information and definations for patrick weber from mary jean ziskaFriday, May 25, 2012 10:56 AM
From: “mary jean ziska” <whatabtmary@yahoo.com>To: “patrick weber guardian” <colliercountypg@aol.com>, “larry pivacek guardianship lawyer” <larrypivacek@gmail.com>Cc: “mary jean ziska” <whatabtmary@yahoo.com>
· Definitions of law terms to send to “Patrick weber” the lawyer and guardian for reference since he requested this information :
· As per the court case, where “Patrick weber” told the judge that he was not opposed to and was willing to extend the statute of limitations regarding the HOA not being able to file a foreclosure suit within the one year period. As a lawyer he is not allowed to make changes to laws( ie) statute of limitations and definitely not allowed to wave upon his own merit or decision the statute of limitations for such proceedings.
· Simple definition: A statute of limitations is a defined time period in which a legal action may be taken. The statute of limitations for different types of lawsuits usually begins with awareness of the harm or injury. The length of the statute of limitations depends on the type of case and the jurisdiction (usually the state) in which it is filed.
· If a legal action is not filed within the prescribed time, it cannot be brought, even if the case would otherwise have merit. Common law legal system might have a statute, for example, limiting the time for prosecution of a debt or crimes designated as misdemeanors to two years after the offense occurred. Under such a statute, if a person is discovered to have committed a misdemeanor three years earlier, the time has expired for the person to be prosecuted. While it may seem unfair to forbid prosecution of crimes that law enforcement can later prove to a standard required by law (cf., e.g. beyond a reasonable doubt, clear and convincing evidence, and preponderance of the evidence), the purpose of a statute of limitations or its equivalent is to ensure that the possibility of punishment for an act committed long ago cannot give rise to either a person’s incarceration or the criminal justice system’s activation. In short, unless the crime is deemed exceptionally heinous – for example, murder, to which the statute does not generally apply – social justice as enacted through law says that lesser crimes from long ago are best left alone so as not to detract attention from more serious crimes.
· Reasons for statutes of limitation: One reason is that, over time, evidence can be corrupted or disappear, memories fade, crime scenes are changed, and companies dispose of records. The best time to bring a lawsuit is while the evidence is not lost and as close as possible to the alleged illegal behavior. Another reason is that people want to get on with their lives and not have legal battles from their past come up unexpectedly. The injured party has a responsibility to quickly bring about charges so that the process can begin.
· Limitations periods begin when a cause of action is deemed to have arisen or when a plaintiff had reason to know of the harm, rather than at the time of the original event. This distinction is significant in cases in which an earlier event causes a later harm (e.g. a surgeon negligently operates on a patient, who subsequently suffers the consequences of that negligence years later).
· In a related concept, contracts may also have a term under which they may be the basis of a suit, and after which a plaintiff is held to have waived any right to claim. Under Article VI of the United States Constitution, private contracts cannot be abridged; this provision has been held by the United States Supreme Court to mean that the federal government or a State can only vitiate a contract if it directly opposes an important public policy. Similarly, the Charter of Fundamental Rights, codified into law applicable to European Union countries by the passage civil lawsuit, is said to have accrued when the event beginning its time limitation occurs. Sometimes, it is the event itself that is the subject of the suit or prosecution (such as a crime or personal injury), but it may also be an event such as the discovery of a condition one wishes to redress, such as discovering a defect in a manufactured good, or in the case of controversial “repressed memory” cases where someone discovers memories of childhood sexual abuse long afterwards.
· With respect to the United States as a defendant, suits against the government are generally forbidden without some waiver of sovereign immunity. Since the Spending Clause of the United States Constitution vests only Congress with power to spend money from the public fisc, the Supreme Court has held that only Congress may waive sovereign immunity, and Congress may place limitations on any such waiver. Therefore, statutes of limitation are typically seen as a limitation on the waiver of sovereign immunity, which is jurisdictional in nature. This distinguishes the United States from other parties, in that if the statute of limitations has run, a court has no jurisdiction over a case against the United States. Because the Spending Clause does not give any power to the Executive Branch or the Judicial Branch, officials of agencies in the Executive Branch may not enter into agreements tolling the statute of limitations, and courts may not toll the statute of limitations under equitable tolling principles in claims against the United States.
· Statute of repose: An idea closely related, but not identical, to the statute of limitations is a statute of repose. A statute of repose limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations, which begins running upon accrual of the claim, the period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted. This often applies to buildings and properties, and limits the time during which an action may lie based upon defects or hazards connected to the construction of the building or premises. An example of this would be that if a person is electrocuted by a wiring defect incorporated into a structure in, say, 1990, a state law may allow his heirs to sue only before 1997 in the case of an open (patent) defect, or before 2000 in the case of a hidden defect. Statutes of repose can also apply to manufactured goods. Manufacturers contend they are necessary to avoid unfairness and encourage consumers to maintain their property. Consumer groups argue that statutes of repose on consumer goods provide a disincentive for manufacturers to build durable products and to notify consumers of product defects as the manufacturers become aware of them. Consumer groups also argue that such statutes of repose disproportionately affect poorer people, since they are more likely to own older goods.
· Expiry: Once the time allowed for a case by a statute of
limitations runs out, if a party raises it as a defense and that defense is accepted, any further litigation is foreclosed. However, most jurisdictions provide that limitations are tolled, or delayed, under certain circumstances. Tolling will prevent the time for filing suit from running while the condition exists. Examples of such circumstances are if the aggrieved party (plaintiff) is a minor, or the plaintiff has filed a bankruptcy proceeding. In those instances, in most jurisdictions, the running of limitations is tolled until the circumstance (i.e., the injured party reaches majority in the former or the bankruptcy proceeding is concluded in the latter) no longer exists.
· There may be a number of factors that will affect the tolling of a statute of limitations. In many cases, the discovery of the harm (as in a medical malpractice claim where the fact or the impact of the doctor’s mistake is not immediately apparent) starts the statute running. In some jurisdictions the action is said to have not accrued until the harm is discovered; in others, the action accrues when the malpractice occurs, but an action to redress the harm is tolled until the injured party discovers the harm.
As discussed in Wolk v. Olson, the discovery rule does not apply to mass-media publications such as newspapers and the Internet; the statute of limitations begins to run at the date of publication.
An action to redress a tort committed against a minor is generally tolled in most cases until the child reaches the age of majority. A ten-year-old who is injured in a car accident might therefore be able to bring suit one, two, or three years after he turns 18.
· It may also be inequitable to allow a defendant to use the defense of the running of the limitations period, such as the case of an individual in the position of authority over someone else who intimidates the victim into never reporting the wrongdoing, or where one is led to believe that the other party has agreed to suspend the limitations period during good faith settlement negotiations or due to a fraudulent misrepresentation.
· Generally speaking, in the case of private, civil matters, the limitations period may be shortened or lengthened by agreement of the parties. Under the Uniform Commercial Code, the parties to a contract for sale of goods may reduce the limitations period to not less than one year, but may not extend it.
