a word about Homeowner's Associations
UNDERLINED TEXTS ARE HYPERLINKS
CURRENT RULES AND REGULATIONS...
DELIBERATE SEIZURE AND DENIAL OF INDIVIDUAL PROPERTY RIGHTS?
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.
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.
Word About Homestead Tax Exemption
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.
FORECLOSURE RATE APPROACHES ITS PEAK SINCE THE GREAT DEPRESSION
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
and also thinking of leaving
. 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
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
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.
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.
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.
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
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.
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.
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
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 -
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
of ills as the five-year housing boom comes crashing down: creeping
mortgage costs, soaring
premiums, rising property taxes, stagnant home prices and a growing
inventory of houses for
Meanwhile, Florida's foreclosure activity surged to its highest
level all year as a statewide housing slump
hold, making Florida foreclosures last month the third-highest in
In Palm Beach County, 2,241 homes entered some state of foreclosure
in August, a 226 percent increase
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
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
and a jump of more than 50 percent over the previous month,
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,
foreclosures in Florida represented a 62 percent increase over
August 2005, when 10,175 homes
foreclosure, the report shows.
Today's foreclosure report comes on the heels of a Business Week
investigation published in the current
that shows 24 percent of all purchase and refinance mortgages in
Palm Beach County are "option
or option adjustable-rate mortgages.
Only pricey Naples has a higher percentage of such mortgages, which
Business Week calls the riskiest
product ever created.
"The homeowner at risk of losing his or her home through
default or foreclosure is most likely someone
opted for an option adjustable rate mortgage, or no-money-down loan
product, any time after the
of 2004," said Wanda Alexander, chief executive of Horizon
Consulting of Falls Church, Va., and
member of the Foreclosure Economic Advisory Council.
In the Treasure Coast, the foreclosure rate for August was
considerably less dire. In Martin County, one
every 1,091 homes entered some stage of foreclosure last month, on
par with the national rate of
in every 1,003 homes.
Sixty Martin County properties entered some stage of foreclosure in
August, according to RealtyTrac,
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
homes entering the process in August, the 12th highest rate in the
RealtyTrac reports include all three stages of foreclosure:
pre-foreclosure (notice of default and lis
foreclosure (notice of trustee sale and notice of foreclosure sale);
(properties that have been foreclosed on and repurchased by the
Also, the delinquency rate for mortgage loans on one- to four-unit
homes in Florida stood at 3.6
for the second quarter, the Mortgage Bankers Association said.
Nationwide, the rate was
percent, down 2 basis points from the first quarter and up 5 basis
points from a year ago.
HOA SECURITY MYTH
May 31, 2004
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!
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.
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
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.
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
State of Florida empowered the association board of directors to
enforce that covenants.
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
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.
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.
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?
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
you ran your credit card bill in the thousands of dollars, the
credit card company couldn’t take your house away to get paid.
you had bypass surgery and couldn’t pay, they can’t take
your house either.
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.
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!
City At It Again...Commission Destroys Property Rights
Courtesy of John Sims
Published May 20, 2005
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)
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.
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
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
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?
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.
Robert A. Butterworth
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.
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.
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.
STATUTE CHAPTER 162
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!
a Home Isn't Safe - Foreclosure in Florida
Courtesy of The Ledger
Published January 22, 2005
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.
- Small debt can spiral into loss of home
Courtesy of The Miami Herald
Published January 9, 2005
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.
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.
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).
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
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.
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.
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.
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
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.
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,''
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.
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.
-- Liens filed for cable TV debts
Courtesy of The MIAMI HERALD
Posted on Sunday, January 2, 2005
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.
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.
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.
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
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.
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.
filed against community upstages couple's home
Courtesy of The Palm Beach Post
Posted on Saturday, December 18, 2004
what could have been a nightmarish house move, Brock and Carrie
Wagner figured, this one was going to be a snap.
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.
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.
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.
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.
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.
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.
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
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
like we're going to have to sue, sue, sue," he said. Ah
yes...more lawyers fees.
LAWSUITS...ONE REASON LAWSUITS COST EVERY FAMILY IN FLORIDA OVER
$3300 A YEAR!
tosses foreclosure on West Boca condo that began with 78-cent
Courtesy of The Sun Sentinel
Posted July 22 2004
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
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,"
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.
delinquency costs woman her home
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.
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.
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.
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.
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
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.
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
property foreclosed over $63.50 fee
Homeowner says she was
neither billed nor notified of assessment
Courtesy of the Ocala Star Banner
By MONICA BRYANT
Published February 27. 2004
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.
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.
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.
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.
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.
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.
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.
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
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."
Supreme Court Ruling Stirs Controversy Regarding Eminent Domain
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
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.
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.
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
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
Consumer Debt At An All Time High
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.
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
, told about 100 invited guests of
the First National Bank and Trust Company that
'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."
1929, Kasriel said, in all but a few years
households ran a surplus, meaning
the typical family spent less than it earned. The trend began to
change in the 1990s and, since 1999,
households have operated each year
at a growing deficit. In fact,
citizens are spending $1.04 for
every dollar they earn, he said." Households are just not
saving," Kasriel said. The debt in
is largely being financed by
foreign central banks investing in
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
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.
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.
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, "
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."
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.
Property Appraiser Accuses Homesteaders of Fraud and Losses of Over
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.
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."
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.
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
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
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.
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?
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
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."
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
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
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.
more about how to fight the denial of a homestead tax exemption here
Your Homestead Exemption Legal?
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
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
* 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
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.
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:
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
(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
(9) the previous filing of Florida intangible tax returns by the
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
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,
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]
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
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!
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:
cheaters rob millions in taxes
plans to help counties find tax cheaters
Would Help Protect Condo Owners from Liens
Courtesy of The SUN SENTINEL
Published March 12, 2005
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
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
"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
The bill failed to pass in the Legislature, therefore the
Legislature has again failed the citizens of Florida.]
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