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LEGAL NEWS

 

and a word about Homeowner's Associations

 

ALL UNDERLINED TEXTS ARE HYPERLINKS

 

ENFORCEMENT OF CURRENT RULES AND REGULATIONS...

OR DELIBERATE SEIZURE AND DENIAL OF INDIVIDUAL PROPERTY RIGHTS?

 

A homestead right in real property cannot rise any higher than the right, title or interest acquired by the homestead claimant. A homestead may attach to an interest less than an unqualified fee simple title. A homestead may attach to any possessory interest, subject to the inherent characteristics and limitations of the right, title or interest in the property. The homestead, however, will not operate to circumvent an inherent characteristic of the property acquired. The concept of community association and mandatory membership is an inherent property interest. The homeowner's association declaration defines the rights and obligations of property ownership. The mutual and reciprocal obligation (contract) undertaken by all purchasers in homeowner’s associations creates an inherent property interest possessed by each purchaser. The obligation to pay association dues and the corresponding right to demand that maximum services be provided within the association's budget are characteristics of that property interest. Moreover, the right to require that all property owners pay assessment fees is an inherent property right. That no owner has to pay more than a pro rata share is an essential characteristic of the property interest.  

A Homeowners' Association is entitled to the foreclosure of the contractual lien it has on the houses of delinquent owners due to the inherent nature of the contractual agreement. We recognize the harshness of the remedy of foreclosure, particularly when such a small sum is compared with the immeasurable value of a homestead property. Under the laws of this state, however, all are bound to enforce the contractual agreements into which we willingly and voluntarily enter concerning the payment of assessments. Read your HOA agreements carefully and do not enter into any agreement without a full, knowing and willing intent to give up your home should the HOA decide to take it from you for breach of contract.

A Word About Homestead Tax Exemption

A homestead tax exemption denial results in a denial of rights and due process. If you have been denied the tax exemption, learn more on how to respond here.

 

 

NATIONAL FORECLOSURE RATE APPROACHES ITS PEAK SINCE THE GREAT DEPRESSION

A national poll released this week states that the national homeowner foreclosure rate is now higher than it was during the Great Depression. Many homeowners are considering leaving many city and metropolitan areas and also thinking of leaving Florida . A new survey says more of us will be leaving these areas if things keep going the way they are. The Broward Housing Partnership says the high cost-of-living and low salaries are forcing some people to consider moving. 

The survey finds 75% of Broward residents earn less than $77,000/year and cannot afford a home with a median price of $361,000.00. "It takes a dual $50,000 a year income to live in South Florida" says John Sims, President of Florida Homestead Services. He also states that "Homeowners who are missing monthly mortgage payments and facing the possibility of foreclosure now have a new option to help them avoid foreclosure."

“An unfortunate fact about foreclosure,” says Walt Fricke, president and executive director of the Homeownership Preservation Foundation, “is that as many as 50 percent of homeowners facing foreclosure avoid directly communicating with their lender or servicer. We serve as a trusted third party to help connect homeowners with lenders and jumpstart a communications process that leads to a solution for borrowers, lenders and the communities in which a borrower lives,” Fricke adds.

According to various industry studies, a typical single-family foreclosure costs a lender upwards of $50,000 per property, as much as $33,000 in direct costs to a borrower’s local municipality, and thousands of dollars in depreciating property values to a neighborhood affected by a foreclosed property.

In addition to providing counseling on foreclosure matters, the CCRC counselors also may be able to connect homeowners to other resources such as employment counseling, job search resources, and health-related services, etc.

To further enhance the effectiveness of the hotline and free counseling, the Homeownership Preservation Foundation also is participating in several initiatives focused on reducing foreclosures in key major cities.  The Foundation is participating in foreclosure prevention programs in Chicago, Dallas and Detroit.

Since joining the City of Chicago’s Home Ownership Preservation Initiative (HOPI) in January 2004, the Foundation’s consumer credit counselors have provided foreclosure prevention counseling to more than 1,000 homeowners.  The free counseling sessions have been instrumental in the program’s ability to help more than 750 homeowners develop action plans to avoid foreclosure. 

In a similar program based in Dallas in which the Homeownership Preservation Foundation teamed up with the City of Dallas, local nonprofits and local lenders, the CCRC counselors handled 1,000 calls and provided counseling to 250 households within a week after the program was launched in early June 2005.

The Homeownership Preservation Foundation (HPF) received its 501(c)(3) status in September 2004, and was founded with a $20 million contribution from GMAC-RFC, a leading private issuer of mortgage-backed securities and mortgage related asset-backed securities. The foundation partners with city, county and state governments; federal government agencies; community-based non-profit organizations; and mortgage lenders and servicers, to offer creative solutions to preserve home ownership.   For more information about the Homeownership Preservation Foundation, please visit www.hpfonline.org.

Palm Beach County foreclosures soar 226 percent


Article Courtesy of The Palm Beach Post

By Linda Rawls
Published September 14, 2006


Foreclosure rates in Palm Beach County soared in August to more than four times the national rate -

and rose a sobering 266 percent compared with the same month last year, a study released today shows.

The foreclosure report by RealtyTrac provides grim evidence that local homeowners are suffering from a

multitude of ills as the five-year housing boom comes crashing down: creeping mortgage costs, soaring

insurance premiums, rising property taxes, stagnant home prices and a growing inventory of houses for

sale.

Meanwhile, Florida's foreclosure activity surged to its highest level all year as a statewide housing slump

 takes hold, making Florida foreclosures last month the third-highest in the nation.

In Palm Beach County, 2,241 homes entered some state of foreclosure in August, a 226 percent increase

 over the same month a year ago, when 688 homes entered foreclosure, according to the report.

The county's foreclosure rate ranks third in the state, according to Irvine, Calif.-based RealtyTrac, which

 maintains an online database of foreclosed properties throughout the country.

Statewide, 16,533 homes entered some stage of foreclosure in August, more than any other state in the

 country and a jump of more than 50 percent over the previous month, RealtyTrac said.

Florida's rate of one foreclosure for every 442 households is the third-highest in the nation.

On a year-over-year basis, the most accurate comparison because it eliminates seasonal differences,

August foreclosures in Florida represented a 62 percent increase over August 2005, when 10,175 homes

 entered foreclosure, the report shows.

Today's foreclosure report comes on the heels of a Business Week investigation published in the current

 issue that shows 24 percent of all purchase and refinance mortgages in Palm Beach County are "option

 ARMs," or option adjustable-rate mortgages.

Only pricey Naples has a higher percentage of such mortgages, which Business Week calls the riskiest

loan product ever created.

"The homeowner at risk of losing his or her home through default or foreclosure is most likely someone

who opted for an option adjustable rate mortgage, or no-money-down loan product, any time after the

fall of 2004," said Wanda Alexander, chief executive of Horizon Consulting of Falls Church, Va., and

a member of the Foreclosure Economic Advisory Council.

In the Treasure Coast, the foreclosure rate for August was considerably less dire. In Martin County, one

 in every 1,091 homes entered some stage of foreclosure last month, on par with the national rate of

one in every 1,003 homes.

Sixty Martin County properties entered some stage of foreclosure in August, according to RealtyTrac,

an increase of 50 percent compared with the 40 homes that entered foreclosure in August 2005.

Martin County's foreclosure rate ranks 23rd in Florida.

In St. Lucie County, one in every 707 homes was in some stage of foreclosure, the report shows, with

129 homes entering the process in August, the 12th highest rate in the state.

RealtyTrac reports include all three stages of foreclosure: pre-foreclosure (notice of default and lis

pendens); foreclosure (notice of trustee sale and notice of foreclosure sale); and real-estate-owned

 transactions (properties that have been foreclosed on and repurchased by the lender).

Also, the delinquency rate for mortgage loans on one- to four-unit homes in Florida stood at 3.6

percent for the second quarter, the Mortgage Bankers Association said. Nationwide, the rate was

4.4 percent, down 2 basis points from the first quarter and up 5 basis points from a year ago.

