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INTERRA INSIGHT

The Interra Law Firm Insight section is where you'll find basic legal and real estate information. This communication is not provided in the course of and does not create or constitute an attorney-client relationship, is not intended as a solicitation, is not intended to convey or constitute legal advice, and is not a substitute for obtaining legal advice from a qualified attorney.

Breaking Down Condominium and Homeowners Associations

When evaluating whether to purchase a home or a condo that is governed under a Homeowners Association (HOA), it is important to understand and consider some of the many factors that can affect your homeownership experience. Although the “HOA” phrase is often used interchangeably when referring to either an association that governs units in a condo or homes found in a planned development or gated community, there are distinctive differences that legally separate these two property types apart.

Condominium Associations

When trying to distinguish the difference between a condominium or an apartment, you won't find much difference visually. The term condominium when used in legal context, means that an entity such as a person or company owns a condo unit along with a portion of the private land that it sits on and any amenities such as a the pool, gym and clubhouse if present. However, in an apartment, there is a lease signed that allows the rental of a unit for a specific amount of time.

A Condominium Association is a type of homeowners association that oversees units in a condo building. Condominium Associations are made up of members and elected board of directors. The owners of the units in a condo become members of the association the moment they sign to purchase their condo unit and you can only serve on the board of directors if you own a condo unit in the building. However, before you sign, your real estate agent should provide you information on the association's declaration of covenants, conditions and restrictions or just CC&Rs. The CC&Rs are a list of guidelines, rules and regulations set and enforced by the association. For example, your Condominium Association could have a policy on overnight guest parking, where you can lock or store your bicycle, and procedures on how to file a dispute. Typically each year, votes are held to elect members to serve on the board of directors panel.

Living in a condo also means paying Condominium Association fees. The association’s collection of quarterly or annual association fees are used to pay for the upkeep, insurance, and any emergencies that may impact the condo building. An example of an emergency could be for repairs from storm damage. The owner of a condo unit has the right to do as they please to their unit such as remodeling and painting so long as it does not impact the common areas.

Members in a Condominium Association are responsible for the maintenance and upkeep of the condo and common areas. (e.g. pick up trash and keep pool clean) However, Condominium Associations will usually hire a property management company that will contract with outside vendors to provide security, maintain the landscaping and to keep the common areas clean.

Homeowners Association

Homeowner's Associations are usually found in planned developments and gated communities. For example. townhomes constructed in a planned development can be governed by an HOA. HOAs govern single-family homes and the moment you sign the purchase contract, you become a member of the HOA. However, before you decide to purchase, your real estate agent should advise you on the HOAs declaration of covenants, conditions and restrictions or just CC&Rs. The CC&Rs are a list of guidelines, rules and regulations set and enforced by the association. For example, your Homeowners Association could have a policy on the color of paint that you can put on your home or what structures are allowed on your front lawn, and the procedures on how to file a dispute. All members of an HOA are responsible for maintaining the conditions of their home and before making any modifications to the exterior of your home, a homeowner is required to ask for permission from the HOA.

Typically each year, votes are held to elect members to serve on a board of directors panel. The board of directors panel can only consist of voted members. Also, after the Davis-Stirling Act of 1985 was passed into law, it required that associations also have a president, secretary and treasurer. All members in an HOA pay monthly or annual association fees. The fees help to cover expenses associated with the upkeep of the property and to cover any emergency expenses. Some emergencies that may come include covering a liability lawsuit, repairs or an accident.

Members in a Homeowners Association are responsible for the maintenance and upkeep of the common areas. The common areas of an HOA may include sidewalks, the community pool, clubhouse and playground. The common areas all belong to the HOA and any abuse by a member can lead to fines and suspension of use. HOA's will usually hire a property management company to oversee the common areas. The property management company will then hire contractors to handle such responsibilities as maintaining the landscape, providing security and making repairs.

The Purpose of Condominium and Homeowners Associations

Developers of condominium and planned communities establish HOA's partly for marketing and selling. Another reason why a developer creates an HOA is because doing so, makes it easier to transfer ownership on the property once the developer has sold a set amount of units or homes. Once the HOA has been transferred, the financial and legal responsibilities are no longer a worry for the developer, but instead the HOA members.

Condominium Associations and Homeowners Associations are legal entities that carry a lot of legal power. It's the role of the board of directors of an association to enforce the CC&Rs. They can do this by collecting debts from penalties, imposing liens, and pushing HOA members homes into foreclosure for falling behind on paying association fees.

What is an Estoppel and when do you need one?

*The law regarding homeowner association and condominium association estoppels changed drastically, effective July 1, 2017. It is important for owners and investors to know their rights, regarding these important documents.

