by Tabitha S. Fish, Esq., Associate, Saxon, Gilmore, Carraway & Gibbons, P.A.
FAHROgram Article
July-August 2012
In July 2010, the Florida Legislature enacted three new statutes that have recently pitted Florida public housing authorities (PHAs) against homeowners’ associations, condominium associations and cooperative associations. The statutes can be found at § 718.116(11), 719.108(10) and 720.3085(8), Florida Statutes. While each statute differs slightly, the crux of the statutes is the same: Where the property is occupied by a tenant and the landlord refuses to pay delinquent association dues, the association is entitled to demand that the tenant pay its rent directly to the association until the delinquent dues are paid. The statutes provide protection to a tenant who makes payment directly to an association, after such demand has been made, against liability to the landlord. However, the statutes also allow the association to evict a tenant who does not comply with a demand pursuant to the statutes.
Under the Section 8 Housing Choice Voucher program, PHAs pay all or a portion of the rent for privately owned rental properties pursuant to a Housing Assistance Payment (HAP) contract between the PHA and the owner of the property. Tenants participating in Section 8 are responsible for paying directly to the owner any portion of the rent that is not covered by the PHA housing assistance payment. Section 8 tenants have no right to receive directly this HAP payment owed by the PHA pursuant to the HAP contract, nor is a tenant a party to or a third party beneficiary of the HAP contract. Many associations have made demands under the statutes to PHAs for the amounts due under a HAP contract as if the PHA were a tenant. However, the PHA is not a party to the dwelling lease agreement between the owner and the tenant for the rental property, nor is the PHA otherwise a tenant. Moreover, federal law and regulations provide that the PHA will pay housing assistance payments to the owner in accordance with the HAP contract and do not provide that such payments may be made to parties other than the owner. Read more…
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