Cancellation of Cable Contracts made by Developers

My thanks to Terry Delahunty, a law school classmate of mine for the following. Go Gators!

NEW APPELLATE DECISION AFFECTING DEVELOPERS OF CONDOS

AND CONDO ASSOCIATIONS

An important Florida Appellate Court decision was issued Wednesday upholding the ability of a condominium association to terminate a cable agreement entered by the developer prior to turnover. Several trial courts have previously held that a condo association could use Section 718.302, Florida Statutes, to terminate a cable agreement entered by the developer prior to turnover of the condominium association to residents. Section 718.302, provides in pertinent part: "any contract made by an association prior to assumption of control of the association by unit owners other than the developer, that provides for the operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium shall be fair and reasonable, and such grant, reservation, or contract may be cancelled by unit owners other than the developer: (a) ... by concurrence of the owners of not less than 75% of the voting interests other than the voting interests owned by the developer..."

In Comcast of Florida, L.P. vs. L'Ambiance Beach Condominium Association, Inc., No. 4D08-2326 (FL 4th DCA August 26, 2009), the District Court of Appeals for the Fourth District affirmed a Broward County Court decision finding that a condominium association could rely on Section 718.302 to terminate a cable agreement entered by the developer prior to turnover upon more than 75% of the unit owners voting to cancel the agreement. Comcast had argued that cable agreements are not for the "operation, maintenance, or management" of the association or property serving the unit owners and thus, 718.302 did not apply. Comcast also argued that Section 718.115(d), which provides expressly for terminating cable agreements at the next regular or special meeting after they are entered, should apply. The court rejected Comcast's arguments.

It is our understanding that this is the first appellate court decision in Florida upholding this application of Section 718.302, and thus, becomes a stronger state-wide precedent. Based on this decision, many condo associations will most likely try to get out of many current cable TV agreements, and cable operators and

developers may change their form agreements and business practices relating to entering into such agreements.

Foot dragging by foreclosing lenders

This emphasizes my mantra to act quickly, always, but even more so now....

Postponing the Day of Reckoning

By Kate Berry, American Banker

August 26, 2009

Pick up just about any city's newspaper or turn on any news show, and if the topic is real estate, the banking industry is likely being lambasted for foreclosing on troubled homeowners.

But industry data and anecdotal evidence suggest banks and servicers have been dragging out the process – not rushing to kick people out of their homes.

Granted, the deferrals may not be motivated by compassion, or even political pressure. Rather, banks and mortgage investors want to avoid repossessing hundreds of thousands of homes, which would produce losses and hits to capital.

"The goal is to hold off on foreclosures and take losses as slowly as possible to keep balance sheets up," said Deborah Voelz, the chief financial officer of National Asset Direct Inc., a New York buyer and servicer of distressed loans. "Everyone is looking at what the ultimate loss is going to be and whether it makes sense to hold off another year or two and mitigate the results."

The foreclosure process -- and it is a process -- now takes, on average, 18 months to two years, up from 15 months a year ago, according to Amherst Securities Group LP. Backlogs in county courts and at servicing companies, along with local government moratoriums, have contributed to the delays. But plenty of signs indicate that the mortgage companies themselves are in no hurry to seize their collateral.

Rick Sharga, a senior vice president at RealtyTrac Inc., an Irvine, Calif., company that monitors foreclosure filings, said banks often start proceedings but then decide "they don't want the property" and suspend the process indefinitely.

Of the 2.3 million homes that received foreclosure notices last year, one-third had been repossessed by yearend, according to RealtyTrac.

Banks also "are allowing borrowers to be delinquent for longer and longer periods of time before initiating foreclosures," Sharga said.

Tom Booker, a senior vice president in the default information unit at First American Corp. in Santa Ana, Calif., concurred. "There are borrowers who are six or eight months in default; they may have exhausted their workout options; but they're put on a forbearance plan because it's an interim to a final resolution, which is foreclosure," he said. "Banks don't want to take the losses now."

Bottom Line Secrets on age restricted communities

Paradise or Purgatory? Is a Retirement Community Right for
You?