· Although such limitations periods generally are issues of law, limitations periods known as laches may apply in situations of equity (i.e., a judge will not issue an injunction if the party requesting the injunction waited too long to ask for it). Such periods are not clearly defined and are subject to broad judicial discretion.
· For U.S. military cases, the Uniform Code of Military Justice (UCMJ) states that all charges except for those facing general court martial (where a death sentence could be involved) have a five-year statute of limitation. This statute changes once charges have been prepared against the service member. In all supposed UCMJ violations except for those headed for general court martial, should the charges be dropped, there is a six-month window in which the charges can be reinstated. If those six months have passed and the charges have not been reinstated, the statutes of limitation have run out.
· Prescription: · In civil law countries, almost all lawsuits must be started within a legally determined period. If they are presented after that time, an institution called prescription applies, which prevents them from filing the case.
· The Italian case is quite peculiar in this regard since lawsuits and trials must be ended, rather than started, within such a time limit (this applies only to criminal proceedings). This makes it effectively possible to avoid a guilty sentence by delaying the trial enough for the time limit to expire.
· For criminal cases, this means that the public prosecutor must prosecute within some time limit. The time limit varies from country to country, and increases with seriousness of the alleged crime (for example, in most jurisdictions, there is no statute of limitations for murder). When a time limit is suspended, it does not run (akin to hitting “Stop” on a stopwatch). Common triggers include the defendant being on the run. When a time limit is interrupted, it is restarted (like hitting “Reset” on a stopwatch). This may be triggered by a new crime committed.
· If a criminal is on the run, he can be convicted in absence, in order to prevent prescription, or the time limit does not elapse during that time.
· The prescription must not be confused with the need to prosecute within “a reasonable delay”, an obligation imposed by the European Court of Human Rights. Whether the delay is reasonable or not, will depend on the complexity of the trial and the attitude of the suspect.
· Exclusions:
· Fraud upon the court
· In the United States, when an officer of the court is found to have fraudulently presented facts to court so that the court is impaired in the impartial performance of its legal task, the act, known as “fraud upon the court”, is a crime deemed so severe and fundamentally opposed to the operation of justice that it is not subject to any statute of limitation.
· Officers of the court include: lawyers, judges, referees, and those appointed; guardian ad litem, parenting time expeditors, mediators, rule 114 neutrals, evaluators, administrators, special appointees, and any others whose influence are part of the judicial mechanism.
·
“Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication”. Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23
· In Bullock v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated “Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted.”
· International crimes : By way of custom of international law, genocide, crimes against humanity, and war crimes are usually not subject to statute of limitations, nor to prescription. This custo
m has been codified in a number of multilateral treaties. States that ratify the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity agree to not allow limitations claims for these crimes. Article 29 of the Rome Statute of the International Criminal Court states that genocide, crimes against humanity, and war crimes “shall not be subject to any statute of limitations”.
· [edit] Heinous crimes in the U.S. · Crimes that are considered exceptionally heinous by society have no statute of limitations. As a rule, there is no statute of limitations for murder, especially capital or first-degree murder. However, judges have been known to throw out murder charges for cold cases if they feel the delay violates the defendant’s right to a speedy trial.
· Continuing violations doctrine : · In tort law, if a defendant commits a series of illegal acts against another person, or, in criminal law, if someone commits a continuing crime (like molesting a child over a long period of time, which can be charged as a single offense), the period of limitation may begin to run from the last act in the series. In the 8th Circuit case of Treanor v. MCI Telecommunications, Inc., the court explained that the continuing violations doctrine “tolls [i.e freezes] the statute of limitations in situations where a continuing pattern forms due to [illegal] acts occurring over a period of time, as long as at least one incident … occurred within the limitations period”.[1] However, in the United States, there has been doctrinal confusion in the courts regarding whether or not the continuing violations doctrine applies to particular violations. For example, the continuing violations doctrine has been ruled to apply to copyright infringement per Taylor v. Meirick 712 F.2d 1112, 1119 (7th Cir. 1983), but has been ruled to not apply per Stone v. Williams, 970 F.2d 1043, 1049-50 (2d Cir. 1992).
· HOMEOWNERS Associations information: Homeowner association
· From Wikipedia, the free encyclopedia / Jump to: navigation, search /
· Picture of a condo building undergoing periodic maintenance in Japan. For a discussion of nonprofit, voluntary neighborhood advocacy groups, see neighborhood association.
· A homeowner association is a corporation formed by a real estate developer for the purpose of marketing, managing, and selling of homes and lots in a residential subdivision. It grants the developer privileged voting rights in governing the association, while allowing the developer to exit financial and legal responsibility of the organization, typically by transferring ownership of the association to the homeowners after selling off a predetermined number of lots. It allows a civil municipality to increase its tax base, but without requiring it to provide equal services to all of its citizens. Membership in the homeowners association by a residential buyer is typically a condition of purchase; a buyer isn’t given an option to reject it. Some homeowner associations hire and retain property management companies. The board of directors is responsible for the retention of these companies.
· Most homeowner associations are incorporated, and are subject to state statutes that govern non-profit corporations and homeowner associations. State oversight of homeowner associations is minimal, and mainly takes the form of laws which are inconsistent from state to state. Some states, such as Florida and California, have a large body of homeowner association law, and some states, such as Massachusetts, have virtually no homeowner association law.
· The fastest growing form of housing in the United States today is common-interest developments (CIDs), a category that includes planned-unit developments of single-family homes, condominiums, and cooperative apartments.[1] Since 1964, homeowner associations have become increasingly common in the USA. The Community Associations Institute trade association estimated that HOAs governed 24.8 million American homes and 62 million residents in 2010.[2]
Homeowners associations first emerged in the United States in the mid-19th century. Their growth was limited, however, until the 1960s, when several factors led to a period of rapid national growth, including, a push towards large scale residential development by the Federal Housing Authority and the Urban Land Institute; an increasing cultural preference for architectural uniformity; a decline of readily available land; rising construction costs; and a modification of federal mortgage insurance rules to include cooperatives and condominiums.[citation needed]
· Early covenants and deed restrictions were exclusionary in origin, and in the first half of the 20th century many were racially motivated.[3] For example, a racial covenant in a Seattle, Washington neighborhood stated, “No part of said property hereby conveyed shall ever be used or occupied by any Hebrew or by any person of the Ethiopian, Malay or any Asiatic race.”[4] In 1948, the United States Supreme Court ruled such covenants unenforceable, in Shelley v. Kraemer. However, private contracts kept them alive until The Fair Housing Act of 1968 banned them.
