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In a certain county in Florida there are several (4-5) 'Pool Cabanas'
available for purchase from the county.
These are made available for purchase for back taxes owed.
Once purchased from the county, the purchaser would hold a 'Tax Deed'.
Each of these Cabanas is in the same condo development where 'non-
cabana' standard 1-3 bedroom units sell for about $250k to about 1
million dollars.
Ordinarilly it is not possible to purchase a Cabana unless you already
own a standard unit in the building. Ordinailly when a purchase is
made in that building the purchaser must pass an interview. The board
would NEVER approve anyone to own a Cabana if they did not already own
a 'standard unit'.
In the legal description for the each cabana it states that the cabana
owner also owns a small interest in the 'Common Elemets' of the condo
development.
SO... Here is my question. If I purchase a cabana along with the
included persentage ownership of the common elements, can the condo
association legally prevent me from accessing my cabana and the common
elements of the property?
Please let me know. Email TonyInClearwater --AT-- yahoo.com
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In article <im4fu35h3tis3gl0lihneer6rt0koicv2a@4ax.com>,
TonyInClearwater <tonyinclearwater@yahoo.com> wrote:
[[ a question about tax sale purchases in a condo community ]]
The condo association holds an option to buy / right of first refusal
on _every_ sales transaction involving a property that is part of the
association.
If you buy at a tax sale, you still have the associations first-refusal
issue to deal with. They can chose to _exercise_ their option, and buy
the property from the seller _at_the_price_ you agreed to pay. And you're
SOL.
THAT is what the 'approval' process is -- they interview you, and if you are
deemed 'acceptable', they then decide _not_ to exercise the option, and let
you complete the purchase.
They could also enter into a contract with the 'former' owner to buy out his
interest for a very nominal sum, and then, on their own, pay off the back
taxes, voiding the 'tax deed', and ,with clear title re-established, execute
the contract with the prior owner.
Either way, you do not have ownership of the property, and they _can_ deny
you any access, since you are -not- an "owner" of anything.
NOTE" it is _likely_ that if the 'pool cabana' is up for tax sale, that the
'other unit' that the cabana owner owns is _also_ up for tax sale. One
obvious approach is to buy _both_ properties at the tax sale -- thereby
_greatly_ reducing the odds that the association would turn you down as an
'owner'.
Note: a 'tax deed' does -not- give you 'clear title' to the property at the
time you get the tax deed. If the 'back taxes owed' are paid off, you get
your money back 'with interest', but don't get ownership.
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On Mar 24, 7:39=A0am, TonyInClearwater <tonyinclearwa...@yahoo.com>
wrote:
SO... Here is my question. If I purchase a cabana along with the
included persentage ownership of the common elements, can the condo
association legally prevent me from accessing my cabana and the common
elements of the property?
It depends on what the laws of the state of Florida say (which would
take precedence over the condo's bye-laws.) You may want to consult a
local lawyer who specializes in real estate law before bidding,
especially if there is a lot of money involved.
The restrictions on the initial sale don't change the fact that the
apartment and the cabana are two separate pieces of property... and as
a general rule the condo association can't prevent the state (or a
mortgage lender) from selling off the cabanas which fall into their
hands after the owner defaults on his or her debts. And as ageneral
rule the condo association can't prevent the new owner from using
their property (although they can restrict from, for example, living
there full-time.) Even if you can't actually use the cabana (highly
unlikely) you can at least try to sell it to a current resident.
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Tony,
There are some "pool cabanas" available in a tax auction. These cabanas
are located in a condo. While you do not define "pool cabana" it sounds as
if these are small structures located near the condo's pool. You contemplate
buying one and ask for advice.
First, what are you buying? Is the cabana a free standing structure that
you wish to remove from the site and rebuild elsewhere. If so I'd check to
be sure trhat the condo will allow you to remove the cabana in a timely
fashion by allowing work crews access.
If the cabana is not a free standing, easily removable structure, will
you have access? I'd bet, yes but I'd also suspect that you may not have any
rights to use the rest of the pool facilities.. So you probably can walk to
your cabana and watch everyone else having fun.
