As of July 1, 2010, Chapters 718 and 720 of Florida Statutes, were amended to allow associations to make a demand for rent on a tenant who is occupying a unit or parcel from which the owner of the parcel was delinquent in maintenance assessment obligations owed to the association of over 90 days. The tenant in such instance is required to pay all future rent payments that the tenant owes to the owner directly to the association, which is used to offset the maintenance assessment delinquency. The demand is continuing in nature until either the delinquency is satisfied and the association releases the tenant or the tenant discontinues tenancy at the parcel.
One issue that has arisen is whether an association can collect funds paid to a delinquent homeowner by HUD pursuant to a qualified housing assistance program with the federal government (commonly referred to as “Section 8 housing”). In a recent case handled by Kaye & Bender, P.L., the Firm represented a homeowners’ association at which the parcel owner became delinquent in maintenance assessment payments. Demand was made upon the tenant occupying the parcel, who indicated that the tenant’s monthly out-of-pocket payments constituted only a portion of the rent ($275.00 out of a total monthly payment of $1,784.00) for the continued occupancy of the parcel. The tenant complied and began making payments of $275.00 directly to the association. The housing authority (HUD), although sympathetic to the association’s position, indicated that the statute did not specifically address this situation and refused to divert the payments otherwise payable to the parcel owner to the association without a court order.
In the case of Willoughby Estates Homeowners’ Association, Inc., v. Lindel Anderson, Case No.: 2011CA007567XXXXMB, at a hearing recently held before the Honorable Judge John J. Hoy in the Palm Beach Circuit Court, Attorney Gerard Collins argued that the funds payable by the housing authority pursuant to Title 24 of the Code of Federal Regulations and Section Eight of the federal government’s Housing Assistance Program constituted “a future monetary obligation related to the parcel” as contemplated by Florida Statutes, and were properly subject to attachment by the association to offset the parcel owner’s maintenance assessment delinquency. Judge Hoy agreed, and entered an order directing the housing authority to divert the funds otherwise due to the parcel owner to the association until the delinquency was satisfied. The association is now collecting the full $1,784.00 related to the parcel and applying it toward the delinquency.
It is important to note that the order entered by the Palm Beach Circuit Court in this case is a decision of a Florida trial court and that, as of this writing, this issue has not yet been ruled upon by any Florida appellate court or any federal trial or appellate court. As such, the order is persuasive, but does not constitute binding precedent in the State of Florida. Also, while the order in the above described case related to a homeowners’ association, Chapter 718 of Florida Statutes, governing condominium associations, contains a similar provision and language, so the court’s order in this case would also be persuasive for a condominium association.