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 custom 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
residential 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]
· 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 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 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 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.
. {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)}
·
.