You need to do a lot more homework before you bid on these cabanas. I
suspect that they have no value "on site" to someone who does not live at
the condo. So, can you resell this to someone in the condo or remove it and
erect it elsewhere?
Good luck,
Dave M.
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bonomi@host122.r-bonomi.com (Robert Bonomi) wrote:
[[ a question about tax sale purchases in a condo community ]]
The condo association holds an option to buy / right of first
refusal on _every_ sales transaction involving a property that is
part of the association.
If you buy at a tax sale, you still have the associations
first-refusal issue to deal with. They can chose to _exercise_
their option, and buy the property from the seller _at_the_price_
you agreed to pay. And you're SOL.
I find that very hard to believe. A right of first refusal is
effective between the parties, but not as against third parties. The
county has the right to sell the property to pay the taxes, and the
buyer has the rights of ownership.
Yes, under some circumstances a former owner has a right of redemption.
Local law must be looked at to determine if that right exists, and of
so, exactly what those rights are.
Stu
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In article <9thhu3ta9mb5gdhhjd24gpvcfukn730p6q@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
In article <im4fu35h3tis3gl0lihneer6rt0koicv2a@4ax.com>,
TonyInClearwater <tonyinclearwater@yahoo.com> wrote:
[[ a question about tax sale purchases in a condo community ]]
The condo association holds an option to buy / right of first refusal
on _every_ sales transaction involving a property that is part of the
association.
Does that hold against the state tax authorities? I'd think it's by
contract with the defaulting owner, and the state tax authority is
senior.
They could also enter into a contract with the 'former' owner to buy out his
interest for a very nominal sum, and then, on their own, pay off the back
taxes, voiding the 'tax deed', and ,with clear title re-established, execute
the contract with the prior owner.
Why don't they do that anyway? (Maybe the market is way down, and
they don't have the money to play with.)
Note: a 'tax deed' does -not- give you 'clear title' to the property at the
time you get the tax deed. If the 'back taxes owed' are paid off, you get
your money back 'with interest', but don't get ownership.
That varies by state, especially the amount of time the previous owner
has to clear the tax debt.
Seth
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Seth,
They could also enter into a contract with the 'former' owner to buy out
his
interest for a very nominal sum, and then, on their own, pay off the back
taxes, voiding the 'tax deed', and ,with clear title re-established,
execute
the contract with the prior owner.
Why don't they do that anyway? (Maybe the market is way down, and
they don't have the money to play with.)
This is pure speculation but the fact that there are 5 cabanas up for
auction suggests to me that all 5 are owned by the same agency. I suspect
that the condo entered into an agreement to build these things and then no
one bought them. I don't know why the OP wants them but I'd guess that thery
have little re-sale value since the condo residents probably have had years
to haggle over price and buy them.
Note: a 'tax deed' does -not- give you 'clear title' to the property at
the
time you get the tax deed.
This is an important point. They building contractors may have liens on
these. The sale does not forgive the liens.
If the 'back taxes owed' are paid off, you get
your money back 'with interest', but don't get ownership.
That varies by state, especially the amount of time the previous owner
has to clear the tax debt.
My understanding is that In Florida, the tax deed auction is ends the
previous owners rights. The previous owner had 22 mon. to clear up the tax
mess but that period lapses before the auction is held.
Good luck,
Dave M.
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In article <prbku3p6i8mhur9t000flef94d1tapqbc2@4ax.com>,
Stuart Bronstein <spamtrap@lexregia.com> wrote:
bonomi@host122.r-bonomi.com (Robert Bonomi) wrote:
I find that very hard to believe.
..ead some condo docs. *CAREFULLY* <wry grin>
A right of first refusal is
effective between the parties, but not as against third parties. The
county has the right to sell the property to pay the taxes, and the
buyer has the rights of ownership.
