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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 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,
simple interest accrues at the rate of 18 percent per year. Notwithstanding
the declaration or bylaws, compound interest may not accrue on assessments
and installments on assessments that are not paid when due.
(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)(a)10.b.,
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.
(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. The notice must be in substantially the
following form:
NOTICE OF INTENT
TO RECORD A CLAIM OF LIEN
RE: Parcel or (lot/block) (lot/parcel
number) of (name
of association)
The following amounts are
currently due on your account to (name
of association) ,
and must be paid within 45 days after your receipt of this letter. This
letter shall serve as the association's notice of intent to record a
Claim of Lien against your property no sooner than 45 days after your
receipt of this letter, unless you pay in full the amounts set forth
below:
Maintenance due (dates) $ .
Late fee, if applicable $ .
Interest through (dates) * $ .
Certified mail charges $ .
Other costs $ .
TOTAL OUTSTANDING $ .
*Interest accrues at the rate of percent
per annum.
(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). 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)
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.
(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.
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