· The explosion in the number of CIDs can be traced back to a publication by the Urban Land Institute in 1964, also known as TB 50.[5] This technical bulletin was funded by the National Association of Home Builders and by certain federal agencies: the FHA, United States Public Health Service, Office of Civil Defense, the Veterans Administration and the Urban Renewal Administration.[6]
· The Federal Housing Administration in 1963 authorized federal home mortgage insurance exclusively for condominiums or for homes in subdivisions where there was a qualifying homeowner association. The rationale was that developers wanted to get around density laws. The effect, however, was to divert investment from multifamily housing and home construction or renovation in the inner cities, speeding a middle-class exodus to the suburbs and into common-interest housing. The federal highways program further facilitated the process.[citation needed] In the 1970s, a growing scarcity of land for suburban development resulted in escalating land costs, prompting developers to increase the density of homes on the land. In order to do this while still retaining a suburban look, they clustered homes around green open areas maintained by associations. These associations provided services that formerly had been provided by municipal agencies funded by property taxes; yet, the residents were still required to pay those taxes. Accordingly, local governments began promoting subdivision development as a means of improving their cash flow.[7]
· Another primary driver in the proliferation of single family homeowners’ associations was the U.S. Clean Water Act of 1977, which required all new real estate developments to detain storm water so that flow to adjoining properties was no greater than the pre-development runoff. This law required nearly all resid
ential developments to construct detention or retention areas to hold excess storm water until it could be released at the pre-development flow level. Since these detention areas serve multiple residences, they are almost always designated as “common” areas, which becomes a reason to create a homeowner association. Although these areas can be placed on an individual homeowner’s lot, eliminating the need for an association, nearly all U.S. municipalities now require these areas to be part of a common area to ensure an entity, rather than an individual or the municipality itself, has maintenance responsibility. Real estate developers, therefore, have established homeowner associations to maintain these federally mandated common areas. With the homeowner association already in place, the developers have expanded their scope to provide other requirements and amenities that they believe will help them sell homes.
[edit] Industry:· Community Associations Institute (CAI) is a trade organization of individuals and businesses that sell supplies or services to homeowners associations, such as lawyers and property managers. The CAI does not represent homeowners associations. It lobbies the legislatures of states that have significant proportions of homeowners living in HOAs to promote legislation beneficial to its members, while opposing laws that would harm its members.[8]
· [edit] Authority: · A homeowners association is incorporated by the developer prior to the initial sale of homes, and the Covenants, Conditions, and Restrictions (CC&Rs) are recorded when the property is subdivided. There is no mutual agreement between buyer and seller regarding the CC&Rs, they are legally defined to “run with the land”. If an owner sells the encumbered land/ home, he ceases to be a member of the association and the new owner is forced to become a member. All members must pay assessments to and abide by the restrictions of the association.[9]
· [edit] Powers: · Associations provide services, regulate activities, levy assessments, and may, as delegated by the states legislature, impose fines. Unlike a municipal government, they are not subject to the constitutional constraints that public government must abide by.[10] Some of the tasks which HOAs carry out would otherwise be required to be performed by local governments. A homeowners’ association can enforce its actions through the threat and levying of fines, and private legal action under civil law.
· Association boards may appoint corporate officers – or officers may be elected directly by the membership (depending on the jurisdiction). The officers and the board may create committees, such as an “architectural control committee”, a pool committee, a neighborhood watch committee, and others.
· Association boards are composed initially of developer-appointed members, then of a mix of appointees and of homeowners elected at the annual meeting to maintain the common areas and enforce the governing documents. The mix changes to solely homeowners as the percentage of land/home ownership shifts away from the developer.
· [edit] Assessments: · Homeowner associations can compel homeowners to pay a share of common expenses, usually per-unit or based on square footage. These expenses generally arise from common property, which varies dramatically depending on the type of association. Some associations are, not quite literally, towns, complete with private roads, street lights, services, utilities, amenities, commonly owned buildings, pools, and even schools. Many condominium associations consider the roofs and exteriors of the structures as the responsibility of the association. Other associations have no common property, but may charge for assumed services or other matters. Assessments paid to homeowner associations in the United States amount to billions of dollars a year, but are not classed as property taxes.[11]
· When determining what the monthly/annual assessment should be, it is important to consider what funds are required. There should always be a minimum of two funds: an operating fund and a reserve fund. The operating fund is used to pay for the operating expenses of the association. A reserve fund is used to pay for the infrequent and expensive common area assets maintenance, repair and replacement costs. The reserve fund is significant when reducing the chances of a special assessment (mentioned in the risks below). Obtaining a Reserve Study is recommended to help determine and set the reserve contribution rate which is included in the regular monthly assessment.
· [edit] Benefits: · An HOA provides people with shared neighborhood values, an opportunity to enforce regulations, consistent with overarching statutory constraints, to achieve a community representative of such values. In doing so, an HOA inherently restricts the rights that would otherwise exist for its members based on municipal codes. For instance, a degree of conformity is often required in exterior appearance of single family homes and there are often time limits and/or restrictions to activities generating noise.
· These bylaws can be limited in various degrees by state laws, with some overriding federal judicial or statutory limits. Board members or officers are elected by the homeowners, with the ability in some states for the membership to remove board members, with some difficulty, even during term.
· Homeowners Associations generally have meetings for the entire board and membership. These meetings are generally monthly or sometimes quarterly, and focus on handling the Homeowners Association’s business. In some states, the meeting’s minutes must by law be made available for viewing 24 hours a day online, requiring the HOA to launch or purchase a website.
Many homeowners’ associations include management of a development’s recreational amenities, maintained for exclusive use of its members. This can allow an individual homeowner access to a maintained pool, clubhouse, gym, tennis court or walking trail that they may not be able to otherwise afford to maintain on their own.
· Each member of a homeowners’ association pays assessments that are used to cover the expenses of the development. Some examples are landscaping for the common areas, maintenance and upkeep of the subdivision’s amenities, insurance for commonly owned structures and areas, mailing costs for newsletters and other correspondence, employment of a management company or on-site manager, security personnel and gate maintenance, and any other item delineated in the governing documents or agreed to by the board of directors.
· Some residents rate their overall experience living in a common interest development as good. A survey of 709 people by Zogby International, sponsored by the Foundation for Community Association Research, an organization created by the Community Associations Institute trade association, showed
that for every homeowner who rated the overall experience of living in a homeowner association as negative, seven saw it as positive.[12][13]
· But another survey, conducted by a home improvement trade organization vendor, of over 3,000 people found that two-thirds found their HOAs were “annoying” or worse.[14] 25% of those who responded had never lived in an HOA, 19% had been in a “war” with their HOA, and the remaining 56% had never had a conflict or resolved it quickly / considered it no big deal. 54% of the respondents said they would rather live with a sloppy neighbor than deal with an HOA. 24% responded positively about an HOA, and 45% responded positively or felt the HOA was a minor nuisance.
· Advocates often maintain that people choose to live in HOAs, but some note that “choice” is misleading. HOAs have been mandated by municipalities for decades either directly or indirectly. This is often accomplished by conditioning plat or other approval on the creation of amenities such as roads, open areas, greenbelts, retention basins, etc. and an obligation to maintain them. In towns where such regulations exist, people who wish to purchase a home often have no choice but to live in an HOA. Whether non-HOA neighborhoods that were built in the last several decades exist depends on the location. The choice for most buyers seeking a newer home is only which HOA they will join.