An estoppel is a legal document that lists the amounts owed against a real property, and other important information an owner or potential owner need to know. This document is legally binding on the Association, and the Association legally waives the right to collect any moneys owed in excess of the amounts specified in the estoppel. It is advisable to obtain an estoppel before purchasing real property governed by an association. However, investors and foreclosure purchasers do not have a right to receive an estoppel prior to purchasing a property at auction. In this situation, it is suggested to get an estoppel immediately upon obtaining the certificate of title to avoid potential penalties on amounts associations claim are due.

Who can demand an Estoppel?

Only an owner, an owner designee, the mortgage company, or a mortgage company designee can demand an estoppel. Florida Statute 718.116(8) for COAs and 720.30851 for HOAs

What is the deadline for an Association to provide an Estoppel?

An association must provide an estoppel “[w]ithin 10 business days after receiving a written or electronic request..” Florida Statute 718.116(8) for COAs and 720.30851 for HOAs

How long is an Estoppel valid for?

An estoppel sent by hand delivery or email is binding on the association for 30 days, and if sent by snail mail or any other method the estoppel is binding for 35 days. Florida Statute 718.116(8)(b) for COAs and 720.30851(2) for HOAs

How much can an Association charge for an Estoppel?

Standard Fee: Associations are allowed to charge a reasonable fee for the preparation and delivery of an estoppel, however it cannot be more than $250 if there is no debt owed on the property. However, if the is any debt on the property, the associations are entitled to collect to collect an additional $100. Florida Statute 718.116(8)(f) for COAs, and 720.30851(6) for HOAs

Expedited Fee: Associations are allowed to charge an expedite fee of an additional $100, but it must be delivered within 3 business days for them to collect the additional fee.Florida Statute 718.116(8)(f) for COAs, and 720.30851(6) for HOAs

Waiver of Fee: If an association receives a request for an estoppel certificate, and fails to deliver it within 10 business days, a fee cannot be charged for the preparation and delivery of the estoppel.Florida Statute 718.116(8)(d) for COAs, and 720.30851(4)

Amended Estoppel Fees Not Allowed: Fee cannot be charged for an amended estoppel.Florida Statute 718.116(8)(b) for COAs, and 720.30851(2) for HOAs

What is required to be in the Estoppel?

Many associations issue incomplete and improper estoppels, and it is important to know what the law requires associations to include in estoppels. Remember, these are legally binding documents, and it is important to assure all the needed information is contained in them. The statutes for HOAs and COAs are identical in their requirements of what must be in an estoppel.

The estoppel certificate must contain all of the following information and must be substantially in the following form:

1. Date of issuance:
2. Name(s) of the unit owner(s) as reflected in the books and records of the association:
3. Unit designation and address:
4. Parking or garage space number, as reflected in the books and records of the association:
5. Attorney’s name and contact information if the account is delinquent and has been turned over to an attorney for collection. No fee may be charged for this information.
6. Fee for the preparation and delivery of the estoppel certificate:
7. Name of the requestor:
8. Assessment information and other information:

ASSESSMENT INFORMATION:

a. The regular periodic assessment levied against the unit is $ per (insert frequency of payment).
b. The regular periodic assessment is paid through (insert date paid through).
c. The next installment of the regular periodic assessment is due (insert due date) in the amount of $.
d. An itemized list of all assessments, special assessments, and other moneys owed on the date of issuance to the association by the unit owner for a specific unit is provided.
e. An itemized list of any additional assessments, special assessments, and other moneys that are scheduled to become due for each day after the date of issuance for the effective period of the estoppel certificate is provided. In calculating the amounts that are scheduled to become due, the association may assume that any delinquent amounts will remain delinquent during the effective period of the estoppel certificate.
f. Is there a capital contribution fee, resale fee, transfer fee, or other fee due? (Yes) / (No). If yes, specify the type and the amount of the fee.
g. Is there any open violation of rule or regulation noticed to the unit owner in the association official records? (Yes) / (No).
h. Do the rules and regulations of the association applicable to the unit require approval by the board of directors of the association for the transfer of the unit? (Yes) / (No). If yes, has the board approved the transfer of the unit? (Yes) / (No).
i. Is there a right of first refusal provided to the members or the association? (Yes) / (No). If yes, have the members or the association exercised that right of first refusal? (Yes) / (No).
j. Provide a list of, and contact information for, all other associations of which the unit is a member.
k. Provide contact information for all insurance maintained by the association.
l. Provide the signature of an officer or authorized agent of the association.

The association, at its option, may include additional information in the estoppel certificate.

Florida Statute 720.30851(1) and 718.116(8)(a).

Disputing an Estoppel

Anytime an association is providing an estoppel, make sure to request the ledger for the property. If there are sums in the estoppel you do not understand, make sure to consult with an attorney as to your rights. Many people assume that if an association is demanding the money, it is legally owed; however, that is not true. Many associations demand sums they are not legally entitled to, and it is up to you to know your rights. If you have any questions feel free to contact us!

Interra Law Firm | A Florida Community Association Attorney

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