Cleaning Up Property Not As Easy As It Looks

Question: I live in a development that is governed by a homeowners’ association. More and more, we are seeing owners “walk away” from properties they can no longer afford due to the poor economy. This leaves a void as to who is to care for their properties in their absence. Many times, the properties fall into disrepair, which causes potential buyers to think twice about purchasing in our community. Other owners are generally careful to maintain their properties, but it is those few abandoned properties that are scaring away potential buyers, and as a result, property values within our community have plummeted. Our association is considering taking on the task of fixing some of these abandoned properties to preserve property values and to make the community more attractive to potential buyers. Can we do that? M.D. (via e-mail)

Answer: You indicate that your community is a homeowners’ association, presumably governed by Chapter 720 of the Florida Statutes, also commonly (although not officially) referred to as the Florida Homeowners’ Association Act. If that is the case, then the answer to your question will depend on what your governing documents say. Unlike the Florida Condominium Act, Chapter 718 of the Florida Statutes, which grants a condominium association the irrevocable right of access to each unit during reasonable hours for maintenance purposes, the Florida Homeowners’ Association Act does not expressly authorize a homeowners association to access an owner’s lot, let alone to make repairs where the owner fails to do so. Thus, the authority to do so must be contained in the governing documents. Especially with more modern, well drafted documents, you will often find a clause in your documents which says that when the homeowners fail to maintain their property, the association is authorized to enter the premises and make repairs at the owner’s expense, after reasonable notice has been provided to the owner. Of course, what is “reasonable” will depend on the circumstances. Unfortunately, your situation is far from unique in today’s economic climate. Owners in dire financial straits often do not make their mortgage payments.

The bank will eventually initiate foreclosure proceedings. Under these circumstances, the owner may feel there is no way to salvage their interest in the property, or it is just not worth it for them, and they simply “disappear.” In many cases, it is difficult for the association to ascertain the whereabouts of owners who have abandoned their properties, and thus notify the owner of the association’s intent to access the property and make repairs. Still, the association must make a reasonable effort to fulfill the notice requirement. Where there is a mortgage and the bank has initiated foreclosure proceedings, it may also be appropriate to notify the bank of the situation. Banks are often unaware of the circumstances and upon being notified, may send someone out to maintain the property, since they have a substantial economic interest in it, and are usually conferred the right to do so by their mortgage agreement, or may seek court permission to do so. Other times, the banks are not equipped to have someone look after foreclosed properties, or they just do not believe it is worth the investment. If your association is considering the task of caring for “abandoned” properties (if authorized by your governing documents), please be aware that there may not be a way to recover the expenses incurred.

A property owner who is unable to make mortgage payments, or carry out any other financial obligations (such as paying assessments to the association), is also likely unable to pay the cost of repairs on their “abandoned” property. I would recommend consulting with the association’s legal counsel to verify whether the association has the authority to enter the property and make necessary repairs. Your attorney should also advise whether this is a proper expenditure of association funds, especially if the prospects of ultimately recovering the money spent are dim. Entering else’s property without proper legal authority may give rise to a trespass claim, notwithstanding the laudable intention of preserving the property values in your community.

Fixing Abandoned HouseProperty Maintenance