2018 May

Owners--including board members-- would be wise to re-read the revitalized covenants regarding liens and foreclosures. 

NOWHERE in the Covenants does it state that SLohA has authority to file liens and foreclose on owner parcels that fail to pay assessments. 

Indeed, You might recall the Board's attempt to gain "lien and foreclosure" authority by proposing a stealth run-on sentence blended with another unrelated covenant on a 2014 ballot.  Such an authority would contain this language, if present in a Declaration of Covenants:


The attempt to ADD this covenant to an existing covenant--and parsing it as an "amendment"-- should be a cautionary and instructive message to owners.  Fortunately, Owners detected a very bad smell and defeated the ballot proposal.  Any Owner who is affected by a threat  ("intent") to lien and foreclose their property should remember this ruse perpetrated by the SLohA attorneys' recommendation to the Board at the time! 


Additionally, SLohA has admitted to the Florida Courts  (April 2017) that it does not have lien and foreclosure authority for failure to pay assessments:


Ordinarily, if such lien powers exist, it would be because a homeowners association has been granted such authority to lien parcels for unpaid assessments by the community’s original declaration of covenants and restrictions, since such declarations constitute contracts under Florida law.

In fact, the word “lien” is nowhere found in the original declaration.   There is no such declaration or shareholders or members agreement among SLohA “governing documents” which “authorize” such liens. 

SLohA attempts to assert "authority" to lien and foreclose by the Articles of Incorporation.  Articles of Incorporation is a subserviant internal document of a corporation.  It is not a contract between the shareholders or members of that corporation.  Since only “contracts” can authorize liens, the only governing documents which could legally “authorize” a lien for unpaid assessments would be the original (as revitalized) declaration and a shareholders or members agreement.

Additionally, Florida statutes DEFER to the governing documents:


The Polk County Tax Collector CAN put a Tax Certificate Lien on an owner parcel and seize the asset in pursuit of an unpaid tax obligation.

SLohA CAN attempt to collect past due assessments and failing that, get a "bad debt" money judgement against the parcel owner.

SLohA CANNOT execute a judgement against a homesteaded property and it is very difficult and expensive to seize real estate to satisfy a money judgement.

So what does all this mean for owners? MORE LEGAL FEES and possibly countersuits by owners for unauthorized liens and foreclosures against parcels.