CAN YOU GIVE AWAY

WHAT'S NOT YOURS?

By Eric Glazer, Esq.

Published August 20, 2012

Can you tell a third person that it's OK to drive your neighbor's car without your neighbor's consent?  Can you tell a third party that it's OK to wear your neighbor's clothes without your neighbor even knowing about it?  If you think these are silly questions, then you have to ask why some associations and some courts think it's OK to in effect seize the home of a neighbor that stopped paying assessments, put an owner of their choice into the neighbor's unit, and then keep the rent.

I see this happening more and more in associations around the state.  Associations, either of their own volition, or based upon poor advice, are being advised that simply because a unit appears to be abandoned, the association has the right to change the locks on the unit and rent out the unit until the bank finally forecloses and takes back title.

You know what it's called when the association changes the lock to a unit that it doesn't own and then rents out the property to someone else?  A felony.  Trespassing.  Theft.  A crime and dangerous.  Unless and until the association owns the unit, the association better stay out.

Suppose for a moment that the association was incorrect in assuming the unit was abandoned and the true owner returns to the unit, puts the key in the lock, turns the knob and sees that someone else is walking around his or her unit.  Anybody else think this situation can result in a tragedy where both parties think the other is breaking into their unit?  Under Florida's Stand Your Ground Law and Castle Doctrine, it would seem to me that each may be justified in using deadly force against the other.  Scary to say the least.

Interestingly enough, I've seen lots of courts appoint receivers to enter these abandoned properties and grant them the authority to enter the unit, fix it up, install new appliances, find a tenant, pay a realtor, accept huge receivership fees, accept huge management fees, and the true owner never even knows that that this is happening to their own property.  Have you ever heard the saying that sometimes the cure is worse than the disease?  Often times that is the exact situation when a receiver gets appointed to manage communities with a great deal of foreclosures, because the only entity that makes money is the receiver and/or entities that are close to the receiver.  If an association has competent and honest management and legal counsel, and an elected Board of Directors, there simply is no reason for a costly receivership. 

In fact, as you read this, a case that I have worked on has made it's way to the Florida Supreme Court.  The issue is whether a court even has the authority to appoint a receiver to manage the association property, for reasons other that those very few specific reasons that are outlined in Florida Statute 718.  I'll let you know when a decision is handed down.  In the mean time, promise that you won't rent out your neighbor's unit unless you own it.

P.S. To avoid confusion, the association can still collect the rent from the tenant of a delinquent unit owner after the proper statutory notice is given.  The above article is directed to the specific situation where there is no tenant, and the association seeks to put their own tenant into the unit without the consent of the current owner.