 

 

THE HOA SECURITY MYTH

 

Valmore R. Lucier
May 31, 2004

            You live in a HOA (HOME OWNER'S ASSOCIATION) gated community. You have high walls, a guardhouse and a patrol to keep intruders out and to protect your belongings. You’re safe right? Wrong!

What you don’t realize is that you have a far more serious hidden threat right within the walls of the complex that is waiting to blindside you swiftly and silently if you make the wrong move. The very people who built all this false sense of security for you can steal your home right from under your nose.

            How can this be, you ask? To answer that question you have to understand other, not so obvious realities that come along as excess baggage when you chose community living

Florida has three prison systems. If you commit a crime you either end up in the Juvenile or the Adult prison system depending on your age. Half of Florida’s residents volunteer for the third one, a Florida [Condo] Association. Membership is mandatory for any buyer.

What do the three systems have in common? To varying degrees, they all deprive you of some of your rights.  What is different between them? In the first two you know the consequence of your actions, in the third, you don’t.

            When you chose to move into a Florida association complex, be it a Condo, a Coop, a Homeowners', or a Mobil Home Park association, the State of Florida demanded you surrender certain personal rights, which you did when you signed the Association Covenant agreement documentation.  The State of Florida empowered the association board of directors to enforce that covenants.  

The association is a legal entity recognized by the State of Florida (a corporation not-for-profit; a quasi government with powers that no other government agency has. It is the prosecutor, judge and jury).  The association assumes many important and far-reaching powers.

New buyers fail to realize this and the vulnerability they are placing themselves in and how much they are surrendering when they waiver the homestead protection which they are doing when they sign the association governing agreement. When you waiver your homestead rights you expose yourself to foreclosure, an action that only an unprecedented few can take. What is foreclosure you ask? In simple English, foreclosure takes your house from you and you loose everything you put into it.

In Florida your house, where you live is your homestead. The Florida Homestead Act is unlimited. It supersedes every other state law but only if it is properly claimed as a homestead. Your legal homestead is free from foreclosure against creditor claims except in two issues, one is the situation involving a government claim. The other is when you voluntarily allow it to happen for example, the mortgage company when you buy the home. It is a private contract that tells your bank if you don’t pay the loan, they can take the house from you. The agreement falls under private contract law. In this case when you sign that contract you know full well what is going to happen if you violate the contract. It was a conscious effort...even though you didn't know it at the time.

It’s not quite so obvious when you buy into an association. When you go to the closing table buying into a deed restricted community, one of the documents you get states your buying into such a community and that you agree to abide by its rules and those rules can be enforced by foreclosure. When you sign this document you are contractually waiving your homestead constitutional rights of exemption. How can you waive any Constitutional rights?

Keep in mind that at the closing the realtor, seller and buyer are all anxious to close the deal and little light is about to be shed on bad news. It’s usually “we have one more document to sign and were done.” What is it?”  “It’s the community deed restriction”.

               Low and behold you have just signed on to Florida’s third prison system without hint to that effect. Let’s put this waiver you just signed in context. For example

  • If you ran your credit card bill in the thousands of dollars, the credit card company couldn’t take your house away to get paid.

  • If you had bypass surgery and couldn’t pay, they can’t take your house either.

  • If a criminal bought a house with illegal money, the IRS couldn’t foreclose on him, but your HOA could if he owed them four cents like Wenonah Blevins did.

            Why are they allowed to do this you ask? They will tell you they need to get paid to run the place.

###

            Everybody agrees that associations need the assessments to be paid for them to meet their obligations. They operate on a budget and expect the revenue to be there on time. Revenue from imposed fines however does not meet the test. They are unplanned (you hope) windfall revenue. The legislature finally saw this and the 2004 legislation will prevent associations from converting fines to assessments, which can then lead to foreclosure. But we still need to focus on the approved method of collection for late assessments. Foreclosure (the taking of ones home) is unacceptable. Claim your Homestead through Florida Homestead Services now!

 

Cooper City At It Again...Commission Destroys Property Rights

Article Courtesy of John Sims
Published May 20, 2005

 

"He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance"
(paragraph 12 of the Declaration Of Independence)

 

This statement from the document that our country was founded upon now holds true in the quiet, upscale town of Cooper City. Located in Broward County, the city has come a long way in the past 25 years, improving property values due to its citizens and their pride in their homes, not from the actions of the city lawyers who now wish to decry their oath of office and take away more property rights from those who feed their substance. Of course, the "corporation" (aka City of Cooper City) now seeks to make more profits and increase their "stock price" by forthcoming fines and liens by Code Enforcement against the very people they are sworn to support and defend. 

 

It appears that Cooper City is continuing to place liens on homeowners even though they are clearly in violation of Florida law and the Florida Constitution. Your County and City government can pass any ordinances that they want.  The only restriction is that their ordinances may not be in conflict with a state law, and the ordinance must be for a "Valid Municipal Purpose". You can challenge ANY ordinance if it is not for a "Valid Municipal Purpose".  This is something that you MUST pursue through the courts.  You can do it yourself IF you get enough training so that you can avoid the traps:  OR, if you can 'acquire' a 'mentor' who can 'council' you as you go.  Otherwise, you will need an expensive attorney, not willing to "rock the boat" and bite the hands that feed him, who is willing to pursue this type of action and take every dime and asset you own in the process to pay his exorbitant fees...all because you want to have a boat in your yard?

 

IMPORTANT POINTS at this stage of the game: Make sure that you post your property to prohibit trespassing. Allow NO ONE from the city access to your property without a 'PROPER' Search Warrant. Pictures that are presented against you, that could NOT have been made without trespass, are evidence of illegal activity by that code enforcement agent. Per the Florida State Attorney General in his Legal Opinion Number: 

 

AGO 2002-27
Date: April 4, 2002
Subject: Code enforcement, search of private property

Is a local government code inspector authorized by law to enter onto private premises to conduct inspections or assure compliance with local technical codes without the consent of the owner or occupant, or having first procured a warrant?

In sum:

A local government code inspector is not authorized to enter onto any private, commercial or residential property to assure compliance with or to enforce the various technical codes or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises, or without a duly issued search or administrative inspection warrant. Local code inspectors are the authorized agents or employees of the county or municipality responsible for assuring code compliance, whose duty it is to initiate enforcement proceedings of the various codes. No member of the code enforcement board has the power to initiate enforcement proceedings. Code compliance and enforcement proceedings may be initiated against any building or premises, commercial or residential, subject to the technical codes referred to in section 162.02, Florida Statutes.

Administrative searches or inspections conducted outside the judicial process without consent and without prior approval (as evidenced by an administrative search warrant) are not reasonable, unless it can be shown that the administrative search or inspection falls within one of the well-established exceptions to this rule. The protection from unreasonable searches provided by section 12, Article I, Florida Constitution, and the Fourth Amendment to the U.S. Constitution, are extended to both business or commercial premises and to private residences.

In sum, it is my opinion that a municipal code inspector is without authority to enter onto any private, commercial, or residential property to assure compliance with or to enforce the various technical codes of the county or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises, or without a duly issued search or administrative inspection warrant. The procurement and issuance of administrative inspection warrants is governed by the provisions of sections 933.20-933.30, Florida Statutes. However, owner-occupied family residences are exempt from the provisions of sections 933.20-933.30, and a search warrant or prior consent and approval of the owner is required for a search of these premises.

Sincerely,

Robert A. Butterworth
Attorney General

 

###

 

Also, in Attorney General Opinion 074-292 dated September 23, 1974 the State Attorney opined that the city council may not constitutionally provide for the warrantless entry into and inspection of private buildings and construction projects within the municipality.

 

The city commission has passed, over strenuous objections by its citizens, a local ordinance to disallow boats at a residence if they are visible above a six foot fence. The city commission also threw in a bunch of new rules after public comment was taken, including registration of vessels and RV's in the city, all while the city attorney slept through the whole thing. Of course the bottom line is added revenue sources. If they have illegally "outlawed" boats and RV's today, what's next tomorrow? Where will it stop? I wonder what the county and state would have to say in regards to drastic loss of RV and Boat license, registration and tag revenues from this despicable act. A message to all Cooper City residents, we at FHS are here to help. 