· The imposition of an HOA accomplishes several benefits for the municipality. First, these amenities may be burdened with property taxes which would not be the case if the amenities were owned by the municipality. Thus the mandated private amenities are cash generators for the municipalities. Second, the municipalities bear no obligation to maintain the amenities given that they are owned by the HOA. On the other hand, HOA communities are exempt from taxes on certain services provided by the municipality, if the HOA is providing them instead.
· In The Voluntary City, published by the libertarian Independent Institute, Donald J. Boudreaux and Randall G. Holcombe argue not in universal favor of homeowners associations, opining that they do not necessarily have advantages over traditional governments. These include the fact that the association’s creator, e.g. a developer, has an incentive to set up a government structured in such a way as to maximize profits and thus increasing the selling price of the property. If a certain decision would increase the selling price of certain parcels and decrease the selling price of others, the developer will choose the option with the highest net income to itself. This will sometimes result in suboptimal outcomes for the homeowners. Jim Fedako has argued that homeowners associations are better than other forms of government, because their powers are limited by contract.[15]
· [edit] Criticisms
[edit] Onerous regulations : · Homeowner associations have been criticized for having excessively restrictive rules and regulations on how homeowners are allowed to conduct themselves and use their property.[16] Some maintain that homeowner association leaders have limited financial incentive to avoid indulging in rigid or arbitrary behavior; unless people begin to leave in droves, it will have little effect on the value of a board member’s home.
· What is meant by arbitrary is usually understood to mean inconsistent treatment of homeowners who have the same issue.
· [edit] Undemocratic : · Some scholars and the AARP charge that in a variety of ways HOAs suppress the rights of their residents.[17] Due to their nature as a non-governmental entity, HOA boards of directors are not bound by constitutional restrictions on governments, although they are essentially a de-facto level of government.[18]
· At their own expense, a homeowner-member may sue a board of directors for perceived breach of duty. Association insurance provides not only for a board member’s legal expense, but any judgment attained against them.[citation needed] Homeowners must pay out of pocket for any case they bring to court and risk being personally liable for any judgment and/or association’s legal fees as well as their own.[citation needed]
· Corporation and homeowner association laws provide a limited role for HOA homeowners.[19] Unless either statutory law or the corporation’s governing documents reserve a particular issue or action for approval by the members, corporation laws provide that the activities and affairs of a corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the board of directors. Many boards are operated outside of their state’s non-profit corporation laws. Knowledge of corporate laws and state statutes is essential to a properly-run HOA.
· Once notified by a homeowner, attorney or other government official that an HOA organization is not meeting the state’s statutes, the boards have the responsibility to correct their governance. Failure to do so in certain states, such as Texas, can result in the levy of misdemeanor charges against the board and open the board (and HOA) to potential lawsuits to enforce state laws of governance. In some instances, a known failure to rectify the board’s governance to meet the state’s statutes can open the board’s members to personal liability as most insurance policies indemnifying the board members against legal action do not cover willful misconduct.
· Homeowner associations establish a new community as a municipal corporation.[20] Voting in a homeowner association is based on property ownership,[21] Only property owners are eligible to vote. Renters are prohibited from directly voting the unit, although they can deal directly with their landlords under their lease contract, since that is the party who has responsibility to them.
· Additionally, voting representation is equal to the proportion of ownership, not to the number of people.[22] The majority of property owners may be absentee landlords, whose values or incentives may not be aligned with the tenants’. Homeowners have challenged political speech restrictions in associations that federal or state constitutional guarantees as rights, claiming that certain private associations are de facto municipal governments and should therefore be subject to the same legal restrictions.
· Of great concern is the fact that several court decisions have held that private actors may restrict individuals’ exercise of their rights on private property. A recent decision in New Jersey held that private residential communities had the right to place reasonable limitations on political speech, and that in doing so, they were not acting as municipal governments.[23] With few exceptions, courts have held private ‘actors’ are not subject to constitutional limitations — that is, enforcers of private contracts are not subject to the same constitutional limitations as police officers or courts.
·
In 2002, the 11th Circuit Court of Appeals, in in Loren v. Sasser, declined to extend Shelley beyond racial discrimination and disallowed a challenge to an association’s prohibition of “for sale” signs. In Loren, the court ruled that outside the racial covenant context, it would not view judicial enforcement of a private contract as state action, but as private action, and accordingly would disallow any First Amendment relief.[24]
· In the Twin Rivers case, a group of homeowners collectively called The Committee for a Better Twin Rivers sued the Association, for a mandatory injunction permitting homeowners to post political signs and strike down the political signage restrictions by the association as unconstitutional. The appeals court held the restrictions on political signs unconstitutional and void, but the appeals court was reversed when the New Jersey Supreme Court overturned the Appellate courts decision in 2007 and reinstated the decision of the trial court.
· The Court determined that even in light of New Jersey’s broad interpretation of its constitutional free speech provisions, the “nature, purposes, and primary use of Twin Rivers property is for private purposes and does not favor a finding that the Association’s rules and regulations violated plaintiffs’ constitutional rights.” Moreover, the Court found that “plaintiffs’ expressional activities are not unreasonably restricted” by the Association’s rules and regulations. Finally, the Court held that “the minor restrictions on plaintiffs’ expressional activities are not unreasonable or oppressive, and the Association is not acting as a municipality.”
· In some HOAs, the developer may have multiple votes for each lot it retains, but the homeowners are limited to only one vote per lot owned. That has been justified on the grounds that it allows residents to avoid decision costs until major questions about the development process already have been answered and that as the residual claimant, the developer has the incentive to maximize the value of the property.[25]
· [edit] Board misconduct :
· The New Jersey Department of Community Affairs reported[26] these observations of Association Board conduct:
· “It is obvious from the complaints [to DCA] that that [home]owners did not realize the extent association rules could govern their lives.” · “Curiously, with rare exceptions, when the State has notified boards of minimal association legal obligation to owners, they dispute compliance. In a disturbing number of instances, those owners with board positions use their influence to punish other owners with whom they disagree. The complete absence of even minimally required standards, training or even orientations for those sitting on boards and the lack of independent oversight is readily apparent in the way boards exercise control”
· Overwhelmingly … the frustrations posed by the duplicative complainants or by the complainants’ misunderstandings are dwarfed by the pictures they reveal of the undemocratic life faced by owners in many associations. Letters routinely express a frustration and outrage easily explainable by the inability to secure the attention of boards or property managers, to acknowledge no less address their complaints. Perhaps most alarming is the revelation that boards, or board presidents desirous of acting contrary to law, their governing documents or to fundamental democratic principles, are unstoppable without extreme owner effort and often costly litigation.