Andrew D. Blechman
Americans have retired in droves to age-restricted communities ever
since six model homes opened in Sun City, Arizona, in 1960
-- the first such development in the world. Today, as Sun
City plans a 50th anniversary celebration for its more than
40,000 inhabitants, some 1,500 "leisure retirement
communities" have become a way of life for nearly 12
million people.

While age-restricted communities tend to cluster in sunny
states, they're proliferating everywhere. You may be
surprised to learn that 60% of new retirement communities
are being built in the North. Massachusetts, where I live,
contains 150, with about 200 more proposed.

The largest age-restricted (and gated) retirement community
in the world is The Villages in central Florida.
One-and-one-half times the square mileage of Manhattan and
currently housing 70,000, this flock of "villages" lured
former neighbors of mine, the Andersons, several years ago.
In a one-month stay at The Villages, two weeks of which
were spent at their new home, I did my preliminary research
for Leisureville: Adventures in America's Retirement
Utopias, a study of retirement communities around the
country. My goal: To understand the appeal of a unique way
of living that has been luring our elders away.
http://link.bls.bottomlinesecrets.com/r/HQLGBI/260AZ/5R9NB/MSB3H/HD7PC/SN/t/

INDEPENDENCE AND COMMUNITY

The most prominent type of retirement community, and the
one I studied for my book, focuses on recreation. The
amenities are plentiful, with little waiting for a tennis
court or tee time... and a constant influx of new residents
that encourages bonding and creates instant community.

Grown children feel relieved that Mom and Dad are busy and
happy. Some communities contain continuing-care facilities
for residents who become unable to care for themselves.

While these communities vary widely, they share attributes
that say "paradise" to some -- and "purgatory" to others.

A CERTAIN AGE

Designed for those who prefer a child-free environment,
retirement communities address the needs and desires of the
older set. Minimum age requirements -- usually age 55 --
are strictly enforced. At least one member of each
household must be the minimum age or older. (Filling the
house with unrelated roommates is not allowed.) Guests,
including relatives, under age 18 or 19 may visit for only
a predetermined number of days per year.

Pros: Residents relish the novelty of having their needs
treated as a top priority. A child-free environment ensures
more peace and quiet than ordinary neighborhoods provide.
Seniors feel safe surrounded by age peers.

Cons: Grandchildren's visits are limited. They can never
move in, whatever the family situation. People who enjoy
mingling with others of all types and ages might find the
setting too limiting.

RECREATION 24/7, INCLUDING SEX

Golf, tennis, swimming, Bingo, dances and hobby groups
dominate daily activities in leisure-oriented communities.
An active singles scene includes the never married, the
divorced, the previously widowed and those widowed after
moving in. A relaxed social atmosphere with no work
responsibilities tends to encourage sexual freedom. I have
observed that a good number of older gentlemen, and some
women, regularly seek and find sex partners.

Pros: Life can be all play -- a common retirement fantasy.
Tennis courts, swimming pools and gyms aren't overrun by
the young. Recreational facilities are designed for
less-than-perfect eyesight and physiques.

Cons: People who are less focused on sports and hobbies may
feel alienated, as may retirees who derive significant
pleasure from high culture -- opera, theater, classical
music, a superb public library. Widows and widowers who
haven't dated in 50 years and who dismiss the use of
condoms as solely for contraception are unaware that
sexually transmitted infections, including herpes, syphilis
and AIDS, have infiltrated the senior singles scene.

NEW CONSTRUCTION, LOTS OF RULES

Many retirement communities, being built in ever-increasing
numbers, boast that everything is new. The older ones were
built just as fast and not all that well.

Also, home owners must respect many rules ("deed
restrictions").

Examples: Exterior paint colors and even the height of
shrubs may be prescribed... pets limited to two... lawn
ornaments and window air conditioners banned.

Pros: Modern amenities, including plenty of bathrooms and
closets. Homes designed with few stairs and universal
accessibility.

Deed restrictions ensure that neighborhoods remain clean
and neat. Many home owners consider mandatory conformity a
small price to pay for knowing that they'll never see their
neighbors' car on blocks, swing sets in the yard or gnomes
on the lawn.