                                  New Law Protects Homeowners from Code Enforcement Liens

It has been learned that code enforcement in the Panhandle region is citing residents and victims of last year's hurricanes for debris in their yard, roof damage unrepaired and many other code violations. It is sickening that the cities and county code enforcement personnel are preying on hurricane victims whom have yet to see one penny from insurance monies for claims of last years' natural disasters. Most people we have spoken to still do not have power, electricity, water and sewage services. Write your representatives and urge them to stop this victimization of our fellow residents.

FLORIDA STATUTE  CHAPTER 162 Part 1-LOCAL GOVERNMENT CODE ENFORCEMENT BOARDS
CHAPTER 162.09(3) Administrative fines; costs of repair; liens: "No lien created pursuant to the provisions of this part may be foreclosed on real property which is a homestead under s. 4, Art. X of the State Constitution.  The money judgment provisions of this section shall not apply to real property or personal property which is covered under s. 4(a), Art. X of the State Constitution." Protect yourself  and your real property with our proven process today. Don't wait for a code enforcement lien or a judgment to be filed against you or your real property!

When a Home Isn't Safe - Foreclosure in Florida

 

Article Courtesy of The Ledger

EDITORIAL
Published January 22, 2005

 

A little-known fact in Florida: Just because a homeowner has homestead exemption, it doesn't prevent a homeowners' association from foreclosing on the home for failure to pay association dues. "I don't want anyone to go through what we went through," Robert Denson, 42, told The Miami Herald this month. He lost his Boynton Beach home in 2003 when the association foreclosed on a $1,200 debt it was owed.

Denson said he and his wife, Theresa, were behind on their dues when they separated for several months. He told the paper they had used their $18,000 life savings to purchase the home in 2000. Once they were back together, they began paying accumulated bills, starting with the mortgage. "I figured the mortgage was more important," he said.

Homeowners' associations, however, take precedence. The Densons were mailed several past due notices, association attorney Randall Roger told The Herald. A lien was filed. Foreclosure came in the fall of 2003. When no payment was forthcoming, the home was sold. Such drastic action is not just confined to Florida. In California, a homeowners' association forced foreclosure on a home that owed a $120 debt to the association. The legislature passed a bill preventing such foreclosures for small amounts, but it was vetoed by Gov. Arnold Schwarzenegger.

Schwarzenegger called the legislation "overly broad," and said if homeowners' associations didn't have the power to force payment of dues, those who voluntarily paid them would be paying higher costs. He added that state agencies need to refine the practice so "foreclosure only occurs after every reasonable alternative is exhausted."

Once a homeowners' association takes legal action to collect delinquent dues, legal fees can be added to the homeowner's bill. Jan Bergemann, head of the nonprofit statewide Cyber Citizens for Justice, which tracks association foreclosures, told The Herald that boards can "bring homeowners to their knees because they have unlimited [access to pay] legal fees." In some cases, he said, legal fees can become six, eight, 10 or more times the size of the bill the association is trying to collect.

But there seems to be agreement in Florida about the power of homeowners' association. While they need to be able to collect money to operate -- and depend of the annual payments -- homeowners also need protection from overzealous associations that charge exorbitant legal fees or bring foreclosure action over a few hundred dollars.

Dan Shapiro, a partner in a California law firm that represents more than 2,000 associations and management companies, told a reporter last year: "At some point, the responsibility has to be on the person who's not paying their assessment. If the law firm or the trustee that is doing the collecting is following the rules and the person is just not doing what they're supposed to be doing -- paying -what alternative is left to the association?" This session, Florida legislators need to give associations an alternative before the step of foreclosure is taken.

 

FORECLOSURE - Small debt can spiral into loss of home

 

Article Courtesy of The Miami Herald

By DONNA GEHRKE-WHITE
Published January 9, 2005

This should be one of your most important New Year's Resolutions: Remember to pay your homeowner or condo association dues and bills on time -- or risk losing your house. Just ask Robert and Theresa Denson and their four children. They lost their Boynton Beach home when their homeowners association foreclosed over a debt of $1,200. A year later, they are renting an apartment. ''I don't want anyone to go through what we went through,'' says Robert, 42.

The issue of homeowner and condo associations foreclosing on homes to collect small debts has spawned debate nationwide. California legislators passed a bill that would have prevented homeowners associations from foreclosing on homes to collect small debts after a family lost their home over $120, but the bill was vetoed by Gov. Arnold Schwarzenegger.

Florida consumer groups plan to ask state legislators and Gov. Jeb Bush to support similar legislation in the upcoming session that begins in March. No group keeps statistics on association liens and foreclosures, but it's probable that thousands of Floridians face legal action over fees every year. ''We think there have to be safeguards in order to avoid what I consider ridiculous foreclosures,'' says Jan Bergemann, head of the nonprofit statewide homeowners consumer group, Cyber Citizens for Justice ( www.ccfj.net).

''These boards are absolutely powerful,'' he adds. ``They can bring homeowners to their knees because they have unlimited [access to pay] legal fees.'' Community associations have broad powers to foreclose -- and leave owners homeless -- if members don't pay their regular dues or special assessments, says Fort Lauderdale attorney Blane Carneal.

''There is fundamental ignorance -- people are under the impression that an association cannot foreclose if they have a homestead exemption,'' he says. Until last year, when the Legislature enacted a change in the law, associations could also foreclose on homes whose owners didn't pay fines.

BALLOONING BILLS

Bills can quickly balloon for homeowners who get behind in their payments, because they are charged not only late fees, but the legal fees of the lawyers hired by the associations to collect the payments. Bergemann says it's typical for a homeowner who owes $500 to be hit with $3,000 or $4,000 in legal fees. His group, he adds, hears horror stories of associations filing liens on people who owe a few dollars or are just a few weeks late. One man who owed $76 had to pay $800 in legal fees to keep his homeowners association from filing a lien against his property, he says.

''The majority of people who get into trouble were making payments but for one reason or the other -- they get laid off, they get sick -- and they didn't make their association payments,'' Carneal adds. ``They didn't understand the consequences of that.'' Robert Denson says he and his wife had gotten behind on their dues when they separated for several months. Once they got back together, the Densons tried to start paying their debts. They had used their life savings, about $18,000, to buy the house in 2000, the couple said.

''I figured the mortgage was more important,'' he says, so he paid that first rather than what they owed the homeowners association. ''People don't realize how devastating this can get,'' adds Cathy Lively, a West Palm Beach attorney who helped the Densons get about $10,000 in equity after their house was foreclosed on and sold at auction. She says by the time the Densons came to her last March it was too late to save their house, now worth an estimated $375,000. ''They unfortunately sought legal counsel after it had been sold,'' she says. ``That's why it is so very important to take action immediately.''

NO DEAL

The Densons say they were confused. Robert Denson says he thought he had an oral repayment agreement worked out with the president of the homeowners association but ''the president didn't make a deal,'' says association attorney Randall Roger. Roger, a Fort Lauderdale attorney for the homeowners association, says that the couple were mailed several past-due notices, first by the association's management company, then by himself.

The association filed a lien, then foreclosed in fall 2003, when it still hadn't received the past-due money, Roger says. The house was sold in December 2003. Typically, homes sell for below-market value at foreclosure auctions and owners lose tens of thousands of dollars in equity, attorney Lively says. The Densons had to hire her to get the $10,000 that they ultimately received from the sale of their home, after their debts, including the homeowner dues and legal fees, had been paid. As a homeowners association attorney, Roger says he doesn't like foreclosing. ''My job is not a pleasant one,'' he says.

SOMETIMES NECESSARY

But sometimes, he says, it is necessary to protect the associations -- and all the other homeowners who have paid their fees. The association needs the money to maintain the common areas, the clubhouse and other amenities. If one owner doesn't pay, the others have to pay more. ''The assessment is the lifeblood of the association,'' adds attorney Donna D. Berger, who is executive director of the statewide Community Association Leadership Lobby (CALL), an advocacy group for associations.

