Blog: Tampa decision does not settle rent and eviction dispute

May 10, 2012

The following article was published in the South Florida Sun Sentinel on May 10, 2012:

Tampa decision does not settle rent and eviction dispute

By Jean Winters, Esq.

Today, a Tampa area homeowner lost her plea against an HOA to dismiss the eviction of her tenant, that ultimately left her without possession, control or access to her own property. On March 4, 2012, I blogged on this case. It raises important questions about the amount of power a community association should have over an owner’s property rights. Specifically, this relates to the rental provision enacted in 2010 that allows an association to demand rents from the tenant and to evict if the rent payment to the association is not made. Here, the HOA decided that it could not only collect rents, but also take possession of the property, change the locks, remodel and re-rent to someone of its choosing. In other words, it kicked the homeowner out of her own house and took over.

The issue is no more resolved today than it was yesterday. Why? The hearing was decided on a purely procedural issue, because the tenant and owners did not retain legal representation at an early stage of the process. Furthermore, the case does not act as a precedent because each owner’s case would be decided on the individual facts, and an owner should not be afraid to fight back. It may not even be too late for the tenant and owner in this case to seek other relief. As much as I understand the need for associations to recover assessments, no association has a right to ignore or make up the law as it goes along. In my opinion, that is what happened here.

There is more to this case than the eviction. Collecting rents and evicting are very different than obtaining possession and remodeling for the HOA’s benefit. The court granted the HOA possession of the property, and appointed a receiver with far-reaching powers and control over the property. The HOA changed the locks and repainted or remodeled the interior of the home. That is a lot of power — especially when there is no pending assessment foreclosure and no limit to the duration of the HOA’s or the receiver’s rights to control the property. Under the current court order, how and when does the homeowner regain control over her house?

If this HOA’s interpretation is correct, then an association can permanently evict an owner from his or her own property without foreclosing, and rent the property while depriving the owner of the income. Who remains responsible for paying the taxes, insurance and mortgage? The owner, of course. I don’t believe that is what the legislature intended. Do you?

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