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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 secures 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 fees
incurred by the association incident to the collection process. The
person making 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)
A release of lien must be in
substantially the following form:
RELEASE OF LIEN
The undersigned
lienor, in consideration of the final
payment in the amount of $ ,
hereby waives and releases its lien and
right to claim a lien for unpaid
assessments through
,
(year) , recorded in the
Official Records Book
at Page
,
of the public records of
County, Florida, for the following
described real property:
(PARCEL NO.
OR LOT AND BLOCK) OF
(subdivision name)
SUBDIVISION AS SHOWN IN THE PLAT
THEREOF, RECORDED AT PLAT BOOK
,
PAGE
,
OF THE OFFICIAL RECORDS OF
COUNTY, FLORIDA.
(or insert appropriate metes and
bounds description here)
(Signature of Authorized Agent) (Signature
of Witness)
(Print Name) (Print
Name)
(Signature of Witness)
(Print Name)
Sworn to (or
affirmed) and subscribed before me this
day of
,
(year) , by
(name of person making statement) .
(Signature of Notary Public)
(Print, type, or stamp commissioned
name of Notary Public)
Personally Known
OR Produced
as identification.
(e) 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.
(f) 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. For the purposes of this paragraph, the
term “previous owner” shall not include an association that acquires
title to a delinquent property through foreclosure or by deed in lieu of
foreclosure. The present parcel owner’s liability for unpaid assessments
is limited to any unpaid assessments that accrued before the association
acquired title to the delinquent property through foreclosure or by deed
in lieu of foreclosure.
(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.
(d) An association, or its successor or assignee, that acquires title to
a parcel through the foreclosure of its lien for assessments is not
liable for any unpaid assessments, late fees, interest, or reasonable
attorney’s fees and costs that came due before the association’s
acquisition of title in favor of any other association, as defined in s.
718.103(2) or s. 720.301(9), which holds a superior lien interest on the
parcel. This paragraph is intended to clarify existing law.
(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 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 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. The foregoing is applicable
notwithstanding s. 673.3111, any purported accord and satisfaction, or
any restrictive endorsement, designation, or instruction placed on or
accompanying a payment. The preceding sentence is intended to clarify
existing law.
(4)
A 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 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 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.
The foregoing is applicable notwithstanding
s. 673.3111, any purported accord and
satisfaction, or any restrictive
endorsement, designation, or instruction
placed on or accompanying a payment. The
preceding sentence is intended to clarify
existing law.
(c)1. If an association sends out an invoice
for assessments or a parcel’s statement of
the account described in s. 720.303(4)(j)2.,
the invoice for assessments or the parcel’s
statement of account must be delivered to
the parcel owner by first-class United
States mail or by electronic transmission to
the parcel owner’s e-mail address maintained
in the association’s official records.
2. Before changing the method of delivery
for an invoice for assessments or the
statement of the account, the association
must deliver a written notice of such change
to each parcel owner. The written notice
must be delivered to the parcel owner at
least 30 days before the association sends
the invoice for assessments or the statement
of the account by the new delivery method.
The notice must be sent by first-class
United States mail to the owner at his or
her last address as reflected in the
association’s records and, if such address
is not the parcel address, must be sent by
first-class United States mail to the parcel
address. Notice is deemed to have been
delivered upon mailing as required by this
subparagraph.
3. A parcel owner must affirmatively
acknowledge his or her understanding that
the association will change its method of
delivery of the invoice for assessments or
the statement of the account before the
association may change the method of
delivering an invoice for assessments or the
statement of account. The parcel owner may
make the affirmative acknowledgment
electronically or in writing.