However, both she and Roger agree that the Legislature should look at curbing abuses -- such as outrageous legal fees or an association foreclosing on an owner who owes a few dollars. But volunteer consumer advocate Bergemann says it's the entire system that needs reforming: Association boards now have too much power to take homes. ''Foreclosing on their neighbors -- they are not doing anyone a favor,'' he says.

 

WESTON -- Liens filed for cable TV debts

 

Article Courtesy of  The MIAMI HERALD

By
Posted on Sunday, January 2, 2005

 

Between Jan. 1 and Dec. 17, 2004, the Town Foundation, Weston's homeowner association, filed liens against more than 200 homes in the city. Most of these, according to Broward County court records, are for unpaid cable TV bills, which until 2003 were collected by the foundation. The city utilities department now handles that task.

The records also show that in many instances those homeowners had missed only one quarterly payment. This has residents up in arms, arguing that the punishment hardly fits the alleged crime. They also contend the association did not exhaust all avenues available to collect the debt before pursuing harsher legal action.

It's not clear whether the foundation did anything to bring the accounts up to date or if residents facing liens owed the association fees other than those listed in the court documents. The foundation attorneys were not available for comment last week. One of the upset residents is Vincent Andreano, whose mother, Lita Andreano, was faced with the predicament of losing her Weston Country Club Home for a $109 cable bill that he said had been left outstanding by the previous owner.

The Andreanos said that when closing on the home about a year and a half ago, they came upon the outstanding debt and sent a check. ''No one ever contacted me or my mother afterwards to tell us they had not gotten the check or that the debt was still outstanding,'' said Andreano, an attorney. ``Then a year and a half later, they slap my mother with a foreclosure lawsuit. It's legal brutality.'' Andreano said he tried to reason with Town Foundation attorney Douglas Gonzales, whose signature appears in the lawsuit paperwork, to no avail. He said he was told to pay the debt, plus legal fees billed at a little more than $200 per hour, in addition to court filing fees and other miscellaneous charges. The final tab: more than $1,500.

Gonzales said Wednesday he could not comment on the liens and foreclosure actions in Weston and referred all inquiries to City Attorney and Town Foundation lead attorney Jamie Cole, whose vacation ends tomorrow. Weston Mayor Eric Hersh, one of the master homeowner association officials, did not return telephone calls from The Herald. Florida law does allow homeowner associations to file liens against properties and move towards foreclosure for unpaid fees. The statutes do not require that other means be exhausted before seeking to expropriate. Neither do they cap the amount of money that can be charged on legal fees -- in many instances higher than the debt itself -- and other charges.

State Rep. Julio Robaina, R-South Miami, who has championed reform in condominium association laws, is now writing a bill that seeks to reduce the number of liens filed for small sums by setting new debt limits. I'd bet it wont pass, as the lawyers profit from these scenarios on a grand scale.

Liens filed against community upstages couple's home

 

Article Courtesy of  The Palm Beach Post

By Jane Musgrave
Posted on Saturday, December 18, 2004

 

For what could have been a nightmarish house move, Brock and Carrie Wagner figured, this one was going to be a snap.

Their three-bedroom house in Lake Charleston sold the first day they put it on the market. They spent $10,000 renovating the house next door, which they had planned to rent until their new house was built. This week, they boxed up the last of their belongings and headed off to sign papers turning their house over to its new owner.

That's when the nightmare began. The title company discovered $32,500 worth of liens on their house. Although the liens were filed against the Lake Charleston Homeowners Association by two companies that claim it hadn't paid them for their work, the liens affect all 2,400 homes in the community south of Hypoluxo Road west of Boynton Beach. And, title company officials said, until the liens are resolved they won't clear the title so the Wagners' house can be sold.

"I'm in a world of trouble," Brock Wagner said. "If this deal falls through, I have to move my stuff out of the rental house and move it back into my house, and I'll be out the $10,000 I spent fixing up the rental house." With the contract with the new owner set to expire Monday, he said, the clock is ticking. Fueling his anxiety is the fact that there's nothing he can do to stop it.

The Wagners and their two young children, those familiar with the situation say, are the latest victims of a feud that has consumed the homeowners association for the past year. The already-complicated situation got even more complex this week when new board members, who briefly took control of the board in a failed coup earlier this year, were elected to replace the board that was in place when the liens were filed.

"The politics are just out of control," said attorney Ian Berkowitz, who represents the landscaping and irrigation companies that filed the liens, Top Cut Lawn Services and Aqua Pro Irrigation Inc. Like the Wagners, he said, his clients are innocent victims. "Because of the infighting in the community, guys like my clients are stuck in the middle," Berkowitz said. Further, he said, he represents another client, Jason's Tree Service, which might file a roughly $46,000 lien if its bill isn't resolved soon.

He said he sympathizes with the Wagners and that he didn't intend to hold them hostage. Other Lake Charleston residents have been able to sell their homes since he filed the liens in late October and early November. Other title companies let the sales proceed after the homeowners association signed affidavits saying it recognized the liens had been filed and could cover them.

However, Jeff Howeth, general counsel for Commerce Title, which is handling the Wagners' sale, said the affidavit doesn't protect his company in the event the liens aren't resolved. He said the liens are unusual. "It's odd that they're filed against all the property in the community," he said. "Quite honestly it's a little bit of overreaching by the (companies) who may have an aggressive lawyer who is trying to muck things up to get the HOA's attention."

Berkowitz contends that putting the liens on all the homes is the only way to assure his clients will get paid. "I made sure I wasn't overreaching," he said. All involved said there are various ways for the matter to be resolved. The association could pay off the liens, post a bond for the amount or give the title company the hold-harmless agreement it wants. But after watching three scheduled closings come and go last week, Wagner said he isn't hopeful.

"Looks like we're going to have to sue, sue, sue," he said. Ah yes...more lawyers fees.

 

RIDICULOUS LAWSUITS...ONE REASON LAWSUITS COST EVERY FAMILY IN FLORIDA OVER $3300 A YEAR!

 

Court tosses foreclosure on West Boca condo that began with 78-cent delinquency

 

Article Courtesy of The Sun Sentinel

By Tal Abbady
Posted July 22 2004

 

West Boca · Cheryl McKenna was only 78 cents delinquent in her condo association fees in July 2002. And that's all it would have taken for Camino Real Village to file a lien on her property. Instead, the association added hundreds of dollars more in fees to the lien, and on Wednesday, the 4th District Court of Appeals in West Palm Beach reversed the foreclosure.

"Having this foreclosure hanging over my head has been a nightmare," said McKenna, who is in her 50s and works in a travel agency. The court ruled that the association failed to follow its own bylaws when it issued a lien on McKenna's property on Aug. 29, 2002, without waiting for a 30-day grace period to expire. At the time, she was behind 78 cents for July 2002, and $229.89 in maintenance dues for August 2002.

But, according to Wednesday's court ruling, the homeowners association didn't follow its own rules, declaring her delinquent on the $229.89 before the 30-day grace period had expired. Camino Real Village filed its claim on Aug. 29, 2002. The association didn't properly notify McKenna that it also was demanding advance maintenance payments for the rest of 2002, the court said.

McKenna claims that the association was demanding thousands of dollars, including legal fees and late charges. She refused to pay, and says that foreclosure proceedings were started without her knowledge. It wouldn't have been unprecedented for the association to file a lien for as little as 78 cents, according to Jan Bergemann, president of the statewide homeowners group Cyber Citizens for Justice.

"Seventy-eight cents is not even the record," he said; homeowner associations have filed liens for less. "Foreclosure liens are used as a profitable weapon. You're not going to tell me an association is going to go broke over 78 cents." McKenna concedes she struggled to keep up with the monthly payments in the community where she has lived for 12 years and raised her 21-year-old son as a single mother. Shortly after the Sept. 11 attacks, she lost her job as a travel agent and floundered financially as she attempted to find work and start her own business.

In the year after Sept. 11, she racked up about $5,500 in late fees, and says the association filed a lien then as well. But she pre-empted further action by paying what she owed. Robert Blake, president of the association, said board officials tried to work out an arrangement with McKenna, but declined to give details.