· Certain states are pushing for more checks and balances in homeowners’ associations. The North Carolina Planned Community Act,[27] for example, requires a due process hearing to be held before any homeowner may be fined for a covenant violation. It also limits the amount of the fine and sets other restrictions.
· California has severely limited the prerogatives of boards by requiring hearings before fines can be levied and then limiting the size of such fines even if the owner-members do not appear. In California, any rule change made by the board is subject to a majority affirmation by the membership if only 5% of the membership demand a vote. This part of the civil code[28] also ensures that any dissenting individual who seeks a director position must be fully represented to the membership and that all meetings be opened and agenda items publicized in advance. In a state such as Massachusetts, there are no laws to prohibit unilateral changes to the documents by the association board.
· [edit] Double taxation : · Most homeowners are subject to property taxation, whether or not said property is located in a planned unit development governed by a homeowners’ association. Such taxes are used by local municipalities to maintain roads, street lighting, parks, etc. In addition to municipal property taxes, individuals who own private property located within planned unit developments are subject to association assessments that are used by the development to maintain the private roads, street lighting, landscaping, security, and amenitites located within the planned unit development. A non-HOA property owner pays taxes to fund street repairs performed by the city; the HOA property owners pay these same taxes, but without the same benefit, since the local government will not maintain the streets to their homes. Thus the HOA property needs to pay a second time, to privately maintain the street.
· The proliferation of planned unit developments has resulted in a cost savings to local governments in two ways. One, by requiring developers to build ‘public improvements’ such as parks, passing the cost of maintenance of the improvements to the common-interest owners; and two, by planned-unit developments being responsible for the cost of maintaining infrastructures that would normally be maintained by the municipality.[29]
· [edit] Financial risk for homeowners : · In some U.S. states (such as Texas) a homeowners association can foreclose a member’s house without any judicial procedure in order to collect special assessments, fees and fines, or otherwise place an enforceable lien on the property which, upon the property’s sale, allows the HOA to collect otherwise unpaid assessments. A proposed constitutional amendment in Texas would limit the power of HOA’s in such matters. A case in point involves a soldier who, in 2008, was informed his fully paid-for $300,000 home in Frisco, Texas had been foreclosed on and sold for $3,500 by his HOA over unpaid dues of $800 while he was serving in Iraq.[30] In 2010, the case was settled and the soldier regained ownership of the home. Federal laws protecting military personnel may have been his defense; however, a gag order prevents details from being known.
· Other states, like Florida, require a judicial hearing. Foreclosure without a judicial hearing can occur when a power of sale clause exists in a mortgage or deed of trust.[31]
· &nb
sp; A report self-published by a professor at Washington University disputes the claim that HOAs protect property values, stating, based on a survey of Harris County, Texas (which had an unusual legal regime regarding foreclosures): “Although HOA foreclosures are ostensibly motivated by efforts to improve property values, neither foreclosure activity nor HOAs appear linked with the above average home price growth.”[32]
· Homeowners association boards can also collect special assessments from its members in addition to set fees, sometimes without the homeowners’ direct vote on the matter, though most states place restrictions on an association’s ability to do so. Special assessments often require a homeowner vote if the amount exceeds a prescribed limit established in the Association’s by-laws. In California, for example, a special assessment can be imposed by a Board, without a membership vote, only when the TOTAL assessment is 5 percent or less of the association’s annual budget. Therefore in the case of a 25 unit association with a $100,000 annual operating budget, the Board could only impose a $5,000 assessment on the entire population ($5,000 divided by 25 units equal $200 per unit). A larger assessment would require a majority vote of the members. In some exceptional cases, particularly in matters of public health or safety, the amount of special assessments may be at the board’s discretion. If, for example there is a ruptured sewer line, the Board could vote a substantial assessment immediately, arguing that the matter impacts public health and safety. In practice, however, most Boards prefer that owners have a chance to voice opinions and vote on assessments.
· Increasingly, homeowner associations handle large amounts of money. Embezzlement from associations has occurred occasionally, as a result of dishonest board members or community managers, with losses up to millions of dollars.[33] Again, California’s Davis-Stirling Act, which was designed to protect owners, requires that Boards carry appropriate liability insurance to indemnify the association from any wrong-doing. The large budgets and expertise required to run such groups are a part of the arguments behind mandating manager certification (through Community Association Institute, state real estate boards, or other agencies).
The AARP has recently voiced concern that homeowners associations pose a risk to the financial welfare of their members. They have proposed that a homeowners “Bill Of Rights” be adopted by all 50 states to protect seniors from rogue Homeowner Associations.[34]
· [edit] Limits to powers: · Prior to the Telecommunications Act of 1996, HOAs could restrict or prohibit satellite dishes. Many communities still have these rules in their CC&Rs, but after October 1996, they are no longer enforceable. With a few exceptions, any homeowner may install a satellite dish of a size of one meter or smaller in diameter (larger dishes are protected in Alaska). While HOAs may encourage that dishes be placed as inconspicuously as possible, the dish must be allowed to be placed where it may receive a usable signal. Additionally, many HOAs have restrictive covenants prohibiting a homeowner from installing an OTA (Over-The-Air) rooftop antenna. These restrictions are also no longer enforceable, except in some instances. For example: the antenna may be installed at any location unless it imposes upon common property. Also, the antenna must be of a design to receive local, not long-distance signals and must not extend any higher than twelve feet above the top roof-line of the home, unless an exception is granted by the HOA due to extenuating terrestrial interference.[35]
· In Florida, state law prevents covenants and deed restrictions from prohibiting “Florida-Friendly Landscaping,”[36] a type of xeriscaping. In spite of the law, at least one homeowner has faced harassment and threat of fines from a homeowners’ group for having insufficient grass after landscaping his yard to reduce water usage.[37] Similar legislation was introduced and passed by the legislature in Colorado but was vetoed by governor Bill Owens.[38][39] Residents in Colorado have continued to call for regulation to protect xeriscaping, citing homeowners’ associations that require the use of grasses that consume large quantities of water and threaten fines for those who do not comply with the covenants.[40]
· [edit] Alternative to CIDs : · An alternative to CIDs is the multiple-tenant income property, or MTIP, known in the United Kingdom as housing estates. CIDs and MTIPs have fundamentally different forms of governance. In a CID, dues are paid to a nonprofit association. In an MTIP, ground rents are paid to a landowner, who decides how to spend it. In both cases, certain guidelines are set out by the covenant or the lease contract; but in the latter scenario, the landowner has a stronger incentive to maximize the value of all the governed property in the long term (because he is the residual claimant of it all) and to keep the residents happy, since his income is dependent on their continued patronage. These factors are cited as arguments in favor of MTIPs.[7]
· [edit] See also /· Gated community /· Davis-Stirling Common Interest Development Act
· Housing society /· Business Improvement District /
·
[edit] References :
· 1.^ McKenzie, Evan. Privatopia: Homeowner Associations and the Rise of Residential Private Governments. Yale University Press. pp. 7. ISBN 0-300-06638-4.
