Legal Question in Real Estate Law in Florida

I am on the Board of a small condo building in Florida (around 25 units).

We have an owner who has missed several association payments, and the Board

is debating a course of action. One option is foreclosure, but the bank

holding his mortgage has already initiated that process and they take

priority over us. He had a renter in the unit, so the second course of

action was to garnish the rental payments under a new Florida law which took

effect in July. We tried doing that and succeeded in getting one month's

rental payment, but then the renter moved out (coincidentally, his lease had

expired and he didn't renew) and the unit is now empty. (And in light of

the new law, the owner has little incentive to rent the unit out again since

we will just grab the payments).

So now we are considering making a change to our documents to permit the

Association to rent out the empty unit on our own and keep the rental

payments until they are enough to cover the Owner's debt to us. I'm

concerned about the constitutionality of such a change under Florida Law,

and there is also the issue of whether we could apply such a change

retroactively to an owner who bought his unit before the rule was put into

effect.

Any thoughts on this?


Asked on 7/16/10, 12:57 pm

1 Answer from Attorneys
Richard Kaplan

There is no authority I am aware of that would allow you to unilaterially do a taking of private property. You could be guilty of criminal trespass if you tried.

A better solution I have seen is for an association to buy out an owner's interest for a minimal amount, without assuming the mortgage in default. Then you rent it for what you can and kept the rent. At least you are renting it as the owner, though in violation of the mortgage. Of course it is already in default and foreclosure so what difference does it make?

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Answered on 7/16/10, 5:37 pm


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