When a party buys into a condo, _at_the_time_of_their_purchase_ they
give the association the option-to-buy/right-of-first-refusal on any
subsequent sale. The county, to satisfy the buyer's debt to the county,
can only 'confiscate' that which the buyer owns. Effectively, the
association's right is 'senior' to the ownership interest of the tax
defaulter.
Note: by 'logical extension' of your argument, the property purchased
at the tax sale would no longer be 'part of' the association -- there
would be nothing binding the new owner to pay the association assessments,
nor abide by any of the association covenants, bylaws, or regulations.
And the Assoc. could not asses penalties for violations, nor seize the
property themselves, for non-payment of assessments.
Yes, under some circumstances a former owner has a right of redemption.
In the case of a 'tax sale', almost invariably, and for a period of several
years. 'Clear title' generally transfers _only_ after the expiration of
the redemption period.
Local law must be looked at to determine if that right exists, and of
so, exactly what those rights are.
Absolutely correct. :)
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In article <v00vu31guqnlohujs9sogt92b40uqhanqg@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
When a party buys into a condo, _at_the_time_of_their_purchase_ they
give the association the option-to-buy/right-of-first-refusal on any
subsequent sale. The county, to satisfy the buyer's debt to the county,
can only 'confiscate' that which the buyer owns. Effectively, the
association's right is 'senior' to the ownership interest of the tax
defaulter.
There is some property. The nominal owner owns only some of the
rights, the condo owns other rights. But the tax is on the
_property_, so a tax seizure/sale should grab all the rights.
What if I give my brother an option to buy my condo for $1? Does that
mean I don't have to pay taxes, because he can exercise the option if
it's seized?
Seth
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In article <rp4cv3pfdk4rnmqf5ea4qgij9inqpd8gg2@4ax.com>,
Seth <sethb@panix.com> wrote:
In article <v00vu31guqnlohujs9sogt92b40uqhanqg@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
There is some property. The nominal owner owns only some of the
rights, the condo owns other rights. But the tax is on the
_property_, so a tax seizure/sale should grab all the rights.
Therefore, the purchaser at a tax sale is no longer compelled to pay
condo association assessments, correct?
Let's follow that to it's "logical" <wink> conclusion:
Say you have a 100 unit condo building. 99 of the owners let their units
go to tax sale. And every tax-defaulting owner =buys= a different unit in
that building at the tax sale. Since "all" rights have been grabbed -- says
you -- they don't _have_ to pay any association or other 'operating' fees.
Hence the single 'legitimate' owner is stuck with _all_ the operational and/or
maintenance costs for the entire building. He can't afford to pay all
the expenses, and cannot find a buyer at _any_ price (because of the huge
'association' liability). So _he_ defaults on *his* taxes, *INCLUDING* the
association property. and lets the government seize THAT, too. Now, the
expenses of both the association and that 'last unit' are far higher than
the value of those 'assets', so =nobody= bids on them at the tax sale.
The state is stuck owning the property *AND*, as the successor owner,
has to fulfill the requirements set out in the Association 'Articles',
'Covenants', and the title restrictions on the units.
For some reason, I _don't_ regard that scenario as plausible. <grin>
Either the seizure has severed the association's rights, or it has _not_.
What if I give my brother an option to buy my condo for $1? Does that
mean I don't have to pay taxes, because he can exercise the option if
it's seized?
You don't _have_ to, but the tax debt 'runs with the land', and if he
exercises his $1 option after a tax seizure, then -he- has the accumulated
tax debt to pay. Or, they'll simply seize (what is now) _his_ property for
the indebtedness.
A 'junior' claim does -not- extinguish a 'senior' claim.
A 'senior' claim _can_, but not necessarily _does_/_will_, extinguish a 'junior'
claim.
Tax indebtedness on a condo is, effectively, an -inextinguishable- junior
claim relative to the senior rights of the association.
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bonomi@host122.r-bonomi.com (Robert Bonomi) wrote:
Seth <sethb@panix.com> wrote:
Therefore, the purchaser at a tax sale is no longer compelled to
pay condo association assessments, correct?