· 2.^ “Industry Data – National Statistics”. Community Associations Institute.
· 3.^ Plotkin, Wendy (Spring 2001). “Hemmed in”: The struggle against racial restrictive covenants and deed restrictions in Post-WWII Chicago. Journal of the Illinois State Historical Society. Retrieved 2007-04-13.
· 4.^ [1]
· 5.^ Stabile, Donald R.. Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing. Greenwood Press (2000). ISBN 0-313-31571-X.
· 6.^ The Homes Association Handbook. Urban Land Institute. pp. 433. ISBN 0-87420-050-4.
· 7.^ a b MacCallum, Spencer Heath. “The Case for Land Lease versus Subdivision”. The Voluntary City. pp. 373–374.
· 8.^ (http://www.ccfj.net/HOAbillCAslaughtered.html) (http://www.fortbendnow.com/2010/08/04/47120) (http://www.thehoaprimer.org/cai.htm)
· 9.^ [2]
· 10.^ Privatopia, p. 142
11.^ Educating Homeowners, Orange County Register,
Nov. 12, 2006
· 12.^ CAICalif – Zogby Poll Results
· 13.^ 2007 National Survey, Foundation for Community Associations Research
· 14.^ Two thirds “annoyed” with HOA survey says, Los Angeles Times blogs: Pardon Our Dust: Home Improvement Tales with Kathy Price-Robinson (September 2007)[3]
· 15.^ Fedako, Jim (March 8, 2007), Government Laws Are Not Contracts
· 16.^ www.dipnoid.com/2009/12/7-ridiculous-homeowners-association-hoa-rules/
· 17.^ Barton & Silverman 1994, p. xii.
· 18.^ Professor McKenzie, Privatopia, 21
· 19.^ Sproul, Curtis (1994), “The Many Faces of Community Associations under California Law”, in Stephen E. Barton & Carol J. Silverman, Common Interest Communities: Private Governments and the Public Interest, Berkeley, CA: Institute of Governmental Studies, pp. 73, ISBN 0-87772-359-1
· 20.^ Hugh Mields, Jr., Federally Assisted New Communities: New Dimensions in Urban Development (Washington, D.C.: Urban Land Institute, 1973), 54.
· 21.^ Barton & Silverman 1994, p. 36
· 22.^ McKenzie 1994, p. 128
· 23.^ Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Assoc., N.J. Supreme Court (2007-07-26).
· 24.^ Loren v. Sasser, 11th Cir. (2002).
· 25.^ The Voluntary City, p. 297
· 26.^ Battle at Twin Rivers – AARP AMICUS BRIEF
· 27.^ “Chapter 47F – North Carolina Planned Community Act”. North Carolina Statutes.
· 28.^ www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1363.810-1363.850 Davis Stirling Act
· 29.^ Katherine N. Rosenberry, “The Legislature Addresses Problems in the Law of Condominiums, Planned Development and Other Common Interest Projects,” 3 California Real Property Journal p. 27 (Winter 1985).
· 30.^ www.npr.org/templates/story/story.php?storyId=128078864&ps=cprs
· 31.^ “Texas Foreclosure Law”. StopForeclosure.com. Retrieved 2007-05-07.
· 32.^ Adolph, Christopher (21 October 2002). “Homeowner Association Foreclosures and Property Values in Harris County, 1985–2001” (PDF).
· 33.^ 4 arrests spur hope for other condo cases
· 34.^ AARP: Homeowner Bill of Rights
· 35.^ www.fcc.gov/mb/facts/otard.html FEDERAL COMMUNICATIONS COMMISSION (FCC) INFORMATION SHEET
· 36.^ www.flsenate.gov/cgi-bin/view_page.pl?Tab=session&Submenu=1&FT=D&File=sb2080er.html&Directory=session/2009/Senate/bills/billtext/html/
· 37.^ Justin George, “Where saving water bends the rules”, St. Petersburg Times, March 25, 2004.
· 38.^ Kevin Darst, “Bill embraces landscaping options”, The Coloradoan, Apr. 13, 2005.
· 39.^ Lynn Bartels, “WATER BILL GETS CAUGHT IN WASH FOUR VETOES EXPAND LIST OF OWENS’ REJECTS TO 28.(News)”, Rocky Mountain News, Jun. 1, 2005.
· 40.^ Jen Brooks, Cary, “Rigid rules on lawns”, The News & Observer, Sep. 08, 2007.
· The original article was based on an article first published at Internet-encyclopedia.org.
· [edit] Further reading /· David T. Beito, Peter Gordon, and Alexander Tabarrok, eds., The Voluntary City: Choice, Community, and Civil Society, University of Michigan Press, ISBN 0-472-08837-8/
· Ronald M. Sandgrund and Joseph F. Smith, “When the
· STATUTE OF LIMITATIONS FOR DEFICIENCY BALANCES
· Posted by Richard Zaretsky on January 1, 2010 at 11:51pm in Law Back to Law Discussions
· I was asked what the story was on statues of limitations (in Florida) for enforcement of deficiency judgments.
· The Florida Statute of Limitations (time to enforce) the Promissory Note is 5 years from the time it went into default. What defines when that default is can have more than one meaning.
· If your property has been foreclosed, the time starts with the date of the foreclosure sale. If your property has been sold at short sale, the time is the date of the closing (although it could be a few days later whent he lender gets its money from the sale). If it is a deed in lieu of foreclosure and there remains an unsatisfied deficiency, it is the date of the recording of the deed. If the lender takes no action at all, such as a 2nd mortgage lender that does not defend its worthless mortgage, it can be the date of the foreclosure of the first mortgage OR the date of notice of the default in the 2nd mortgage promissory note. · There is also a rule on how long a plaintiff can keep open a foreclosure lawsuit that has no activity. That rule says after 1 year of inactivity, the lawsuit can be dismissed by the court. The rule is referred to the “Failure to Prosecute Within One Year” rule. IF the court dismisses the lawsuit after one year and before the bank asks for a deficiency judgment, the lender can still file a new lawsuit and sue just on the promissory note unpaid balance. Some people think that once the one year has past, they are free of the deficiency after a foreclosure. This in incorrect. · Florida courts have noted that a claim for deficiency in a foreclosure action does not accrue until the foreclosure sale has occurred. Thus the five year period starts at the time of the foreclosure sale (not the time of the default). With the above being said, please understand that this respons
e is a general comment about the law and is not expressing a legal opinion about the very general fact pattern raised herein. As such, this brief response may not be relied upon for any purpose. Please consider obtaining formal legal advice if you have a specific fact pattern with respect to which you need an answer. Copyright 2010 Richard P. Zaretsky, Esq.
· Definition of guardian: · A guardian is a person who has been appointed by the court to act on· behalf of a ward’s person, property or both. {F.S. 744.102(9)} The guardian may exercise only those rights that have been removed from the ward and delegated to the guardian. {F.S. 744.361(1)}
Limited Guardianships : In situations where the court finds that the incapacitated person lacks some · but not all of the capacity necessary to care for his or her person, property, or after the person voluntarily petitions the court for appointment of a limited guardianship, the court will appoint a guardian to exercise only those legal rights and powers specifically designated by the court order {F.S. 744.102(9) (a)}.
