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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.
(a)
To be valid, a claim of lien must state the description of the parcel,
the name of the record owner, the name and address of the association, the
assessment amount due, and the due date. The claim of lien shall secure
all unpaid assessments that are due and that may accrue subsequent to the
recording of the claim of lien and before entry of a certificate of title,
as well as interest, late charges, and reasonable costs and attorney's
fees incurred by the association incident to the collection process. The
person making the payment is entitled to a satisfaction of the lien upon
payment in full.
(b) By
recording a notice in substantially the following form, a parcel owner or
the parcel owner's agent or attorney may require the association to
enforce a recorded claim of lien against his or her parcel:
NOTICE OF CONTEST OF LIEN
TO: (Name and address of association)
You are notified that the undersigned contests the claim of lien filed by
you on _____, (year) , and recorded in Official Records
Book _____ at page _____, of the public records of _____ County, Florida,
and that the time within which you may file suit to enforce your lien is
limited to 90 days following the date of service of this notice. Executed
this _____ day of _____, (year) .
Signed: (Owner or Attorney)
After the notice of a contest of lien has been recorded, the clerk of the
circuit court shall mail a copy of the recorded notice to the association
by certified mail, return receipt requested, at the address shown in the
claim of lien or the most recent amendment to it and shall certify to the
service on the face of the notice. Service is complete upon mailing. After
service, the association has 90 days in which to file an action to enforce
the lien and, if the action is not filed within the 90-day period, the
lien is void. However, the 90-day period shall be extended for any length
of time that the association is prevented from filing its action because
of an automatic stay resulting from the filing of a bankruptcy petition by
the parcel owner or by any other person claiming an interest in the
parcel.
(c) The association may bring an action in its name to
foreclose a lien for assessments in the same manner in which a mortgage of
real property is foreclosed and may also bring an action to recover a
money judgment for the unpaid assessments without waiving any claim of
lien. The association is entitled to recover its reasonable attorney's
fees incurred in an action to foreclose a lien or an action to recover a
money judgment for unpaid assessments.
(d) If the parcel owner remains in possession of the parcel
after a foreclosure judgment has been entered, the court may require the
parcel owner to pay a reasonable rent for the parcel. If the parcel is
rented or leased during the pendency of the foreclosure action, the
association is entitled to the appointment of a receiver to collect the
rent. The expenses of the receiver must be paid by the party who does not
prevail in the foreclosure action.
(e) The association may purchase the parcel at the foreclosure
sale and hold, lease, mortgage, or convey the parcel.
(2)(a) A
parcel owner, regardless of how his or her title to property has been
acquired, including by purchase at a foreclosure sale or by deed in lieu
of foreclosure, is liable for all assessments that come due while he or
she is the parcel owner. The parcel owner's liability for assessments may
not be avoided by waiver or suspension of the use or enjoyment of any
common area or by abandonment of the parcel upon which the assessments are
made.
(b) A parcel owner is jointly and severally liable with the
previous parcel owner for all unpaid assessments that came due up to the
time of transfer of title. This liability is without prejudice to any
right the present parcel owner may have to recover any amounts paid by the
present owner from the previous owner.
(c) Notwithstanding anything to the contrary contained in this
section, the liability of a first mortgagee, or its successor or assignee
as a subsequent holder of the first mortgage who acquires title to a
parcel by foreclosure or by deed in lieu of foreclosure for the unpaid
assessments that became due before the mortgagee's acquisition of title,
shall be the lesser of:
1. The parcel's unpaid common expenses and regular periodic or
special assessments that accrued or came due during the 12 months
immediately preceding the acquisition of title and for which payment in
full has not been received by the association; or
2. One percent of the original mortgage debt.
The limitations on first mortgagee liability provided by this paragraph
apply only if the first mortgagee filed suit against the parcel owner and
initially joined the association as a defendant in the mortgagee
foreclosure action. Joinder of the association is not required if, on the
date the complaint is filed, the association was dissolved or did not
maintain an office or agent for service of process at a location that was
known to or reasonably discoverable by the mortgagee.
