2008 Legislative Update - Part 5: Homeowners Associations

In Part 1 of this series, we discussed the new form which must be signed by persons who wish to be candidates for condominium board positions.   In Part 2 we discussed the new insurance laws which apply to condominiums.  In Part 3 we discussed the new laws regarding condominiums and the use of solar energy.  In Part 4 we discussed the new flag laws which impact homeowners associations. In this part we discuss the 2008 amendments which affect the collection of homeowner’s association assessments.

ASSESSMENT COLLECTION BY HOMEOWNERS ASSOCIATIONS

SECTION 720.3085

             Last year the Legislature enacted Section 720.3085, Florida Statutes as its first attempt to regulate assessment collections by homeowner associations.   This year the Legislature substantially amended Section 720.3085 to make it more consistent with the Condominium Act.  Important aspects of now existing Section 720.3075 are as follows:

             a.         The power to lien must be found in your governing documents in order for a lien to be valid.

             b.         All liens must now contain certain designated data in order to be valid (e.g. name of owner, name and address of the HOA)

             c.         A procedure is created by which a debtor can record a notice of contest of lien, challenging the lien and requiring the HOA to file an action to enforce the lien within ninety (90) days of service of the notice.  If the HOA fails to file within ninety (90) days, the lien is void.

             d.         It is confirmed that liens are to be foreclosed in the same manner as mortgages are to be foreclosed.

             e.         It provides that if a foreclosure action is filed by the Association and the parcel is rented during the pendency of the lawsuit, the Association can apply to the Court for 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.          It permits HOAs to purchase parcels at foreclosure sales and further permits them to hold, lease, mortgage or convey any parcels so purchased.

             g.         Provides that a purchaser is liable for all assessments that came due up to the time of acquiring title, but incorporates an exception for first mortgagees which is similar, but not identical, to the Condominium Act.  If the first  mortgagee files suit against the parcel owner and joins the Association as a defendant in its foreclosure action, then if the first mortgagee acquires title it is liable  only for unpaid common expenses, regular periodic and special assessments that  came due during the twelve (12) months prior to acquiring title, or one percent (1%) of the original mortgage debt, whichever is the lesser.

             h.         Provides for the payment of interest, even if the governing documents do not so provide and further provides for administrative late fees up to established limits if the governing documents permit such fees to be charged.

             i.          Provides for how partial payments are to be applied to the debt.

             j.          Mandates a forty-five (45) day notice to the delinquent owners prior to recording any HOA liens.

             k.         Mandates a second forty-five (45) day notice to the delinquent owners prior to filing any HOA foreclosure lawsuits. 

             l.          Provides for “qualifying offers” which permits debtors to serve a written offer on the Association agreeing to pay all delinquent assessments, attorney fees and costs, in return for the obligation of the Association to stop the lawsuit for up to sixty (60) days. 

 The firm of Taylor & Carls, P.A., with offices located in Maitland, Clearwater and Palm Coast, Florida, was founded in 1981 and has practiced in the area of community association law since that date.  This edition was prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A.  The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.  The opinions expressed herein are as of the date hereof, and this law firm undertakes no obligation to advise the Association of subsequent changes in the law.


©2008 Taylor & Carls, P.A.  All Rights Reserved.

The firm can be reached Toll Free at 1-800-395-6235 or locally at 407-660-1040.

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