"Are you kidding? A lot of effort went into it," he said of the attempts to strike a deal. "She owed thousands of dollars." David A. Core, attorney for the association, could not be reached for comment despite attempts by phone. Now McKenna's case goes back to Circuit Court Judge John D. Wessel for a new hearing. But her troubles aren't over.

When she was on the verge of losing her two-bedroom condominium to foreclosure, a firm called Real Estate Depot entered the picture, offering to save her home for a fee. She thought she was borrowing money to avoid foreclosure, but ended up signing away ownership of her condo. Now, McKenna said, Real Estate Depot is demanding she pay to get the deed back.

She's still living in her condo with her son. McKenna hopes Wednesday's ruling will void her transaction with Real Estate Depot, which she says was made under duress. She also is suing Real Estate Depot, claiming it took her deed illegally. Real Estate Depot and its representative, Alan Klasfeld, could not be reached for comment, despite attempts by phone.

Attorney Yale Mannof, who filed the suit, said companies such as Real Estate Depot prey on vulnerable homeowners desperate to thwart foreclosure proceedings against them. "They came to her at the 11th hour and presented her with a gang of papers to sign," Mannof said.

When she received the offer of help from Real Estate Depot, "I was at my wits end," McKenna recalled. "All I knew is I didn't want to lose my home. They told me `You'll be able to stay in your house. We'll help you.'" "I thought they'd just show up at the sale to represent me and put up some money so I wouldn't lose my house. I had no idea they were going to record a deed and put my home in their name," she said.

"She had to make a deal with the devil in order to save her house," said Richard Glenn, her foreclosure attorney. "If I had had the money I might have paid it," McKenna said of the fines that sparked her ordeal. "It's incredibly stressful to think you're going to lose your home."

Even more so, Glenn said, when it's for a pittance. "Maybe this will force the homeowners association to sit up and take notice of the fact that they have to follow their own rules," he said.

 

$108 delinquency costs woman her home

 

Orange County (05/13/02) -- Your homeowners association can be your best friend, helping maintain your neighborhood and your investment. But that same organization could be your worst nightmare. Just ask a local homeowner who broke a rule and ended up homeless. Action 9 reporter Todd Ulrich investigates a case that could give any homeowner the chills.

It was moving day, but not by choice for local homeowner Nancy Demateis. She no longer owned the home she bought 16 years ago. "Never in my wildest dreams did I think it would come to this!" Nancy told Action 9. Nancy's own homeowners association in the Sheeler Oaks development took the house away from her. The association kicked her out for not paying her annual dues. The total amount due at the time . . . just $108. "It's very, very, very hard to comprehend," Nancy tried to explain. 

Just 8 months earlier, Nancy had withheld her payment over a dispute with the management company. She felt her complaints about a neighbor's home had been ignored. Eventually she did get a notice from the homeowners association. It was a notice telling her the association had placed a lien on her house. "I felt that I fully understood what the notification was," Nancy recalled. 

But she didn't really read all of it. There was more. In that same document she was also being notified that her association would foreclose on her home for not paying the $108 bill. This past January, the association did just that. Just 4 weeks later, Nancy's home was put up for sale at the Orange County courthouse. During that public auction, her home was sold to the highest bidder. And within days the new owner was at her front door, telling Nancy to either buy her house back from them or pack up and get out. 

"How does someone walk in and say get out, we bought your house, when I know that it's my home," Nancy asked. We asked that same question to some of Nancy's neighbors. We could not find a single homeowner in Sheeler Oaks who knew what the association had done. Kathleen Willard didn't like what she heard. She's a resident in the Sheeler Oaks subdivision and subsequently a neighbor to Nancy Demateis. She found it quite shocking. "I don't think my homeowners association would be like that." she told Action 9. 

The management company that oversees Sheeler Oaks would only say it followed the rules. But, nowhere in the association board minutes could we find the Nancy Demateis case. We reviewed several months of minutes that were posted online. Our investigation found association board members that had never even heard of the foreclosure. "If it was just the $108 and it was just recently owed, then I would say it was much too quick and much too harsh for that," according to board member Carlene Elmore. 

No one disputes Nancy Demateis owed a bill that she did not pay. Nor is there a dispute that homeowner associations can foreclose for non-payment. But a growing number of homeowner association critics say many boards act like neighborhood tyrants, rushing to foreclosure, the worst penalty possible. At least one board member at Sheeler Oaks wants to review what happened to Nancy Demateis. 

 

Woman's property foreclosed over $63.50 fee
Homeowner says she was neither billed nor notified of assessment

 

Article Courtesy of the Ocala Star Banner
By MONICA BRYANT
Published February 27. 2004 

OCALA - Four years ago Pat Smith bought a piece of property in Kingsland Country Estates, built a house on it and moved in. Two years after settling in, her father bought a house in the same subdivision. But when he received an assessment from Kingsland Country Property Association Inc., she questioned why she never got one.

Smith said when she called she was told the paperwork was messed up and she would receive a bill once it was straightened out. She never did receive it. But on Jan. 16, she received a registered letter informing her that her property was in foreclosure for failing to pay three years' worth of assessments totaling $45, plus $18.75, for the current year.

"The whole thing is ridiculous. Who does this to people?" Smith said. "I never got a bill. Why didn't they just send me a letter and be nice neighbors?" Smith said when she contacted the Homeowners Association attorney, she was told it was her fault and she should pay it. She said the lien was placed on the property on Dec. 4, but she didn't receive the notice of lien until Jan. 20.

"They put a lien on my property on Dec. 4. They have 15 days to notify me," Smith said. "I didn't get notified until Jan. 16. I only had to Feb. 13 to get them a check." She said if she didn't pay in full by the due date they would foreclose on her property and incur additional costs. Smith said she ended up paying more than $360 to settle the debt, which included fees for a title search, the attorney, document preparation, the notice of lien, a record lien and interest.

"I truly am sorry that they are upset," said Bernie Nowak, president of the Homeowners Association. "Last year practically every newsletter asked property owners to pay their assessment on time because we were switching from a fiscal year to a calendar year. "If you didn't have any other notice, that last newsletter tipped you off to the fact you should get your house in order," he said.

Smith maintains she never received any kind of literature until she received the foreclosure notice. She said she requested copies of the bill that was sent out to her, the title search and the release of lien now that she's paid the debt but she hasn't received anything. Nowak said in 2001 there was a dispute about which Homeowners Association had legal jurisdiction, and until it was resolved there was a reduction in dues to $15 year and they were put on hold. He said now that Kingsland Country has legal standing over the Whispering Pines and Forest Glenn subdivisions, the organization wants to recoup some of the money owed to the Association, which totals more than $60,000.

According to records at the Marion County Court House, in 2003, the Homeowners Association filed 25 county civil suits against property owners who did not pay the assessment. Nine cases remain open, but 16 have been closed. Jonathan Dean, an attorney who represents the association, said he couldn't comment on whether Smith received any notices. But he said the group routinely sends out annual notices and $15 per year is a modest sum.

"The fact that 95 percent or so pay on a timely basis indicates that there is not really a problem," Dean said. "These have been delinquent for years. All the residents have an obligation to make sure their assessment is paid. The deed restrictions are very clear that there will be an annual maintenance assessment." Smith maintains she had to pay because the association didn't keep good records.

"They way that they did it was wrong," she said. "Where I lived before I was the clerk for an association and we did things right. We never put liens on people's property."

New Supreme Court Ruling Stirs Controversy Regarding Eminent Domain

Regarding on the new ruling by the Supreme's, we don't expect a rush to claim homes. The message of this case to local governments and municipalities is yes, you can use eminent domain under very strict and extremely limited circumstances, but you'd better be darn careful and conduct hearings. Reading this case as it was litigated, leads us to believe that a municipality could pursue private development under the Fifth Amendment which allows governments to take private property if the land is for public use, but only if the project that the city has in mind promises to bring more jobs and revenue. the problem is that any and all private real estate can bring additional tax revenue. it kind of reminds us of the fact that we may indeed be living in a tontine society.

At least eight states, including Florida, forbid the use of eminent domain for economic development unless it is to eliminate blight (Blight is generally referred to as something that impairs growth, withers hopes and ambitions, or impedes progress and prosperity). I don't think many homes in Florida would qualify to be taken by a municipality under the new case law, but this is not a message to ignore protecting your real property under the law. 