If the purchaser is the county, I don't know. But the county is
never an owner. It has the power by law to transfer title to a buyer
on behalf of the current owner. The new owner would be bound by the
terms of any recorded covenants, conditions and restrictions. If
there are none, the new buyer is not bound.
Let's follow that to it's "logical" <wink> conclusion:
Say you have a 100 unit condo building. 99 of the owners let
their units go to tax sale. And every tax-defaulting owner =buys=
a different unit in that building at the tax sale. Since "all"
rights have been grabbed -- says you --
Apparently you have either misunderstood or twisted the argument.
That is not what was said.
Either the seizure has severed the association's rights, or it has
_not_.
A tax sale severs some rights of both the former owner and the
association - perhaps not all. The association's retained right are
those it had by contract or law against the former owner, and rights
of control contained in the CC&R's. But a personal contract right
against a former owner does not necessarily apply to other parties,
depending on the facts.
Tax indebtedness on a condo is, effectively, an -inextinguishable-
junior claim relative to the senior rights of the association.
Some rights of the association may be senior, but others are not.
Are you saying that a lender with a mortgage can't conduct a
foreclosure sale without the permission of a condo association?
Sorry, but that's not the law.
Stu
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In article <c9pev3hnfogkvts3a5ndceju62ocvmolud@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
In article <rp4cv3pfdk4rnmqf5ea4qgij9inqpd8gg2@4ax.com>,
Seth <sethb@panix.com> wrote:
Therefore, the purchaser at a tax sale is no longer compelled to pay
condo association assessments, correct?
He's not required to pay _back_ condo assessments.
Let's follow that to it's "logical" <wink> conclusion:
If he doesn't pay current ones, he loses the right to use the common
space (which, in cases like mine, would mean he can't get to his
property).
What if I give my brother an option to buy my condo for $1? Does that
mean I don't have to pay taxes, because he can exercise the option if
it's seized?
You don't _have_ to, but the tax debt 'runs with the land', and if he
exercises his $1 option after a tax seizure, then -he- has the accumulated
tax debt to pay.
After the tax seizure and sale, surely the tax debt is released.
Or, they'll simply seize (what is now) _his_ property for
the indebtedness.
A 'junior' claim does -not- extinguish a 'senior' claim.
A 'senior' claim _can_, but not necessarily _does_/_will_, extinguish a 'junior'
claim.
Tax indebtedness on a condo is, effectively, an -inextinguishable- junior
claim relative to the senior rights of the association.
Interesting.
Seth
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On Sat, 05 Apr 2008 07:42:16 -0400, bonomi@host122.r-bonomi.com (Robert Bonomi)
wrote:
Say you have a 100 unit condo building. 99 of the owners let their units
go to tax sale. And every tax-defaulting owner =buys= a different unit in
that building at the tax sale. Since "all" rights have been grabbed -- says
you -- they don't _have_ to pay any association or other 'operating' fees.
Hence the single 'legitimate' owner is stuck with _all_ the operational and/or
maintenance costs for the entire building. He can't afford to pay all
the expenses, and cannot find a buyer at _any_ price (because of the huge
'association' liability). So _he_ defaults on *his* taxes, *INCLUDING* the
association property. and lets the government seize THAT, too. Now, the
expenses of both the association and that 'last unit' are far higher than
the value of those 'assets', so =nobody= bids on them at the tax sale.
The state is stuck owning the property *AND*, as the successor owner,
has to fulfill the requirements set out in the Association 'Articles',
'Covenants', and the title restrictions on the units.
For some reason, I _don't_ regard that scenario as plausible. <grin>
Either the seizure has severed the association's rights, or it has _not_.
I'm not sure it can. Perhaps someone with some experience in property law
can enlighten us, but it seems when they split the original lot into separate
units, each unit would have been burdened by some kind of reciprocal easement
or servitude in relation to the other lot owners. Each tenement would be
dominant to the extent it would be allowed to enjoy the benefits of belonging to
the association and servient to the extent it would be obligated to pay the
association for these benefits.
