The Ruggieri Law Firm - Newsletter

SPRING NEWSLETTER

Dear Business Partner: Spring is a time of growth and I am pleased and grateful to announce that The Ruggieri Law Firm, P.A. is growing quickly. I want to express my sincerest thanks to all of you for the support. I am pleased and excited to announce the addition of Tracy Durham to our team. As many of you know, Tracy is an accomplished Community Association Manager who has always had a keen interest in the law. Tracy will be our Director of Operations, a fancy phrase for “anything and everything” that needs to get done! She will be assisting me with collections, taking on administration such as banking, and bringing her unique ability to network and market the firm to our team.

I also wanted to take the opportunity to update you on some recent developments in the law affecting Community Associations. The first article is a discussion regarding the growing tendency and willingness that banks have to dispute not just their liability for assessments that accrued before they took title in their foreclosure, but also the safe harbor amounts. Associations and their law firms may be exposed to significant liability for both damages and attorney’s fees and costs should erroneous demands be made upon a bank for delinquent assessments or the safe harbor amounts. My second article addresses an appellate decision from 2012 that may have a significant impact on covenant enforcement.

The instances in which this case has been raised as a defense by homeowners has only increased since the decision was first released in 2012.

Continued success to you as we approach the Summer and be sure to call us with any of your legal needs.

BE CAREFUL WHAT YOU ASK FOR ON PAGE 2 →

IS SELF-HELP MANDATORY? ON PAGE 3 →

Frank A. Ruggieri The Ruggieri Law Firm, P.A.

Be Careful What You Ask For

BY FRANK A. RUGGIERI

IN

July of 2010, the Florida legislature modified

Several appellate decisions have been issued indicating

both Chapters 718 and 720, altering a

that the 2010 change to the Statute cannot be applied to

bank’s liability for assessments when they take title

mortgages which existed and were written prior to the

to the property in their foreclosure proceedings or

effective date of the Act (July 1, 2010).

by obtaining a deed from the homeowner in lieu

Some associations have taken a “it can’t hurt to ask”

of foreclosure. Effective July 1, 2010, banks which

approach and have either demanded all of the delinquent

have issued a purchase money mortgage on either a

assessments that accrued prior to the time that the bank

condominium unit or a single family residence are

took title or the safe harbor amount of twelve (12) months or

limited to paying twelve (12) months of assessments

one percent (1%) from banks whose mortgages were written

or one percent (1%) of the face value of the mortgage,

prior to the effective date of the Statute.

whichever is less.

The Condominium Act was

The Federal Fair Debt Practices Act prohibits attempts

amended in 1992 in a similar fashion, limiting

to collect improper amounts from a debtor, can trigger

a bank’s liability to six (6) months’ worth of

liability for punitive damages, and entitles the debtor to

assessments or one percent (1%) of the face value

recover their attorney’s fees and costs incurred in connection

of the mortgage, whichever is less. Banks were

with a violation of the Act. It has been increasingly common

quick to challenge the statutory change and were

for banks to seek a Declaration of their rights, challenging

successful in doing so.

the Association’s attempts to collect pre-certificate of title

Our

State’s

the

assessments or the safe harbor amount. They are likewise

applied

requesting an award of their attorney’s fees and costs pursuant

retroactively to modify a contractual right that

to the Declaration and State Statute. I have also witnessed

existed on the date the Statute was adopted.

banks challenge associations when they voluntarily paid the

The banks argued that, because their mortgages

amount, seeking a refund of those monies. Consequently,

were written prior to the 1992 change to the

in a situation where a bank has voluntarily paid, this doesn’t

adoption

of

Constitution

legislation

prohibits

which

is

Condominium Act, the Statute could not be

mean “the case is closed.”

applied retroactively to make them liable for

In summary, caution should be used in making demand

assessments which they were not previously

upon banks whose mortgages were written before July 1 of

required to pay. I knew it was a matter of

2010. Consult your legal counsel regarding a bank’s liability

time before banks would challenge the

in a particular circumstance and be certain that you are

2010 changes to the Statute.

demanding the correct amounts.

Ask the Attorney HAVE A LEGAL QUESTION? NEED AN ATTORNEY? DON’T KNOW WHAT TO DO? Then ask the attorney! The Ruggieri Law Firm is pleased to announce this new feature to our quarterly newsletter. You can now submit general questions regarding Community Association Law via our facebook page or website under the “Ask the Attorney” tab and select questions will be answered in our next newsletter. The Ruggieri Law Firm is here to assist and educate you in effectively managing your community. So don’t wait...ask the attorney today!

Is Self-Help Mandatory?

BY FRANK A. RUGGIERI

IN

January 2012, the Florida Second District Court of

if necessary, fix the violation, and lien the property to recover

Appeals issued an opinion titled Alorda v. Sutton Place

the costs incurred.

Based upon the Second District Court of

Homeowners Association, Inc., 82 So. 3d 1077 (Fla. App. 2nd

Appeals’ decision, are homeowners associations always required

DCA 2012). The homeowners association filed suit against the

to exercise self-help, as opposed to filing a lawsuit to compel the

homeowner seeking an injunction ordering the homeowner to

homeowner to cure the violation? I have always counseled my

obtain insurance as required by the terms of the Declaration. The

community association clients not to exercise self-help by going

homeowner ultimately purchased the insurance while the lawsuit

onto a homeowner’s lot unless the property is vacant. I believe

was pending. Consistent with applicable caselaw, the association

that going onto a homeowner’s property to mow the lawn or cure

was deemed the prevailing party for purposes of attorney’s fees and costs and a judgment was entered against the homeowners for the attorney’s fees and costs incurred by the Association. The homeowner appealed and the Second District Court of Appeals

“Consult your Association’s counsel before taking action to enforce your restrictive covenants.”

overturned the trial court’s ruling, holding that the association’s lawsuit should have been dismissed, and further ruled that the

any other maintenance violation can lead to confrontations and

Association was therefore not the prevailing party.

other liability concerns. This is despite the fact that self-help

In order for a party in a lawsuit to obtain an injunction or

provisions universally contain language which specifically allows

injunctive relief, one of the items it must establish is that it has

the association to go onto the homeowner’s property to cure the

no adequate remedy at law. Injunctive relief is deemed to be

violation and that this is not deemed a trespass.

an “equitable remedy” which differs from a legal remedy. The

This argument has been raised as a defense on behalf of

homeowner argued that the association had an adequate remedy

homeowners on several occasions in cases which I have litigated,

at law, namely the right under the Declaration to purchase the

and I see no indication that this trend will slow. Despite the

insurance where a homeowner fails to do so, and to lien and

Second District Court of Appeals’ decision, the Firm continues to

foreclose if necessary if the homeowner fails to pay.

recommend to its community association clients that self-help not

The Second District Court of Appeals has created a dangerous precedent with their decision.

Most, if not all, Declarations

allow the Association to enter onto a homeowner’s property

be exercised unless the property is vacant.

As always, consult your Association’s counsel before taking action to enforce your restrictive covenants.

“Devoted to the Personalized Representation of Community Associations”

ORLANDO OFFICE

MELBOURNE OFFICE

390 North Orange Avenue Suite 2300 Orlando, FL 32801

6767 N. Wickham Road Suite 401-5 Melbourne, FL 32940

P (407) 395-4766 F (407) 730-3584

P (321) 241-4770 F (321) 241-4771 www. r u ggier ilawfir m .co m