Good news for Florida homeowners though...the majority and the dissent of the high court opinion both recognized that the action now turns to state supreme courts where the public use battle will be fought out under state constitutions and laws. There will be many organizations that exist that will be there every step of the way with homeowners and small businesses to protect what is rightfully theirs. The Court simply got the law wrong, and our Constitution and country may suffer as a result. The court decision in no way binds state courts.

Obviously, the full and complete effects of the case remain to be seen. It will have virtually no effect in the eight states previously mentioned that specifically prohibit the use of eminent domain for economic development except to eliminate extreme blight: Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington. Most legal experts do not see a rush by cities to take advantage of the decision. 

We at Florida Homestead Services are in this battle to help you save your home and, in the process, protect the rights of hard working people of this state and any other homeowner throughout the state, rich, middle class or poor. We are very disappointed that the high court sided with powerful lawyers, government and business interests, but we will continue to fight to save homes and to preserve the Constitution and our way of life. Still, this synopsis and opinion is not a valid reason to ignore the awesome state legal protections afforded to you and your property under the law. Contact us for more information, or read the new Bill proposed by a Florida Representative to disallow this from happening in Florida.

 Consumer Debt At An All Time High

Federal statistics show the average debt for American households is now at the all-time high of 114 percent of their yearly take-home pay, up from 86 percent a decade ago. Meanwhile, personal savings for Americans have dipped from around 5 percent of their yearly take-home pay a decade ago to an extremely low 0.2 percent today. And a survey this week from consumer group Myvesta said the average American now has almost three times as many credit cards with $2,627 each in total debt - up almost 15 percent from last year.

Americans spend $665 billion more than they earn each year. The federal government's deficit is not the only problem. The deficit inside American homes may pose an even bigger threat. Paul Kasriel, senior vice president and director of economic research at the Northern Trust in Chicago , told about 100 invited guests of the First National Bank and Trust Company that America 's free-spending ways hold serious risks for the future. Kasriel addressed the group Thursday night, at the Country Club of Beloit. Presently, Americans are spending about $665 billion a year - $1.8 billion a day - more than they earn. "We are using this $1.8 billion to throw a party," he said, "to buy bigger SUVs, and bigger McMansions, along with bigger and more expensive government programs." 

Since 1929, Kasriel said, in all but a few years U.S. households ran a surplus, meaning the typical family spent less than it earned. The trend began to change in the 1990s and, since 1999, U.S. households have operated each year at a growing deficit. In fact, U.S. citizens are spending $1.04 for every dollar they earn, he said." Households are just not saving," Kasriel said. The debt in America is largely being financed by foreign central banks investing in U.S. financial instruments, but economists expect that trend to slow, resulting in a declining value of the dollar over the next three to five years. A lower dollar will boost U.S. exports, benefiting manufacturers, but also fuel inflation by increasing the cost of imported goods. There's considerable risk associated with rising inflationary pressures, Kasriel said, with the expectation the Federal Reserve would move to increase interest rates to slow rising prices. First, rising interest rates would force debt-ridden consumers to pare back spending, weakening retail sectors in the economy. 

Kasriel said he expects significant pull-backs in spending by consumers in the next five years. More ominously, rising interest rates could undercut the American housing market. "Households today hold more debt relative to assets than they ever have," he said, adding that the rate of personal bankruptcies is at a 40-year high. Consumer spending has been financed significantly by high housing values coupled with low interest rates, allowing homeowners to refinance and withdraw cash from equity to purchase goods and services. If interest rates rise and housing values stagnate, families could be caught in a dangerous squeeze. "When interest rates go up, housing affordability is going to fall and fall rapidly," Kasriel said. 

"Housing is over-valued, and we've been treating our houses like ATM machines." But Kasriel is not suggesting economic calamity is just around the corner. Rather, he said, " America is going to become reacquainted with a lost value, something called thrift, or saving." The Bush second-term agenda represents saving as a common theme, he said, including incentive programs to encourage people to save money; making tax cuts permanent; reforming and simplifying the tax code; and reforming Social Security to promote ownership. "It's really not a radical idea," he said. "A lot of other countries already do this." 

Life and the economy today is so uncertain in todays world it could all change in one day. We think that being out of debt as soon as possible is the best thing you could do for your family. Contact us today and protect your real property from debt! No estate plan is complete without our services here at Florida Homestead Services.  

Broward Property Appraiser Accuses Homesteaders of Fraud and Losses of Over $13 Million

A team of investigators working with Broward Property Appraiser Lori Parrish claims that they have uncovered property owners who claimed homestead exemptions to reduce taxes on vacation homes and rental property, not their primary residence. The investigation allegedly relied a great deal on tips from neighbors but has begun moving into a new phase in which investigators are checking tax records against utility bills to rat out those who have homestead exemptions on real properties where the appraiser claims that the homeowner's don't currently live, although they claim to live there.

Just to clarify the law a bit, we thought we would let you know the facts regarding what constitutes a homestead. One's Homestead is a rather simple equation in the end; use of the residence plus intent to remain. The notion of "home" is an elusive and elastic concept that remains a powerful component of virtually every culture. Emily Dickenson wrote, "Where thou art, that is Home." Robert Frost observed that "Home is the place where, when you have to go there, they have to take you in." Johann Wolfgang von Goethe claimed, "He is the happiest, be he king or peasant, who finds peace in his home." And Christian Morgenstern offered, "Home is not where you live, but where they understand you."

The notion that the home is not only one's castle but that one's castle should be protected from one's creditors is very much a part of the American legal landscape, and that is never more evident than in the very generous homestead exemption found in the Florida Constitution. The constitutional provision exempting a homestead does not designate how title to the property is to be held and it does not limit the estate that must be owned; therefore, an individual claiming a homestead exemption need not hold fee simple title to the property. Once a property acquires the status of a homestead, that characteristic continues to attach to it unless the homestead is alienated in the manner provided by law. Alienation (the legal definition) means complete written declaration of abandonment or purchase of a new homestead, or renting out of the entire parcel of homestead property on a permanent basis. A homestead will lose its status by abandonment only when the owner voluntarily abandons the homestead with no intent to return. Briefly renting a home while traveling back and forth to another state or country does not abandon the homestead status. Absence for financial, health, job, travel, family or any other reason is not abandonment.

In order to qualify his or her property with homestead status, the person seeking the homestead exemption simply must have an actual intent to live permanently on the property, as well as the actual use and occupancy of the property. A citizen's right to homestead protection under the Florida Constitution is considered a paramount rule of public policy that would justify departure from an otherwise applicable rule of comity. For the purposes of the homestead exemption, it is enough if the one claiming the homestead exemption has any beneficial interest in the property; it is not necessary that he hold any legal title to the property. Mere possession without any title whatever is sufficient to support the claim of homestead, where such possession is lawful. Any equitable or beneficial interest in land also gives the claimant the right to exempt it as his homestead. Thus, under Florida law, a homestead exemption can only be claimed for one parcel of property, that property must be owned by the person claiming the exemption, and it must be the primary residence of the owner or his family. What constitutes homestead property is a question of fact. Both the physical characteristics of an asset, as well as its use, should be considered in determining whether the asset is exempt under the homestead laws.

In order that the claim of homestead be sustained, the disputed premises must be occupied as a homestead by the claimant as his actual residence. The fact that a certain homeowner had never filed a tax return in the United States was not sufficient to demonstrate that the debtor did not live in the home in question for purposes of the homestead exemption. A taxpayer must reside on the property on January 1 of the relevant tax year in order to satisfy the requirements of Article VII, section 6, Florida Constitution, and section 196.031, Florida Statutes, which authorize the tax exemption for qualified homestead property. However, Florida courts have held that the physical presence of the owner is not a requirement of either the Florida Constitution or the statute. The overriding test is whether or not it is the "family home" in actuality, and has the element of permanency. Ultimately, all that is required to establish a homestead under Florida law is that property owner reside on property and, in good faith, make property his permanent home.