(3) Assessments and installments on assessments that are not
paid when due bear interest from the due date until paid at the rate
provided in the declaration of covenants or the bylaws of the association,
which rate may not exceed the rate allowed by law. If no rate is provided
in the declaration or bylaws, interest accrues at the rate of 18 percent
per year.
(a) If the declaration or bylaws so provide, the association
may also charge an administrative late fee in an amount not to exceed the
greater of $25 or 5 percent of the amount of each installment that is paid
past the due date.
(b) Any payment received by an association and accepted shall
be applied first to any interest accrued, then to any administrative late
fee, then to any costs and reasonable attorney's fees incurred in
collection, and then to the delinquent assessment. This paragraph applies
notwithstanding any restrictive endorsement, designation, or instruction
placed on or accompanying a payment. A late fee is not subject to the
provisions of chapter 687 and is not a fine.
(4) A homeowners' association may not file a record of lien
against a parcel for unpaid assessments unless a written notice or demand
for past due assessments as well as any other amounts owed to the
association pursuant to its governing documents has been made by the
association. The written notice or demand must:
(a) Provide the owner with 45 days following the date the
notice is deposited in the mail to make payment for all amounts due,
including, but not limited to, any attorney's fees and actual costs
associated with the preparation and delivery of the written demand.
(b) Be sent by registered or certified mail, return receipt
requested, and by first-class United States mail to the parcel owner at
his or her last address as reflected in the records of the association, if
the address is within the United States, and to the parcel owner subject
to the demand at the address of the parcel if the owner's address as
reflected in the records of the association is not the parcel address. If
the address reflected in the records is outside the United States, then
sending the notice to that address and to the parcel address by
first-class United States mail is sufficient.
(5) The association may bring an action
in its name to foreclose a lien for unpaid assessments secured by a lien
in the same manner that a mortgage of real property is foreclosed and may
also bring an action to recover a money judgment for the unpaid
assessments without waiving any claim of lien. The action to foreclose the
lien may not be brought until 45 days after the parcel owner has been
provided notice of the association's intent to foreclose and collect the
unpaid amount. The notice must be given in the manner provided in
paragraph (4)(b), and the notice may not be provided until the passage of
the 45 days required in paragraph (4)(a).
(a) The association may recover any interest, late charges,
costs, and reasonable attorney's fees incurred in a lien foreclosure
action or in an action to recover a money judgment for the unpaid
assessments.
(b) The time limitations in this subsection do not apply if the
parcel is subject to a foreclosure action or forced sale of another party,
or if an owner of the parcel is a debtor in a bankruptcy proceeding.
(6) If after service of a summons on a
complaint to foreclose a lien the parcel is not the subject of a mortgage
foreclosure or a notice of tax certificate sale, the parcel owner is not a
debtor in bankruptcy proceedings, or the trial of or trial docket for the
lien foreclosure action is not set to begin within 30 days, the parcel
owner may serve and file with the court a qualifying offer at any time
before the entry of a foreclosure judgment. For purposes of this
subsection, the term "qualifying offer" means a written offer to
pay all amounts secured by the lien of the association plus amounts
accruing during the pendency of the offer. The parcel owner may make only
one qualifying offer during the pendency of a foreclosure action. If a
parcel becomes the subject of a mortgage foreclosure or a notice of tax
certificate sale while a qualifying offer is pending, the qualifying offer
becomes voidable at the election of the association. If the parcel owner
becomes a debtor in bankruptcy proceedings while a qualifying offer is
pending, the qualifying offer becomes void.
(a) The parcel owner shall deliver a copy of the filed
qualifying offer to the association's attorney by hand delivery, obtaining
a written receipt, or by certified mail, return receipt requested.
(b) The parcel owner's filing of the qualifying offer with the
court stays the foreclosure action for the period stated in the qualifying
offer, which may not exceed 60 days following the date of service of the
qualifying offer and no sooner than 30 days before the date of trial,
arbitration, or the beginning of the trial docket, whichever occurs first,
to permit the parcel owner to pay the qualifying offer to the association
plus any amounts accruing during the pendency of the offer.