· The concept of a limited guardianship recognizes that the incapacity of each person is different and permits a guardianship to be imposed only to the extent required by an individual’s actual mental and functional limitations. The limited guardianship is designed to encourage the most self-reliance and independence possible, and to be the least restrictive alternative to a complete or plenary guardianship.
· Guardian as Fiduciary : The guardian is the incapacitated person’s fiduciary. The Guardian occupies a position of special trust and confidence for the incapacitated person. As afiduciary, the business the guardian transacts or the money or property which he or she handles, is not his or her own for his or her own benefit, but for the benefit of the incapacitated person. The guardian must be independent and impartial. A guardian who is appointed to manage the incapacitated person’s · financial affairs must protect and preserve the incapacitated person’s assets and manage the assets as a “prudent person” would in managing the financial affairs of another person.
· Who may serve as a guardian? Any resident of the State of Florida who is 18 years old and of sound mind is qualified to act as guardian. In addition, a non-resident may serve if he or she is · related to the ward by blood, adoption or law. {F.S. 744.309(2)}.
Also a Trust company, State Bank, National Bank, or a Federal Savings and Loan may be a guardian. {F.S. 744.309(4)} A non-profit corporation organized for religious or charitable purposes may be appointed a guardian. {F.S. 744.309(5)}
· Attorney for the Alleged Incapacitated Person: In the initial stages of guardianship, an alleged incapacitated person must be represented by an attorney. The court will appoint an attorney for the alleged incapacitated person. The alleged incapacitated may substitute his or her attorney for the attorney appointed by the court. {F.S. 744.331(2) (b)} The attorney for the alleged incapacitated person must represent the alleged incapacitated person’s expressed wishes, unless they are contrary to the Florida Rules governing attorney’s conduct. {F.S. 744.102(1)} When a court appoints an attorney for an · alleged incapacitated person, the court must appoint an attorney who is included in the attorney registry compiled pursuant to Florida Statutes sections 27.40 and 27.42. Appointments must be made on a rotating basis taking into consideration conflicts. {F.S. 744.331(2) (a)}
· The ward retains the right to have his or her own attorney in various proceedings during the guardianship. {F.S. 744.331(2) (b)} For example, an attorney will be appointed for the ward in a hearing for extraordinary authority to be granted to the guardian, {F.S. 744.3725(1)} or in a hearing to determine whether all or some of the ward’s rights should be restored. {F.S. 744.464(2) (e)}
· Implementation of Guardianship:
· Oath: Prior to exercising authority, every guardian must take an oath that he or she will faithfully perform his or her duties as guardian. {F.S. 744.347}
· Real Estate : · When the estate contains real property, the guardian should investigate the· status of insurance coverage, mortgage payments or any other covenants and restrictions, taxes, and judgments that may affect the property. The guardian should advise the mortgagee, insurance company, and any joint owners of the property of his or her appointment as guardian and request that any inquiries and related correspondence be sent to him or her. The guardian should assess whether · or not retaining his or her interest in the property is beneficial for the ward. The guardian should consult with his or her attorney about any and all real property issues. No sale of real property can take place without following strict guidelines outlined in the statute.
· THE RIGHTS OF THE WARD: · The guardian’s role is to balance the protection and care provided to the ward with genuine respect for and encouragement of the independence still exercisable by the ward.
· The Rights of the Incapacitated Ward that are Retained by the Ward: {F.S. 744.3215(1)}
o To have an annual review of the guardianship report and plan.
o To have continuing review of the need for restriction of his or her rights.
o To be restored to capacity at
the earliest possible time.
o To be treated humanely, with dignity and respect, and to be protected against abuse, neglect and exploitation.
o To have a qualified guardian.
o To remain as independent as possible, including having his or preference as to place and standard of living honored, either as he or she expressed or demonstrated his or her preference prior to the determination of his or her incapacity or as he or she currently expresses his or her preference, insofar as such request is reasonable.
o To be properly educated.
o To receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.
o To receive the necessary services and rehabilitation necessary to maximize the quality of life.
o To be free from discrimination because of his or her incapacity.
o To have access to the courts.
o To be represented by counsel (an attorney).
o To receive visitors and communicate with others.
o To receive notice of all proceedings related to determination of capacity and guardianship, unless the court finds the incapacitated person lacks the ability to comprehend the notice.
o To privacy.
· Before the court may grant extraordinary powers to the guardian to exercise any of the above enumerated rights, the court MUST {F.S. 744.3725}: Appoint an independent attorney to act on the incapacitated person’s behalf, who must have the opportunity to meet with the incapacitated person and at full judicial hearing present evidence and cross examine witnesses on behalf of the incapacitated person; Receive as evidence independent medical, psychological, and social evaluations with respect to the incapacitated person by competent professionals or appoint its own experts to assist in the evaluation; Personally meet with the incapacitated person to obtain an impression of the person’s capacity, so as to afford the incapacitated person the full opportunity to express his or her · personal views or desires with respect to the judicial proceeding and issue(s) before the court; Find by clear and convincing evidence that the person lacks the capacity to make a decision about the issue(s) before the court and that the incapacitated person’s capacity is not likely to change in the foreseeable future; Be persuaded by clear and convincing proof that the authority being requested is in the best interests of the incapacitated person; and In the case of a dissolution of marriage, find that the ward’s · spouse has consented to the dissolution.
· Investment Powers : A guardian must invest the ward’s property prudently. {F.S. 744.361(6) (a)} The guardian must:
o Use any special skills that he or she has;
o Not invest in speculative assets;
o Preserve assets, but also consider the income of the ward; and
o Consider the tax ramifications (income and estate) of Investment
D. Settlement of Claims : Court approval is required to settle any claim of the ward arising before or
· after the appointment of the guardian {F.S. 744.387(3) (a)}. The guardian may settle contract claims against the ward’s estate and claims by the ward’s estate with court approval. Examples include claims to extend or modify any mortgage or claims to enter into a fair compromise. F. Powers Without Court Approval The guardian also has the authority and flexibility to perform, without prior court approval, routine acts and pay items that are normal and necessary to protect, manage, and preserve the assets of the estate. However, in exercising his or her duties, the guardian should interpret the law very strictly, and if the action contemplated is not mentioned and approved specifically in the law, the guardian should seek advice of an attorney as to whether the approval of the court is necessary.
