It is rare indeed when a state legislature does anything quite so bizarre as to enact a blatantly unconstitutional statute on such rare grounds as a “bill of attainder”, a “bill of pains and penalties” and/or an “Ex Post Facto Law”, but the Florida Legislature appears to have done just that. As my distinguished colleague and brilliant Texas constitutional counsel David A. Rogers wrote when I sent him a copy of Florida Statute 720.3085,
“Of course, as you know, the prohibitions on EPF in the non-criminal context are less than they are in the criminal context (where they are pretty much absolute), but I think this manages to be both an EPF law and a “taking without compensation” in violation of the 5th Amendment.”
§ 720.3085. Payment for assessments; lien claims
(1) When authorized by the governing documents, the association has a lien on each parcel to secure the payment of assessments and other amounts provided for by this section. Except as otherwise set forth in this section, the lien is effective from and shall relate back to the date on which the original declaration of the community was recorded. However, as to first mortgages of record, the lien is effective from and after recording of a claim of lien in the public records of the county in which the parcel is located. This subsection does not bestow upon any lien, mortgage, or certified judgment of record on July 1, 2008, including the lien for unpaid assessments created in this section, a priority that, by law, the lien, mortgage, or judgment did not have before July 1, 2008.
John Wolfgram thoughtfully shared his analysis:
1. Liens do not create foreclosure powers. They create a right of payment that must be honored before or at the time of selling the property.
2. I think that the last sentence prevents it from being an ex post facto law. Assuming the effective date of the statute was July 1, 2008, on its face it does not allow any lien to be effective under this statute before that date.
3. It does say when the governing document had to be in effect by the words “when authorized by the governing documents”. To the extent that they are not in effect, the governing documents do not authorize anything.
4. I don’t understand about a lien being imposed ten years after purchase. That would seem to create a statute of limitations problem. The lien must be for a currently viable debt governed by the originally filed documents.
With deep gratitude to John Wolfgram for his input, I do not think that the last sentence on priority saves the provision from being an Ex-Post Facto status at all. Nor do I think that John is right about the lack of true retroactive effect. F.S. 720.3085 is clearly both intended to be retroactive (creating the ex-post facto effect) and is so being applied by Florida Lawyers (no test cases yet in Court, according to Lexis, which I assume is infallible on this point…).
The law articulated here certainly doesn’t go on to say anything about “when authorized by the governing documents AT THE TIME OF PURCHASE or original acquisition of entry in the property…” That might save the provision from ex-post facto effect.
And, just as a side note: is this or is this NOT one of the highest quasi-governmental interest rates you’ve ever seen anywhere? OK, 18% on a Citibank MasterCard or VISA or even American Express “Sign & Travel” or “Optima” Card I can understand, but 18% on a Homeowners’ Assessment that has not even been reduced to Judgment? What interpretation can anyone place on this other than to say that the Florida Legislature really is trying to outlaw private property.
I think this is the real thing, a real constitutional outrage, and since every constitutionalist should be interested in Ex Post Facto Laws and Bills of Attainder…or legislative bills of pains and penalties.
And thanks to Bill Trudelle of Tampa who commented, “I think it is an excellent catch.” Also thanks to Bill for providing the citation to the Florida Supreme Court’s White Egret describing Homeowners’ Associations as “Little Democracies” (i.e. quasi-governmental entities exercising governmental power unconstitutionally as no government could do): White Egret V Franklin-Florida SCT-1979
Attached, finally, is the full text of Pearl Lanier Bryan’s comprehensive demand letter submitted today on this very point: Pearl Lanier Bryan to Patrick T Hinckley March 28, 2010.