Buying a home with a Florida HOA is like running through a dark house. There may be hidden obstacles … and they can hurt. One obstacle is determining what you may need to pay off the previous owner’s Home Owners Association (HOA) debts.
Always ask if there is an HOA
In Florida, it’s almost impossible to live in a new neighborhood that is not governed by an HOA. Get copies of the restrictions. Ask if the previous owner has paid all the HOA dues. Usually, the realtor will get an estoppel letter from the HOA which states how much is owed. Read through that letter. There may be fees that are not your responsibility.
Here are some past legal decisions for the new homeowner.
What past HOA amounts are due?
In Florida, Section 720.3085(2)(b) of the Florida statutes provides help. “A parcel owner is jointly and severally liable with the previous parcel owner for all unpaid assessments that came due up to the time of transfer of title.” You are liable. But look at that statement carefully. It says the new owner has to pay for all past unpaid assessments – only. The statute is clear, it is only the assessments. It does not include late fees, attorney’s fees, or interest. If the HOA gives you a bill, have them itemize the charges and mark through everything that is not an assessment.
Statutes Say What They Mean and Mean What They Say
This issue has not been decided directly, but it is comparable to a 2016 case involving a bank mortgage. The defendant’s liability was limited to assessments only and did not include attorney’s fees, costs, interest, or other charges. See the case Catalina W. Homeowners Ass’n, Inc. v. Fed. Nat’l Mortg. Ass’n, 3D15-271 (Fla. 3rd DCA, 2016) which held that given the unambiguous language of the statute, the Court must conclude that if the Legislature intended to include attorney’s fees, costs, interest, or other charges as part of the first mortgagee’s liability, it would have included any one or more of those items in the statute.
The point of law that states a statute says what it says and nothing more was previously articulated in Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976). “It is, of course, a general principle of statutory construction that the mention of one thing implies the exclusion of another; expressio unius est exclusio alterius. Hence, where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned.“
A more recent case was Haskins v. City of Ft. Lauderdale, 898 So. 2d 1120, 1123 (Fla. 4th DCA 2005) where the Court stated that a “basic canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.‘”
What if the HOA had Title to the Property Before Purchase?
If the HOA had title to the property during the intervening period between the previous owner and the current purchaser, the new buyer is not required to pay for the period of time the HOA owned the property. Section 720.3085(2)(b), of the Florida Statutes, states “The present parcel owner’s liability for unpaid assessments is limited to any unpaid assessments that accrued before the association acquired title to the delinquent property through foreclosure or by deed in lieu of foreclosure.” The HOA cannot charge itself assessments while it has title to the property.
Now here is a twist to consider
What if the HOA took possession of the property by a foreclosure sale? Soon after, it was found the HOA had made a mistake. Among other issues, the HOA had failed to properly serve the homeowner any notices or the lawsuit. The foreclosure action and sale are invalidated. Yet, the HOA did have title to the property for several months.
Once the original owner obtained the title back, the statutes mentioned above kick in. The Courts have determined it is irrelevant the current property owner was the original property owner. Look at Lunohah Invs., LLC. v. Gaskell, 158 So.3d 619 (Fla. 5th DCA, 2013) which stated that “Section 720.3085(2)(b) … is a more general statute that purports to impose liability on any grantee for unpaid assessments, without specific reference to the manner by which the grantee acquires title“.
Florida HOAs have a lot of power in this state. Because they have a lot of power, they also have a lot of responsibility to follow proper procedures. There are management companies that do not know the rules and law firms that feed on homeowners in HOAs. Pay your HOA fees when they are due. It is cheaper to pay now and argue to get it back then pay up to 18% interest, plus the attorney’s fees, and then find you did not have a winning case.
If you have truly been wronged by an HOA, seek the advice of an attorney.