· A plenary guardian may: Retain assets owned by the ward. / Receive assets. / Vote on stocks or other securities./· Insure the property and assets of the ward and himself or herself against liability. Execute and deliver any instrument necessary to implement the duties of Florida Statute section 744.444 in the orders of the court. Pay taxes and assessments on the ward’s property. Pay valid encumbrances against the ward’s property in accordance with their terms, but no prepayment may be made without prior court approval. Pay reasonable living expenses of the ward, taking into consideration the accustomed standard of living, age, health, and financial condition of the ward. The guardian of a minor is not authorized to expend funds for the minor’s living expenses if one or both of the ward’s parents are alive. The guardian of
GUARDIAN OF THE PROPERTY: The guardian of an incapacitated person may exercise only those rights that have been removed from the ward and delegated to the guardian. {F.S. 744.361(1)} It is the duty of the guardian of the property to manage the ward’s property and estate to the extent authorized by the court. General Duties and Responsibilities
1. To locate and marshall the ward’s assets
2. To take possession of the ward’s property under guardianship
3. To determine if there is a cause of action
4. To try to increase the value of the ward’s assets
5. To keep the ward’s property in good repair
6. To use any special skills for the benefit of the ward
7. To maintain an accurate record of income and expenses
8. To file an initial inventory of the ward’s assets within sixty (60) days of his or her appointment
9. To file an annual accounting of the ward’s estate on a yearly basis as required by Florida Statute or local Administrative Rule
10. To petition the court for instructions to act or approval for actions
11. To hand over the ward’s assets to
the person lawfully entitled to them upon termination of the guardian
B. Annual Reports: In addition to the initial plan, annual guardianship reports must be filed within ninety (90) days after the last day of the anniversary month of the guardian’s appointment. This report must include the annual guardianship plan and the annual financial return. All guardianship reports must be filed in a timely manner with the probate division of the circuit court. The ward, except in certain circumstances, and his or her attorney, if any, must be served with a copy as well. Failure to file annual reports may result in sanctions against the guardian. {F.S. 744.367} Written objections to any portion of the annual report may be filed by any interested person, including the ward, within thirty (30) days after the annual report has been filed. If such an objection has been filed, the court must set the matter for hearing and conduct the hearing within thirty (30) days of the date that the objection was filed. {F.S. 744.367(4), (7)}
Court: CONFLICTS OF INTEREST: General: It is essential to the proper conduct and management of a guardianship that the guardian be independent and impartial. The fiduciary relationship that exists between the guardian and the ward may not be used for the private gain of the guardian, other than the payment of fees and expenses reimbursable to the guardian as provided by law. The guardian may not incur any obligation on behalf of the guardianship that conflicts with the proper discharge of guardian’s duties. (F.S. 744.446}
Restrictions: If the guardian engages in any prohibited activity without first obtaining a court order authorizing the guardian to do so, the activity is voidable by the court and the guardian may be removed. The guardian may also be liable for a surcharge or subject to other sanctions available under the law. If the guardian is not sure about the appropriateness of a particular action or about the guardian’s relationship to the ward, the guardian should consult an attorney. {F. S. 744.446(3)}
Choosing the Guardianship Attorney : There are three main questions that should be considered when choosing a guardianship attorney:
1. Does the attorney have adequate knowledge about guardianship law? How many guardianships has the attorney administered? Does the attorney appear to be charging the guardian to learn how to do a guardianship?
2. Does the attorney have the adequate time to devote to the case? Does paperwork take an unreasonable time to be generated by the attorney? Is the attorney available when the guardian needs to consult?
3. How is the guardian treated personally by the attorney and the attorney’s office staff? Do they give the guardian the time and advice needed? Does it seem as though it is a bother for them to attend to needs of the guardian?
A report self-published by a professor at Washington University disputes the claim that HOAs protect property values, stating, based on a survey of Harris County, Texas (which had an unusual legal regime regarding foreclosures): “Although HOA foreclosures are ostensibly motivated by efforts to improve property values, neither foreclosure activity nor HOAs appear linked with the above average home price growth.”[32] · Florida courts have noted that a claim for deficiency in a foreclosure action does not accrue until the foreclosure sale has occurred. Thus the five year period starts at the time of the foreclosure sale (not the time of the default).
· With the above being said, please understand that this response is a general comment about the law and is not expressing a legal opinion about the very general fact pattern raised herein. As such, this brief response may not be relied upon for any purpose. Please con The Florida Statute of Limitations (time to enforce) the Promissory Note is 5 years from the time it went into default. What defines when that default is can have more than one meaning.
• If your property has been foreclosed, the time starts with the date of the foreclosure sale. If your property has been sold at short sale, the time is the date of the closing (although it could be a few days later whent he lender gets its money from the sale). If it is a deed in lieu of foreclosure and there remains an unsatisfied deficiency, it is the date of the recording of the deed. If the lender takes no action at all, such as a 2nd mortgage lender that does not defend its worthless mortgage, it can be the date of the foreclosure of the first mortgage OR the date of notice of the default in the 2nd mortgage promissory note.
• There is also a rule on how long a plaintiff can keep open a foreclosure lawsuit that has no activity. That rule says after 1 year of inactivity, the lawsuit can be dismissed by the court. The rule is referred to the “Failure to Prosecute Within One Year” rule. IF the court dismisses the lawsuit after one year and before the bank asks for a deficiency judgment, the lender can still file a new lawsuit and sue just on the promissory note unpaid balance. Some people think that once the one year has past, they are free of the deficiency after a foreclosure. This in incorrect.
sider obtaining formal legal advice if you have a specific fact pattern with respect to which you need an answer.
· · Copyright 2010 Richard P. Zaretsky, Esq.
·
Definition of guardian A guardian is a person who has been appointed by the court to act on · behalf of a ward’s person, property or both. {F.S. 744.102(9)} The guardian may exercise only those rights that have been removed from the ward and delegated to the guardian. {F.S. 744.361(1)}
Limited Guardianships In situations where the court finds that the incapacitated person lacks some · but not all of the capacity necessary to care for his or her person, property, or after the person voluntarily petitions the court for appointment of a limited guardianship, the court will appoint a guardian to exercise only those legal rights and powers specifically designated by the court order {F.S. 744.102(9) (a)}. The concept of a limited guardianship recognizes that the incapacity of each person is different and permits a guardianship to be imposed only to the extent required by an individual’s actual mental and functional limitations. The limited guardianship is designed to encourage the most self-reliance and independence possible, and to be the least restrictive alternative to a complete or · plenary guardianship.
· Guardian as Fiduciary: The guardian is the incapacitated person’s fiduciary. The Guardian occupies · a position of special trust and confidence for the incapacitated person. As afidu
ciary, the business the guardian transacts or the money or property which he or she handles, is not his or her own for his or her own benefit, but for the benefit of the incapacitated person. The guardian must be independent and impartial. A guardian who is appointed to manage the incapacitated person’s financial affairs must protect and preserve the incapacitated person’s assets and manage the assets as a “prudent person” would in managing the financial affairs of another person.
. {F.S. 744.309(2)}. Also a Trust company, State Bank, National Bank, or a Federal Savings and Loan may be a guardian. {F.S. 744.309(4)} A non-profit corporation organized for religious or charitable purposes may be appointed a guardian. {F.S. 744.309(5)}
·
.