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 homeownerâ¬"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.
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."
â¬SAn unfortunate fact about foreclosure,⬠says Walt
Fricke, president and executive director of the Homeownership
Preservation Foundation, â¬Sis 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 borrowerâ¬"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 Chicagoâ¬"s Home Ownership
Preservation Initiative (HOPI) in January 2004, the Foundationâ¬"s
consumer credit counselors have provided foreclosure prevention
counseling to more than 1,000 homeowners. The free counseling
sessions have been instrumental in the programâ¬"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.
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. Youâ¬"re safe right? Wrong!
What you
donâ¬"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!
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.
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.
FLORIDASTATUTE 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.
By
JEANNETTE RIVERA-LYLES
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.
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!
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.
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."
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.
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 Americais 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, "Americais 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.
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?
Floridastatutes 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 Floridahome 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:
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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