Cons: Slapdash construction, including modern versions of
old designs built with today's questionable workmanship,
often lacks charm. Each community's success hinges on
perpetual investment and care by the managing owner. You
may never know whether the developer is about to declare
bankruptcy, as some have, leaving behind partially
completed, thinly populated "communities" with houses that
will probably become increasingly difficult to sell.

PRIVATE OWNERSHIP

The communal areas of most recreational retirement
communities -- the golf courses, the downtown, the streets
-- as well as the empty lots and unsold houses are owned by
their builders (or whomever the builders sell them to).
Special zoning arrangements (these communities bring in
lots of tax revenue for local jurisdictions) may permit
community rules to sidestep state and county laws in many
aspects of life.

Pros: Many residents, delighted with their low per-home
property taxes, feel confident that the owners have a
personal stake in meeting community needs.

Cons: Residents trade the ballot box for the suggestion
box. Residents with a gripe plead their cases before a
corporate board, not elected officials. Don't look in the
local paper or at public meetings for discussions of
serious issues.

Expect to live under a form of "taxation without
representation." Through steadily increasing maintenance
fees, the owners can charge residents for, say, new golf
courses and recreation centers.

ADVICE FOR POTENTIAL BUYERS

If age-restricted retirement community living attracts you,
visit several, staying for a while if you can arrange it. I
learned far more during my four weeks with the Andersons
than any official tour could have shown.

Generally, these communities have wonderful recreational
amenities. But is the intellectual spark bright enough for
you? Can you find a group that reads the kinds of books you
like? Other questions to consider...

Where do you want to be in 20 years? How would you feel
about being far from your family and old friends later in
life?

Can you imagine aging happily there? Might you "age in
place" instead, perhaps having your current home
retrofitted?

Will your house purchase be a good investment, bringing
decent value if you sell?

OT but important

To the extent that anybody actually reads my missives, this is an important one, non condo/hoa related..

I am sickened by comparisons of President Obama to Hitler, including a portrait of him with a similar mustache, and other use of Nazi symbols at health care "forums" that trivialize the memory of those who died in the Holocaust.

I am disgusted by the constant use of the use of the term Holocaust except as it related to the attempt of Nazi Germany to extinguish Jewish DNA, as well as others who were so cruelly put to death.

In the weeks leading up to the assassination of Israeli Prime Minister Rabin, many opposed to his policies, solely on the right of the political spectrum, demonstrated with pictures of Rabin with a Hitler moustache, Nazi swastikas, etc., etc. That type of speech encourages people at the fringes of society to conclude that they must "stop" the actor, which lead to his murder. I am deeply afraid of what might happen if the same rhetoric continues here.

One person I discussed this with even commented that Obama is a Socialist, and the Nazis were the "National Socialists" so they are one and the same; what a sap. Nazis were fascists, but the use of the name again dupes to dupes into thinking that this is "Socialism." Some elements of Socialism were present but it was a far cry from what we see in Sweden, but I digress...

I think it's time that we speak out and demand that this vilification stop immediately. This is largely a product of the right wing, and while I am mindful of the people who called President Bush a Nazi, the rhetoric has been ratcheted up to 11.

This type of arguably protected speech under the Constitution puts Jews front and center in the Health Care discussion, like it or not. There is NOTHING that compares to the Holocaust ("Palestinians" compare their treatment under Israeli rule as a "holocaust" if so why are there 2 million of them now and just 250,000 of them in 1948? The Jews of Poland and Europe could have flourished under such treatment!). Why must symbols of the destruction of Jewish society in Europe be used by people in this debate? Shame on you!

Stop it now!

Fair Housing Discrimination-Familial Status

Be careful when dealing with rules concerning children; for example pool rules should not prohibit infants, but instead require "incontinent persons" to wear leakproof pants; if the pool is x deep a rule requirung that anybody less than that number of inches tall must be accompanied by soemone taller than that to avoid familial status discrimination.

From the Community Association Management Insider:

The U.S. Department of Housing and Urban Development (HUD) recently announced that it is charging an Atlanta condominium association, a local real estate company, and its agent with housing discrimination for refusing to sell to families with children.