My guess is that in this situation, the government could only seize what the
owner actually owned. This would not include the obligation to pay the
association, which properly belongs to all the other tenements. It would,
I speculate, include the right to benefit from membership in the association,
i.e. to have its interests represented in court by the association, to benefit
intangibly from the uniformity of the other tenements, increase in property
value, etc., and it does not seem that this benefit should exist without its
corresponding obligation.
I would imagine that short of some series of legal events that effectively
completely severed any connection between the properties and destroyed
any association that they had, that anyone owning one or more of the tenements
would be obligated and benefited by the same easements and/or servitudes
as the original purchaser of the single unit(s). (I.e. the entire structure is
condemned under eminent domain and bulldozed or something similar in
legal effect.)
This post should not be taken seriously as legal material. It is mere
idle rambling.
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In article <uhihv35nl0arngaig8n3knslv036hsehk8@4ax.com>,
Stuart Bronstein <spamtrap@lexregia.com> wrote:
Some rights of the association may be senior, but others are not.
Are you saying that a lender with a mortgage can't conduct a
foreclosure sale without the permission of a condo association?
Sorry, but that's not the law.
They _can_ conduct the foreclosure sale. *BUT* the association _still_
has the right of first-refusal on the purchase. Been there, done that.
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In article <1iihv31moga8vkmq4urbij78109vrrtu03@4ax.com>,
henri <henri@nowhere.com> wrote:
I'm not sure it can. Perhaps someone with some experience in property law
can enlighten us, but it seems when they split the original lot into separate
units, each unit would have been burdened by some kind of reciprocal easement
or servitude in relation to the other lot owners. Each tenement would be
dominant to the extent it would be allowed to enjoy the benefits of belonging to
the association and servient to the extent it would be obligated to pay the
association for these benefits.
That leads to an interesting hypothetical.
There's a condo of 100 separate units, with some common amenities
(tennis courts, swimming pool, and the like). The government takes 10
units by eminent domain to expand a highway. Clearly it has to pay
the owners of those units; but does it have to pay the owners of the
other 90 units, because it's seizing their right to have 10% of the
common costs paid by the seized units? (That is, they each go from
paying 1/100 of the common costs to 1/90 of them due to government
action.)
Seth
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On Apr 8, 7:37 am, se...@panix.com (Seth) wrote:
That leads to an interesting hypothetical.
There's a condo of 100 separate units, with some common amenities
(tennis courts, swimming pool, and the like). The government takes 10
units by eminent domain to expand a highway.
I don't think that could happen, because of what a condominium _is_.
It is not just a homeowner's association or a planned unit development
with common areas and covenants; your hypo might indeed apply in such
a situation, but not to a condo. The word "condominium" literally
means "shared dominion" - each "unit owner" has an undivided yet
shared dominion (ownership) over the whole property and also
exclusively "owns" the interior space within the walls of his unit.
At common law, the only way more than one person could own a single
piece of property was to be joint tenants, or tenants in common of the
whole, each of whom had a right to occupy the entire premises
simultaneously - one could not exclude the other. There was no way at
common law for party X to exclusively own the ground floor, party Y
the second floor, and party Z the third floor of an apartment
building. The condominium statutes override common law and permit
such a form of shared ownership.
So, in your hypo, if the government "takes" from the condominium, they
will have to compensate the entire condominium. If we're talking a
single apartment building, they can't just tear down 10 units and
leave the other 90 standing; they will have to buy out the whole
building and tear it down. If it's a condo with freestanding single-
family units or rowhouses (not stacked on top of one another on
different floors) the individual unit owners still only "own" the
space within their walls; the outer shell of each home, and all the
grounds thereof, belong to the condo association as a whole. The gov
may be physically able to tear down only some of the units, who would
get compensated for their individual losses of interior space, but the
gov still need to compensate the entire condominium for the taking of
condominium property surrounding those units. The valuation of that
loss would presumably also take into account the effect on the
remaining individual units.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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