Finding a Needle in the Haystack: Serving Defendants that Don't Want to be Found

January 13, 2020

Many board members take pride in knowing their neighbors. Maybe it's that pride that leads our clients to volunteer their time and energy to serve their community. However, it's getting more and more difficult to know your neighbors, let alone all the members of your community. An increasing percentage of homes purchased are now purchased by investors who have no intent of ever living in the home. So what happens when you need to notify the absentee owner of covenant violations or delinquent assessments?

Generally, Chapters 718 and 720 require that any notices be mailed both to the property address and the last known mailing address of the owner via regular and certified mail. However, mailing addresses aren't always updated. Investors will move or change addresses without notifying the association in writing very often, and aside from return mail, the association may never know that the address on record is no longer good.

Challenges with Litigation

In order to proceed in a civil lawsuit, Chapter 48, Fla. Stat., requires that the plaintiff serve the summons and complaint on the defendant. As a general rule, the process server must make sure that he or she is hand-delivering the documents to the person named as defendant. The process server may also effectuate service by leaving the documents at the defendant’s usual place of abode with any person residing therein who is 15 years of age or older, as long as he informs this person of the document’s contents. Even this, however, can be impossible if an owner is unable to be located (or evading service).

The alternative would be service by publication in the newspaper under Chapter 49, Fla. Stat. The plaintiff must be able to show that there was a diligent search and inquiry to discover the name and residence of the defendant. The question then becomes what efforts must a community association make to locate these absentee owners before it is considered a "diligent search."

Recent Case Development

A Court in Miami-Dade County considered this very issue of a diligent search in a homeowners association's lien foreclosure in Aventura Isles Master Homeowners Ass'n, Inc. v. Elder Lujan, et al., 2016-19170 CC 23 (2019). In this case Aventura Isles' attorney served a defendant in a lien foreclosure via publication after filing an affidavit attesting that a diligent search has been unsuccessful in locating the defendant. Plaintiff had attempted service at one address and testified that other efforts were made to locate the Defendant online. The Court ruled that Aventura Isles's search however was not diligent because: i) because the homeowner had made payments via "eCheck" the Association could have attempted to find the source of the payment; and ii) Aventura Isles had the homeowner's phone number and e-mail address and made no effort to contact Defendant in that manner.

Recommendations for Association Managers

While we may not necessarily agree with the Court's decision in this case, there are several important lessons to note. It is clearly good practice to fully document any email addresses or phone numbers used by a homeowner in contacting the association. Based on this ruling, it could be argued that an association has some responsibility beyond the statutory responsibility simply to mail notices to owners (at least at the litigation stage). Make sure that this contact information is provided to your law firm when they're handling your collections so the argument cannot be used against your community in the future.

How DHN Minimizes this Risk

In representing plaintiffs, your preference is always to serve defendants personally, and service by publication should only be considered your last resort. It is a necessary tool for us, but one to be used sparingly. We attempt to minimize this risk by obtaining skip traces on all homeowners PRIOR to initiating a lawsuit. While this is not required, this allows us the opportunity to confirm whether the mailing address we have on record is the most updated. Further, it is our practice, if we locate an additional address to send an additional written notice to this address prior to initiating our lawsuit. We have found that this is often very effective without incurring the costs of litigation.

If you have any questions about taking legal action against a member of your association that you can't locate, please contact us to discuss your options.

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