The Fair Housing Act prohibits a housing provider from discriminating against families with children unless the housing meets certain requirements for housing for older persons.

According to the charge, the agent had advertised a condominium for sale and conditioned the sale to those without children. A fair housing agency then sent testers to inquire about the condo. When a tester told the real estate agent that she had children, the agent allegedly told her that no children were allowed and refused to show her the unit. During HUD’s investigation, the agent admitted that several prospective buyers with children under the age of 14 inquired about the property and she told them about the restriction. The property was eventually sold to a single female without children.

The HUD charges will be heard by a United States Administrative Law Judge unless any party to the charge elects to have the case heard in federal district court. If an administrative law judge finds after a hearing that discrimination has occurred, he or she may award damages to the complainant for its loss as a result of the discrimination. The judge may also order injunctive relief and other equitable relief to deter further discrimination, as well as payment of attorney fees.

AP story on foreclosure crisis in Chicago Tribune

Per the AP, here is another story on the association collection crisis...

Homeowner associations foreclosing on residents behind in their fees

By PAUL J. WEBER | Associated Press

2:30 PM CDT, June 11, 2009

IRVING, Texas (AP) -- Thousands of Americans who have generally kept up with their mortgages are still in danger of losing their homes because they made a fateful trade-off in this shaky economy -- they let their homeowner association dues slide.

Many homeowners are learning to their surprise that condo and neighborhood associations that oversee security patrols, mow lawns, plant flowers and clean the community swimming pool may have the right to foreclose when dues aren't paid. That right is often written into the purchase agreement signed by the homeowner.

Among those who have been threatened with foreclosure is Lacey Pilat, who lost her job catering lavish corporate parties and nearly lost her two-story house in this Dallas suburb.

"Basically, our landscaper was foreclosing on the house," said Steve Pilat, her husband. "That's the way we looked at it."

These foreclosure actions do not necessarily pit neighbor against neighbor. Many homeowner associations have turned the job of collecting member dues over to outside management companies. And to them, it's strictly business, not personal.

Homeowner association boards and their management companies defend the practice, saying maintaining the neighborhood preserves everyone's property values.

"We have compassion for those folks. At the same time, we feel for the rest of the homeowners who are paying their dues," said Andrew Schlegel, executive vice president for Merit Property Management, which manages more than 140,000California homes in community associations.

In California, associations can foreclose only after 12 months of missed fees or $1,800 in back dues.

"No one wants to do this," Schlegel said. "It's only coming up when people are completely obstinate about it."

In fact, most people end up saving their homes. Homeowner association boards -- particularly those that have lost many of their dues-paying members to the housing collapse and the slumping economy -- often work with down-on-their-luck neighbors to come up with some sort of compromise. That's what happened with the Pilats.

Gauging the number of foreclosures nationwide by homeowner association is difficult. But in Texas, foreclosure attempts initiated by homeowner associations in 19 counties are up 30 percent from two years ago, according to Dallas-based Foreclosure Listing Services.

In the San Antonio area alone, foreclosure actions by homeowner associations jumped to 170 in April from 21 in April 2008, according to RexReport.com.

In Florida, attorney Bob Tankel, who represents hundreds of homeowner and condo associations, said he has increased his staff from three to 16 in the past 18 months to handle a mounting caseload of 3,500 open collections. About one-fifth of those cases have reached foreclosure, he said.

In California, Schlegel said more than 6 percent of the homes that his company manages are in some stage of delinquency with regard to membership dues, up from around 1 percent in previous years.

More than 59 million people live in more than 300,000 association-governed communities nationwide, according to the Community Associations Institute, the nation's largest group for homeowners and condo boards.

In many of these foreclosure cases, the homeowner's name is on the mortgage, and the mortgage is held by a bank or other lender. But the purchase agreement says the homeowner association can haul the homeowner into court and begin foreclosure proceedings for nonpayment of dues.

If the house is foreclosed on, it is sold off, and the homeowner association takes what it is owed from the proceeds. Proceeds also go to the bank to pay off the mortgage.