(d) An association may not require payment
of attorney fees related to a past due
assessment without first delivering a
written notice of late assessment to the
parcel owner which specifies the amount owed
the association and provides the parcel
owner an opportunity to pay the amount owed
without the assessment of attorney fees. The
notice of late assessment must be sent by
first-class United States mail to the owner
at his or her last address as reflected in
the association’s records and, if such
address is not the parcel address, must also
be sent by first-class United States mail to
the parcel address. Notice is deemed to have
been delivered upon mailing as required by
this paragraph. A rebuttable presumption
that an association mailed a notice in
accordance with this paragraph is
established if a board member, officer, or
agent of the association, or a manager
licensed under part VIII of chapter 468,
provides a sworn affidavit attesting to such
mailing. The notice must be in substantially
the following form:
NOTICE OF LATE ASSESSMENT
RE: Parcel of (name of association)
The following amounts are currently due on
your account to (name of association) , and
must be paid within 30 days after the date
of this letter. This letter shall serve as
the association’s notice to proceed with
further collection action against your
property no sooner than 30 days after the
date of this letter, unless you pay in full
the amounts set forth below:
Maintenance due (dates) $ .
Late fee, if applicable $ .
Interest through (dates) * $ .
TOTAL OUTSTANDING $ .
*Interest accrues at the rate of percent per
annum.
(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). The
notice must be in substantially the
following form:
DELINQUENT ASSESSMENT
This letter is to inform you a Claim of Lien
has been filed against your property because
you have not paid the (type of assessment)
assessment to (name of association) . The
association intends to foreclose the lien
and collect the unpaid amount within 45 days
of this letter being provided to you.
You owe the interest accruing from
(month/year) to the present. As of the date
of this letter, the total amount due with
interest is $ . All costs of any action and
interest from this day forward will also be
charged to your account.
Any questions concerning this matter should
be directed to (insert name, addresses, and
telephone numbers of association
representative) .
(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) (a) 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 subsequent rental payments and
continue to make such payments until all
the monetary obligations of the parcel
owner related to the parcel have been
paid in full to the association and the
association releases the tenant or until
the tenant discontinues tenancy in the
parcel.
1. The association must provide the
tenant a notice, by hand delivery or
United States mail, in substantially the
following form:
Pursuant to section 720.3085(8), Florida
Statutes, we demand that you make your
rent payments directly to the
homeowners’ association and continue
doing so until the association notifies
you otherwise.
Payment due the homeowners’ association
may be in the same form as you paid your
landlord and must be sent by United
States mail or hand delivery to (full
address) , payable to (name) .
Your obligation to pay your rent to the
association begins immediately, unless
you have already paid rent to your
landlord for the current period before
receiving this notice. In that case, you
must provide the association written
proof of your payment within 14 days
after receiving this notice and your
obligation to pay rent to the
association would then begin with the
next rental period.
Pursuant to section 720.3085(8), Florida
Statutes, your payment of rent to the
association gives you complete immunity
from any claim for the rent by your
landlord.
2. A tenant is immune from any claim by
the parcel owner related to the rent
timely paid to the association after the
association has made written demand.
(b) If the tenant paid rent to the
landlord or parcel owner for a given
rental period before receiving the
demand from the association and provides
written evidence to the association of
having paid the rent within 14 days
after receiving the demand, the tenant
shall begin making rental payments to
the association for the following rental
period and shall continue making rental
payments to the association to be
credited against the monetary
obligations of the parcel owner until
the association releases the tenant or
the tenant discontinues tenancy in the
unit. 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.
(c) The liability of the tenant may not
exceed the amount due from the tenant to
the tenant’s landlord. The tenant shall
be given a credit against rents due to
the landlord in the amount of
assessments paid to the association.
(d) The association may issue notice
under s. 83.56 and 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 obligations under s.
83.51.
(e) 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.
(f) A court may supersede the effect of
this subsection by appointing a
receiver.
History.—s.
1, ch. 2007-183; s. 1, ch. 2008-175; s. 26, ch. 2010-174; s. 20, ch.
2011-196; s. 7, ch. 2013-218; s. 6, ch. 2014-146; s. 16, ch. 2018-96;
s.7, ch.2021-91 |