In order to be entitled to the homestead exemption, continuous, uninterrupted residence is not required. Although daily residence is not essential, a homestead right does not extend to property that the claimant has not occupied as a dwelling place or home. It frequently happens that a homesteader may own two separate pieces of property within the state, both of which he may occupy at intervals. It is a general principle, however, that there must be an intention to reside on the property as a permanent place of residence before a claim of homestead rights therein may be sustained. And it seems clear that the claimant cannot have two permanent residences at the same time, the designation of one property as the home being a question of fact. If it is shown that the owner has ceased to occupy the disputed premises and has established his residence elsewhere, he may not successfully claim a homestead right therein.

In the recent bankruptcy case of 'In re Prestwood' (US Bankruptcy Court, Case No. 02-23764-BKC-PGH-7, So. Dist. Of Florida), the trustee's position in this case sought to recover certain alleged fraudulent transfers and also objected to the debtor's claimed homestead exemption. The debtor listed an interest in a condominium located in Pompano Beach, Florida, which he claimed as his homestead. The first count of the complaint contended that the debtor was not entitled to claim a Florida homestead because he never intended to live in Florida but simply kept a "vacation property" here. It was the debtor's contention that he lived in Florida but routinely traveled back to California for his work. The confusion related to the residential property the debtor and his wife owned in Huntington Beach, California. However, for purposes of the homestead issue, the inquiry is rather simple: did the debtor in fact move to Florida with the intent to reside there indefinitely?

The trustee, however, pointed out that prior to the bankruptcy filing, the debtor did not have a Florida bank account or own a car registered in Florida. The debtor failed to claim Florida's homestead ad valorem property tax exemption, which only allows for a reduction in the payment of real estate taxes for Florida residents. The debtor's bankruptcy petition showed a California mailing address. The debtor's tax returns listed the California home as his residence. On credit applications and personal guaranties given to vendors doing business with a corporation, the debtor listed the California property as his residence. The trustee also supplied the Court with bank records showing the use of his wife's debit card; most of the charges which were incurred in California, not Florida. Perhaps the most significant objection the trustee raised to the court was regarding the debtor's purported Florida homestead is the fact that the debtor continued to work for various California companies.

What this array of conflicting testimony means is that there is no "smoking gun," no concrete, conclusive evidence of the debtor's actual domicile or homestead. Such things as one's mailing address become a transitory concept, based more on ease of access wherever one might be at the moment, rather than on the idea that one's mail should be sent to where you "live." It is, one might suggest, simply the modern equivalent of the old saying, "Home is where I hang my hat."

None of this, however, should imply that such a debtor is to be denied the opportunity to claim a homestead to the extent one is appropriate. Indeed, one of Florida's strongest exemptions is that which protects homestead property. As more than one court has indicated, the Florida Constitution grants debtors "a liberal exemption" for homestead property. In Florida, a homestead is established when there is "actual intent to live permanently in a place, coupled with actual use and occupancy." Ultimately, all that is required is that the property owner reside on the property and in good faith make the same his permanent home. Exceptions to the homestead exemption must, by law, be strictly construed in favor of claimants and against creditors or legal challengers.

However, on the issue of this debtor's homestead, the Court had to eventually conclude that the debtor had provided sufficient evidence of his residence in the Pompano Beach condominium and his "actual intent" to live there permanently prior to the filing of this bankruptcy case. His declaration of homestead affidavit and claim was sufficient. One’s homestead or domicile is a rather simple equation in the end: residence plus intent to remain, along with the homestead declaration claim.

Exceptions to the homestead exemption are to be "strictly construed" in favor of any claimant, and the courts can only conclude it that a debtor resides on the property and "in good faith" intends it to be his permanent home should a claim be filed. Being a Florida resident, having your bills and mail sent to the same address, and having a driver's license showing the same address, is not required, although the statute gives the property appraiser the right to use those items as part of the issue regarding the facts of each case. The statement in the article linked below; "the only place to dispute a lien is in a courtroom..." does not ring true. 

Read more about how to fight the denial of a homestead tax exemption here

Is Your Homestead Exemption Legal?

Florida statutes are vague when it comes to describing who qualifies for homestead tax exemption status and Save Our Homes tax breaks. To learn more, one must turn to the judicial system and the court opinions on the matter. To qualify for the tax exemption, a person must intend for their Florida home to be their permanent residence on Jan. 1 of the tax year. There are clear opinions, however, for how much of the year that person must actually live in the home.

Beyond the residency requirement, what is considered illegal homesteading changes from one county to the next depending on how local officials interpret state law. the problem is, they don't know the court rulings and case law on the matter. Questionable practices per the property appraiser include:

* Renting out a home you own;

* Applying for homestead status on more than one property;

* Putting one homesteaded property in a husband's name and a second in a wife's. [Note: Not necessarily a violation, in fact it is allowed]

* A person loses their protected status if they sell their home, give it away or will it to relatives who aren't already listed as owners.

You are breaking the law if you claim a homestead illegally, but chances are you won't be prosecuted. Instead, counties typically place a lien on the property to collect the unpaid taxes, fees and interest. In addition to forcing repayment of any money saved, state law allows for a 50 percent tax penalty and 15 percent annual interest on the illegal savings. Someone who saved an average of $2,000 a year for five years could be hit with a $16,500 bill.

Intention to establish a permanent residence is a factual determination to be made, in the first instance, by the property appraiser as allowed by statute. The following are relevant factors that may be considered by the property appraiser in making a determination as to the intent of a person claiming a homestead exemption to establish a permanent residence in the state: 

(1) formal declarations of applicant; [Note: this is one reason that it is so important to make your homestead declaration claim]
(2) informal statements of applicant; 
(3) the place of employment of the applicant; 
(4) the previous permanent residency of the applicant in a state other than Florida, or in another country and the date the non-Florida residency was terminated; 
(5) the place where the applicant is registered to vote; [Registration for voting is not a prerequisite to obtaining a homestead exemption. [1953-54 Op.Atty.Gen. 69]
(6) the place of issuance of a driver's license to the applicant; 
(7) the place of issuance of a license tag on any motor vehicle owned by the applicant; 
(8) the address as listed on federal income tax returns filed by the applicant; and 
(9) the previous filing of Florida intangible tax returns by the applicant.

Observations and Case Law: Any one factor is not conclusive of the establishment or nonestablishment of permanent residence. [FS § 196.015] Registration for voting is not, however, a prerequisite to obtaining a homestead exemption. [1953-54 Atty Gen Op 69] An applicant for Florida's homestead tax exemption is not required to be a citizen nor to have purchased Florida license plates for his or her motor vehicles nor to have registered to vote in the county in which the homestead property is located in order to qualify for the homestead tax exemption. Such facts may be looked to by the assessor in making his or her determination of whether the applicant has established his or her "permanent residence" on its property, but the presence or absence of such facts is not conclusive of the establishment or non-establishment of permanent residence. [Op.Atty.Gen., 074- 115, April 10, 1974]

A homestead exemption may be claimed by a nonresident of the state who owns property in the state and maintains thereon the permanent residence of another who is legally or naturally dependent on him. [Op.Atty.Gen., 082-27, April 20, 1982] A property owner who was in good faith making the property his home was entitled to homestead exemption under Constitution, notwithstanding that he was not a United States citizen. [Smith v. Voight, 158 Fla. 366, 28 So.2d 426 (1946)] An Alien in this state with a permanent visa, with no intention to apply for citizenship, is entitled to homestead exemption pursuant to this section. [Op.Atty.Gen., 071-242, Aug. 17, 1971]

Actual physical presence on property on January 1 is not necessary in order to claim homestead tax exemption. [Poppell v. Padrick, App. 2 Dist., 117 So.2d 435 (1959)] Homestead character of a piece of property is not created by, nor is it dependent upon, any general or specific mental intent on part of owner to create or maintain a certain piece of property as his homestead, but arises and attaches from existence of certain facts in combination in place and time; neither is existence of the homestead in any manner dependent on claiming or failing to claim entitlement to an exemption from and valorem taxes that legislature has by this section conferred on persons who in good faith permanently reside on real property in which they have a certain ownership interest. [In re Newman's Estate, App. 5 Dist., 413 So.2d 140 (1982)] 