About four months after Pilat lost her job, the management company for the Beacon Hill homeowner association sent her a foreclosure notice in April after several attempts to collect her $450 annual dues, which paid for the mowing of front lawns. The amount she owed snowballed to $1,800 after penalties and fees.

The management company eventually agreed to let the couple pay the debt over time. The Pilats cut a check for $600 in April that drained their checking account but saved the house. They are slowly paying off the $1,200 debt.

Pilat had fallen a little behind on the mortgage, too, but the bank was working with her to keep her house.

The Pilats said their neighbors on the homeowner association board never got involved in the dispute over dues; it was handled by the management company. Neither the company nor the homeowner association returned calls for comment.

The foreclosure actions have renewed long-standing complaints that homeowner associations are often made up of power-drunk residents who enjoy lording it over their neighbors and zealously enforce the rules regarding such things as the height of the grass, the color of the house, the flying of flags and the way the porch is furnished.

"You have a number of them being run like little totalitarian regimes," said Texas state Rep. Burt Solomons, who has unsuccessfully tried passing association reforms for years in the Legislature. "Their argument is that if you don't like it, move."

Near Sacramento, Calif., unemployed state employee Pam Spanier was served with a foreclosure notice after falling more than seven months behind on her $115 monthly dues, which pay for Internet access and a golf-cart security patrol. She owes a total of $2,100, including attorney fees and fines. She is still in her home.

"I'm going to continue to look for a job and hope for a miracle," she said. "If it forecloses, it forecloses."

Collectible Costs and realted matters

We often get requests to pass on management company charges in collection actions; while I am sympathetic to the costs that are incurred, this email with the names modified to protect the guilty sums up the position on the issue quite well...

Hi Jennifer;

Jenny asked me to respond to the inquiry you had regarding the issue of informing you that we cannot collect the $10 per month collection "fee" that #$@&^!@ Management imposes on delinquent accounts. The following is why.

The law says this:

720.3085

(3) Assessments and installments on assessments that are not paid when due bear interest from the due date until paid at the rate provided in the declaration of covenants or the bylaws of the association, which rate may not exceed the rate allowed by law. If no rate is provided in the declaration or bylaws, interest accrues at the rate of 18 percent per year.

(a) If the declaration or bylaws so provide, the association may also charge an administrative late fee in an amount not to exceed the greater of $25 or 5 percent of the amount of each installment that is paid past the due date.

(b) Any payment received by an association and accepted shall be applied first to any interest accrued, then to any administrative late fee, then to any costs and reasonable attorney's fees incurred in collection, and then to the delinquent assessment. This paragraph applies notwithstanding any restrictive endorsement, designation, or instruction placed on or accompanying a payment. A late fee is not subject to the provisions of chapter 687 and is not a fine.

The question then becomes what is a "cost"? I think the Legislature has given us some guidance in section 720.3085 (4) Fl Stat. which says:

(a) Provide the owner with 45 days following the date the notice is deposited in the mail to make payment for all amounts due, including, but not limited to, any attorney's fees and actual costs associated with the preparation and delivery of the written demand.


So here we have the same statute referring to "costs" and "actual costs" and not defining either of them.

For guidance we need to turn to the language of the Fair Debt Collections Practices Act, which states as follows (remember attorneys are "Debt Collectors" as defined in the Act, so this limits us):

§ 1692f. Unfair practices

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

The instrument creating the debt is between %$#@&*! management (or management company and the Association; the debtor is not a party to that obligation. Therefore the amount is only collectible if it is allowed by state law.

"Costs" as they are generally referred to are subject to the Uniform Guidelines as to Cost Awards, promulgated by The Supreme Court. As you can see, very few "costs" that we may consider as being recoverable, such as photocopies, are actually recoverable. In my opinion, the distinction between the reference to "costs" and "actual costs" is crucial. An "actual cost" is a cost imposed in connection with preparation and dissemination of the initial 45 day letter as set forth above. That is a cost we already protect.

However any other charges imposed over and above that which is allowed by state law (as the "actual costs" are) and not part of the agreement between the debtor and creditor are NOT recoverable and subject at least my law firm to an action for violation of the fair Debt Collections Practices Act.

Hope this helps, Bob Tankel