A discussion of routine & complex issues which confront all types of shared ownership communities.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.
This blog covers every topic under the sun related to condominiums, cooperatives, HOAs, timeshares and mobile home communities from the unique perspective of attorney Donna DiMaggio Berger.

Monday, April 23, 2012

The practical realities of suspending use rights in FL condominiums, cooperatives and HOAs

For two years now, condominium, cooperative and homeowners' associations have been able to suspend the common area use rights of delinquent owners (and those owners' occupants, licensees and invitees) after clamoring for such authority in the wake of the foreclosure crisis.

The general consensus was that people who do not pay to maintain the common areas, should not be able to continue enjoying them. The morale of owners who continued to pay their assessments each month or quarter suffered when they saw their non-paying neighbors continuing to use the community facilities. In addition to preserving morale, most folks also see the right to suspend use rights (especially in communities with a plethora of facilities and amenities) as a useful tool to encourage delinquent owners to pay up.

This statutory tool provides as follows:

If a unit owner is delinquent for more than 90 days in paying a monetary obligation due to the association, the association may suspend the right of a unit owner or a unit’s occupant, licensee, or invitee to use common elements, common facilities, or any other association property until the monetary obligation is paid. This subsection does not apply to limited common elements intended to be used only by that unit, common elements that must be used to access the unit, utility services provided to the unit, parking spaces, or elevators.

Two wrinkles have arisen in the years since this language was created. Some associations have gotten overly creative with regard to the type of use that can be suspended. I have heard from frustrated boards that have disallowed deliveries to delinquent owners, thereby requiring these owners to come to the front gate or go to the post office to collect their packages. Some have denied delinquent owners the right to have visitors and convinced cable providers to shut off service to delinquent units while others have required delinquent owners to use the service elevator rather than the resident elevator and, in the most extreme example, one board president announced that he had authorized the removal of the doors on the mailboxes of delinquent owners in his HOA.

If you read the statutory language above carefully, some of these practices are not contemplated therein, some are plainly prohibited and the last example above constitutes a federal crime.

The second issue that has cropped up is that having a statutory right and being able to exercise that right are two entirely different things. Many boards would like to suspend owners from using the Clubhouse or the community pool but are finding that they cannot do so practically. Without a fence and a locking mechanism, it is just not easy to keep people out. Boards who have contacted the police and sought help in keeping the suspended owners or suspended owners' tenants/guests out of the common areas have been told that it is a "civil matter" and the police will not get involved in enforcing the board's rights.

This is where the usual naysayers will jump in and say "We told you so! Those changes were useless." To the contrary, many communities have reported that the ability to suspend use rights has been an extremely effective tool both in terms of deterring potential new deliquencies as well as getting some of the current delinquencies cured. Those communities that have common areas such as pools, clubhouses, tennis courts, etc. and have the ability to practically keep the suspended folks out have been the lucky beneficiaries of this statutory change. Unfortunately, for other communities with few or no amenities and/or without the means to practically enforce suspensions, this change will not be nearly as effective a tool as the ability to demand rent from tenants in delinquent units.


2 comments:

Jean Winters said...

I have seen positive response regarding withdrawing use of amenities. I have had owners much more willing to [pay when they realize they can't use the pool.
Others do not care. In those cases, the association is better collecting rents, if possible, or proceeding with foreclosure.

Mark said...

Can a HOA Board who deems a resident dangerous and has threatened residents and Board Members with getting "hurt" if they don't watch out be suspended from clubhouse/pool as such time there could be a hearing...thus imposing this without a hearing until we can have it. We feel this must be a protection needed now for residents and the Board

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