Under Florida law, resident is entitled to homestead exemption unless it is shown that both the owner and owner's family abandoned the property. [In re Kalynych, Bkrtcy.M.D.Fla.2002, 284 B.R. 149] Once property has acquired status of homestead, such status continues until abandonment has occurred. [Poppell v. Padrick, App. 2 Dist., 117 So.2d 435 (1959)] Although the rule seems to be that an absence from one's homestead for an extended length of time is not of itself an abandonment of the homestead, such an absence may raise a presumption sufficient to cast the burden on the person claiming the homestead exemption to satisfy the tax assessor that there has in fact been no abandonment; such an absence may be taken, together with other evidence tending to show an abandonment, to show an abandonment and no actual intention to return to the property and further maintain it as a homestead. [1958 Op.Atty.Gen. 058-329, 058-229 (Revised), Dec. 10, 1958]

Mere absence for a long period of time is not of itself sufficient to establish abandonment of homestead and deprive it of its character and tax exemption, where claimant never acquires another homestead, and there is no showing that he did not intend to return. [1958 Op.Atty.Gen. 058-229, July 22, 1958] Rule, that temporary absence will not deprive homestead claimant of his right unless it appears that there was a design of permanent abandonment, applies to homestead tax exemption privilege. [Poppell v. Padrick, App. 2 Dist., 117 So.2d 435 (1959)] Mere absence from one's homestead for health, pleasure or business reasons is not of itself an abandonment, but may be considered, in connection with all other available evidence, in determining whether there has been or has not been an abandonment of the homestead. [1958 Op.Atty.Gen. 058-329, 058-229 (Revised), Dec. 10, 1958]

Temporary absence will not deprive homestead of its character and tax exemption. [1958 Op.Atty.Gen. 058-229, July 22, 1958] There must be an intention, either express or implied from facts, to abandon premises as a homestead before owner should be denied homestead exemption from taxation, and a temporary renting of the homestead is not an abandonment thereof, if there is no intention to abandon the premises as a homestead, and no other homestead has been acquired. [1958 Op.Atty.Gen. 058-229, July 22, 1958] 

If, upon investigation, the property appraiser finds that the applicant is entitled to the tax exemption applied for under the law, he or she shall make such entries upon the tax rolls of the county as are necessary to allow the exemption to the applicant. If, after due consideration, the property appraiser finds that the applicant is not entitled under the law to the exemption asked for, he or she shall immediately make out a notice of such disapproval, giving his or her reasons therefor, a copy of which notice must be served upon the applicant by the property appraiser either by personal delivery or by registered mail to the post office address given by the applicant.

The applicant may appeal to the value adjustment board the decision of the property appraiser refusing to allow the exemption for which application was made, and the board shall review the application and evidence presented to the property appraiser upon which the applicant based the claim for exemption and shall hear the applicant in person or by agent on behalf of his or her right to such exemption. The value adjustment board shall reverse the decision of the property appraiser in the cause and grant exemption to the applicant if in its judgment the applicant is entitled thereto or shall affirm the decision of the property appraiser. [Fla. Stat. 196.151, et. seq.]

Opportunity of homeowner to be heard in quasi-judicial proceeding before the Board of Tax Adjustment before denial of his homestead tax exemption met requirements of due process. [Horne v. Markham, 288 So.2d 196 (1973)] The nature and extent of any investigation by the property appraiser concerning the validity of execution and filing of a homestead exemption application or short form renewal card by an agent operating under specific power of attorney are matters that must be administratively determined by the property appraiser pursuant to his express statutory duties to examine and investigate such homestead exemption application form to determine if it complies with Florida Law. [Op.Atty.Gen., 082-99, Dec. 1, 1982]

Since no homestead application could be denied except by final action of the Board of Tax Adjustment, decision of tax assessor disapproving late application was a tentative administrative decision which did not require prior notice or hearing. [Horne v. Markham, 288 So.2d 196 (1973)] Where an application for homestead tax exemption was found to be false and the claimant not entitled thereto, after the same had been allowed, the exemption could be withdrawn and denied by the taxing officials, but the taxpayer should have had an opportunity to be heard upon the question of his claim before the tax assessor and the board of county commissioners in full compliance with antecedent to this section. [1961 Op.Atty.Gen., 061-1, Jan. 1, 1961] 

We advise all homeowners who have been noticed with denial of homestead tax exemption and subsequent threats of back taxes and liens to immediately demand written notification of the denial, and the reason(s) therefore, and contest the lien. We can help. If you would like more free information regarding this issue then please contact us. We will send you the information you need to challenge any denial of the tax exemption and win. In the mean time, heed the warnings above and claim your homestead by declaration!

You can read the full story regarding the Broward County Property Appraiser in the Fort Lauderdale Sun-Sentinel (Sept. 4, 2005) or read  more about the issues at these links:

Homestead cheaters rob millions in taxes

http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20050919/NEWS/509190381/1006/SPORTS

State plans to help counties find tax cheaters

http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20050919/NEWS/50919017/1006/SPORTS

 

Bill Would Help Protect Condo Owners from Liens

 

Article Courtesy of The SUN SENTINEL

By Joe Kollin
Published March 12, 2005

 

Widowed grandmother Selma Feit almost lost her two-bedroom house in Tamarac over a $25 late fee.

Feit's problem -- her homeowner association filed a lien against her property even though the amount owed was so small -- isn't unusual in Florida. That's why Sen. Gary Siplin, D-Orlando, has filed SB 2632, a bill to prohibit condo associations from filing liens and foreclosure suits for anything less than $2,500. The Legislature's annual session began Tuesday and runs through April. The bill will be amended to include homeowner associations.

Rep. Julio Robaina, R-Miami, last year included a similar measure in an overhaul of state condo and homeowner association laws. Although many of his reforms passed, the anti-foreclosure measure failed after being strongly opposed by attorneys who represent associations.

Robaina and Siplin said they will work together this year to get it approved. "There are a lot of condos, not only in South Florida, but throughout the state. This will bring relief to the whole state," Siplin said. Already, however, opposition is mounting. Donna Berger, executive director of Community Association Leadership Lobby, e-mailed the thousands of associations it represents in an attempt to fight it.

"One can only conclude that its intent is to protect deadbeats who do not pay their assessments in a community while punishing the overwhelming majority of owners who do pay their assessments in a timely fashion," said Berger. She said the proposed changes will hurt the ability of associations to do their jobs. But Feit disagrees.

"What right do [associations] have to sue us over $25, and that's $25 for a late fee, not even for the maintenance?" she asked. Feit said that two years ago she slipped her $114 maintenance check into the Cypress Greens Homeowner Association's mail drop on the third of the month. But shortly after the 10th, the treasurer said it hadn't been received.

Feit said she wrote another check but refused to add the $25 late fee. She battled the association, whose its attorney eventually filed a lien and threatened foreclosure. Six months later, the association dropped its case [after hundreds were spent on attorney's fee's]. "As a lawyer, I've had clients sued for small amounts they don't even know about and end up in court," said Siplin. "It's unfair for people to lose their homes for $2,500 or less."

Siplin's bill could also change the law that makes it so lucrative for association attorneys to threaten owners. Now, condo law says that when an owner pays a debt, the money paid first goes to interest owed the association, then to the late fee, then to the attorney, and lastly to the debt. Because the attorney gets money before the association, owners who don't pay the full amount never get out of debt.

Siplin's bill attempts to change that by not allowing any money paid by an owner to go to the association's attorney. It also would eliminate the requirement that the loser in a dispute pay the winner's attorney's fees. "A homeowner or condo owner can owe $2,500 or less, but the attorney's fees might be $5,000 or $10,000 and they want the homeowner to pay, and that ain't right," Siplin said. Berger said it's Siplin's proposal that is wrong. "Lenders and contractors both have the ability to collect and apply payments towards attorney's fees," she said. "Why does this bill attempt to deny that right to community associations?"

 

[NOTE: The bill failed to pass in the Legislature, therefore the Legislature has again failed the citizens of Florida.]

 

 

 

 

 

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