Communities throughout the Nation have been faced with the launch of a campaign called "Occupy Our Homes" (or O4O), which is a public showdown against big banks and public housing authorities. This campaign is targeting for occupancy, units acquired by banks in the foreclosure process or government owned units and which are vacant. These occupiers have been quoted as identifying vacant government or bank-owned homes, breaking into them and moving people into the units. Their defense is that housing is a human right and therefore should be available for occupancy whether legally or not.
How could this development in the occupy movement affect your community?
An argument in favor of the occupation is that occupied units would be better maintained than would vacant units, thereby improving the appearance of the unit and thereby raising property values. The big question is whether these type of occupiers would spend money for home maintenance in the first place. A perceived detriment of this type of occupation is that homes would not be better maintained, would draw large groups of people occupying a single home, thereby creating more opportunity for civil disturbance and rule and covenant violations within the Community Association. This latter concern would have a detrimental effect on property values and the quiet enjoyment of neighbors in the Community Association.
The Community Association should review its governing documents to ensure that there is an approval process in connection with the occupancy of a home, where the occupancy is not under a lease arrangement. In essence, how would the governing documents address squatters in the units? The association should contact its legal counsel for this answer. There may be the need to amend the governing documents to better address this issue.
The Community Association confronted with an occupied home should contact the bank who owns the unit and demand that the bank dispossess the occupant as a trespasser in the unit and as a potential violator of the governing documents. Jay Steven Levine Law Group plans to address this question at the time that the bank is seeking its Summary Final Judgment of Foreclosure to require banks to dispossess occupiers who are squatters (not tenants), and provide a direct remedy in favor of the association to secure a writ of possession as part of the bank foreclosure lawsuit. It is not certain at this time whether the judges will recognize this potential problem and provide this needed remedy to an association.
Also, this situation should be reviewed by localities who have adopted vacant property ordinances whereby banks are required to provide upkeep and maintenance of units which are vacant and are involved in the bank foreclosure process. Home owners may want to address their respective localities to ensure that applicable ordinances, if any, require banks to dispossess squatters from units which are in bank foreclosure and thereafter when the unit is vacant and still owned by the bank.
This article does not take a political stance as to the occupy movement or any related movement.
By: Jay Steven Levine, Esquire, founder of the Jay Steven Levine Law Group, a full service community association and litigation practice, with offices in Boca Raton, Palm Beach Gardens and Sunrise.
About the Jay Steven Levine Law Group
The Jay Steven Levine Law Group specializes in Florida community association law and Florida commercial litigation. The lawyers at the Jay Steven Levine Law Group have over a combined fifty years of legal experience, maintaining offices in Sunrise, Boca Raton and Palm Beach Gardens, and by appointment in the Treasure Coast.
For more information about the Jay Steven Levine Law Group, please email jsl@jsllawgroup.com. Additional information may be found at: http://www.jsllawgroup.com
Association Law · Collections · Construction Defects · Casualty & Insurance Claims ·Contracts · Litigation
Your Community Partner sm
florida community association lawyer
procedures is known in the industry as the “motion to compel”. Under this theory, community association lawyers throughout the state of Florida filed motions in mortgage foreclosure actions asking courts to require lenders to diligently pursue their mortgage foreclosure actions, failing which the lender was to pay assessments even prior to the conclusion of the mortgage foreclosure action. Lenders counsel argued that a court does not have the authority to enter such a ruling, as it would be contrary to F.S. 718.116(1)(b), which provides that the first mortgagee is required to pay assessments only after acquiring title. The Third District Court of Appeals, in the case of U.S. Bank National Ass’n v. Tadmore, 23 So.3d 822 (Fla. 3d DCA 2009), ruled last year that such a motion to compel is contrary to the statute, and rejected the notion that equity and fairness should provide a different result, holding that equity must follow the law. The Fourth District Court of Appeals entered the same ruling on April 14, 2010 in the case of Deutsche Bank National Trust Company as Trustee v. Coral Key Condominium Association (at Carolina), Inc. and Dario Luna, (Fla. No. 4D09-3392, April 14, 2010). There are now two Districts which have refused to approve of motions to compel as to condominium associations. The 
o the pursuit of collection of delinquent assessments when a bank has filed a foreclosure action was to cease further collection efforts and await the completion of the bank foreclosure. Such a policy made sense when bank foreclosures took about six to seven months to complete. Today, bank foreclosures typically take as long as 2 or more years to complete. The change in trend is attributable to the following: Once a bank completes a bank foreclosure, the bank is responsible for limited unpaid assessments pursuant to Florida law but must pay assessments on an ongoing basis. The bank will also be required to maintain the property. Against this backdrop is the reality that the bank will add another piece of unwanted real property to their burgeoning inventory of units. The legislature and the courts have provided little incentive for lenders to move forward with its foreclosures.
