ago. I understand that in Florida the HOA cannot publish a list of names of delinguent owners for public view. Is it permissible for the HOA to publish a list of the unit numbers that are delinquent for public view?
    RESPONSE: Please refer back to this post
    http://www.floridacondohoalawblog.com/2009/06/articles/assessmentscommon-expenses/posting-debtor-lists-to-collect-delinquent-condo-hoa-assessments/
    The association cannot violate the state laws.

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