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Memorandum To Clients April 2005 FORECLOSURES: FLAG MAN=S HOME CANNOT BE SOLD TO PAY FOR ASSOCIATION=S ATTORNEY=S FEES What happens when the law, politics and patriotism collide? You get the Attorney General of Florida defending a lawsuit filed by an Association attempting to enforce the community=s declaration of restrictions. The latest situation involved a homeowner erecting a flag pole in violation of the Association=s documents. The Fourth District Court of Appeal has put to rest the on-going saga of the Aflag man=s@ home. The Florida appellate court recently ruled in Andres v. Indian Creek Phase III-B Homeowner=s Association, Case No. 4D03-3641, (Fla. 4th DCA, March 23, 2005), that the Aflag man=s@ home cannot be sold by the Association to collect on the Association=s judgment for attorney=s fees. The Association sued the Andreses alleging they violated the restrictions by erecting a flag pole in their front yard to fly the American flag. The trial court found the Andreses violated the restrictions and ordered the pole=s removal. The Association then sought to foreclose upon the home to pay for the attorney=s fees incurred by the Association. The Association obtained a final judgment granting the foreclosure of the home. Despite media reports, the issue before the court was not whether the owners could fly a flag. The appeal addressed the Andreses argument that the Florida Constitution exempts homestead property from a forced sale, or foreclosure, and for judgments for attorney=s fees. The appellate court agreed, stating A[j]udments for attorneys= fees, like other judgments falling outside the specified constitutional exceptions, cannot be enforced by forced sale of homestead property.@ The court appeared to take a narrow approach to the Association=s assessment authority in determining that the Association=s documents did not provide for a continuing lien that preexisted the homestead exemption for the attorney=s fees. Even though the Association=s documents specifically provided for the right to enforce liens by foreclosure, the court zeroed in on the fact the language in the documents did not say that the Association could lien for attorney=s fees. AThis is an ambiguity that should be resolved in favor of the homeowner,@ the court stated. The court stated the Association=s documents did not declare attorney=s fees for enforcement of violations to be assessments; thus, the court determined there was not a continuing lien which would allow foreclosure. The court specifically mentioned that the Association was not precluded from seeking other measures to collect on its judgment for attorney=s fees. Last year, the Florida legislature changed the Homeowners= Association Act, eliminating the right to foreclose for fines imposed against homeowners for violating restrictions. Homeowners= Association=s may attempt to get around this law by imposing special assessments. If this avenue is attempted, then it will be important to specifically provide that the lien for the special assessments includes costs and attorney=s fees. Note, Florida courts have yet to rule on the right to foreclose as a result of a special assessment imposed for something that looks and smells like a fine. TORTS: BEWARE OF WHAT YOU ASK FOR - INVITED DEFAMATION IS A COMPLETE DEFENSE TO DEFAMATION What happens if a fired employee wants to know why he or she was being fired? If you are in a public setting, can you respond to the question? So long as the employee has posed the question, the Florida employer may be able to answer even if the statement could be defamatory. In Charles v. State of Florida Department of Children and Families District Nine, Fla. L. Weekly D397 (Fla. 4th DCA, February 9, 2005), the court ruled an employee=s request that his employer explain the reasons for his being fired was a complete defense to a defamation action based on the employer=s explanation for the termination. In Charles, the Department of Children and Families fired an employee. At his formal dismissal hearing, the employee repeatedly asked why he was being dismissed. In response, a Department human resources employee stated he was being fired because of his Acriminal lifestyle.@ The employee sued the Department and the person who made the alleged defamatory remark. The fired employee alleged the remark was untrue and made with express malice or improper purpose. The trial court granted judgment for the defendants.
The Florida appellate court noted this was a case of Ainvited defamation@ which is a complete defense to a defamation lawsuit. AApplying the invited defamation defense in an employment setting such as this encourages employers to be forthright in stating their reasons for a negative employment decision,@ the court said.
The moral of the story is beware of what you ask for! Once an ex-employee asks why he is was fired, he consents to the publication of the response, even if the statement is made with malice. However, the statement cannot go beyond the response requested. LEGISLATIVE UPDATE SB 2632 prohibits assessment lien actions until the owner=s delinquency exceeds $2,500. It will also prohibit the collection of attorney=s fees and costs in connection with a lien foreclosure action. Speak up and let your voices be heard. Contact your legislator. To find out who your legislator, is go to www.myflorida.com.
This information is provided for general information purposes only, may no be relied upon and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general comment of recent legal changes. This information is not legal advice, representation counsel or opinion. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected. 8 2005 by Gelfand & Arpe, P.A. |