(c) The qualifying offer must be in writing, be signed by all
owners of the parcel and the spouse of any owner if the spouse resides in
or otherwise claims a homestead interest in the parcel, be acknowledged by
a notary public, and be in substantially the following form:
QUALIFYING OFFER AUTOMATIC STAY INVOKED PURSUANT TO F.S. 720.3085
I/We, [Name(s) of Parcel Owner(s)], admit the following:
1. The total amount due the association is secured by the lien
of the association.
2. The association is entitled to foreclose its claim of lien
and obtain a foreclosure judgment for the total amount due if I/we breach
this qualifying offer by failing to pay the amount due by the date
specified in this qualifying offer.
3. I/We will not permit the priority of the lien of the
association or the amounts secured by the lien to be endangered.
4. I/We hereby affirm that the date(s) by which the association
will receive $ [specify amount] as the total amount due is [specify date,
no later than 60 days after the date of service of the qualifying offer
and at least 30 days before the trial or arbitration date], in the
following amounts and dates:
5. I/We hereby confirm that I/we have requested and have
received from the homeowners' association a breakdown and total of all
sums due the association and that the amount offered above is equal to or
greater than the total amount provided by the association.
6. This qualifying offer operates as a stay to all portions of
the foreclosure action which seek to collect unpaid assessments as
provided in s. 720.3085.
Signed: (Signatures of all parcel owners and spouses, if any)
Sworn to and subscribed this (date) day of (month) ,
(year) , before the undersigned authority.
Notary Public: (Signature of notary public)
If the parcel owner makes a qualifying offer under this subsection, the
association may not add the cost of any legal fees incurred by the
association within the period of the stay other than costs acquired in
defense of a mortgage foreclosure action concerning the parcel, a
bankruptcy proceeding in which the parcel owner is a debtor, or in
response to filings by a party other than the association in the lien
foreclosure action of the association.
(7) If the parcel owner breaches the qualifying offer, the stay
shall be vacated and the association may proceed in its action to obtain a
foreclosure judgment against the parcel and the parcel owners for the
amount in the qualifying offer and any amounts accruing after the date of
the qualifying offer.
(8) If the parcel is occupied by a tenant and the parcel owner is delinquent in paying any monetary obligation due to the association, the association may demand that the tenant pay to the association the future monetary obligations related to the parcel. The demand is continuing in nature, and upon demand, the tenant must continue to pay the monetary obligations until the association releases the tenant or the tenant discontinues tenancy in the parcel. A tenant who acts in good faith in response to a written demand from an association is immune from any claim from the parcel owner.
(a) If the tenant prepaid rent to the parcel owner before receiving the demand from the association and provides written evidence of paying the rent to the association within 14 days after receiving the demand, the tenant shall receive credit for the prepaid rent for the applicable period and must make any subsequent rental payments to the association to be credited against the monetary obligations of the parcel owner to the association. The association shall, upon request, provide the tenant with written receipts for payments made. The association shall mail written notice to the parcel owner of the association’s demand that the tenant pay monetary obligations to the association.
(b) The tenant is not liable for increases in the amount of the monetary obligations due unless the tenant was notified in writing of the increase at least 10 days before the date on which the rent is due. The tenant shall be given a credit against rents due to the parcel owner in the amount of assessments paid to the association.
(c) The association may issue notices under s. 83.56 and may sue for eviction under ss. 83.59-83.625 as if the association were a landlord under part II of chapter 83 if the tenant fails to pay a monetary obligation. However, the association is not otherwise considered a landlord under chapter 83 and specifically has no duties under s. 83.51.
(d) The tenant does not, by virtue of payment of monetary obligations, have any of the rights of a parcel owner to vote in any election or to examine the books and records of the association.
(e) A court may supersede the effect of this subsection by appointing a receiver.
History.--s.
1, ch. 2007-183; s. 1, ch. 2008-175. |