An Overview of Condominium Liens in Florida
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Condominium liens are strong tools granted by statute to condominium associations to ensure that unit owners timely pay their assessments for common expenses. The following is an overview of the basic premises of condo lien enforcement and defenses in Florida.
Association’s Right to Make Assessments
All condominium associations are granted the power to make and collect assessments. Assessments must be levied in the same proportion as a unit owner’s percentage ownership in the common elements. A unit owner’s percentage interest in the common elements is set forth in the declaration, and the proportional obligation to pay for common expenses cannot be changed without the unit owner’s prior consent. The community depends on assessments being timely paid to provide services and improvements to the community. Thus, to enforce the collection of assessments, associations have the right to impose a lien on a delinquent unit owner’s unit.
What is the legal authority for a condominium lien?
Condominium association liens are the product of statute, then of the declaration of condominium and then of the association’s bylaws. F.S. 718.116(1)(c), (5)(a).Pursuant to F.S. 718.116(5)(a)-(5)(b), the association has a lien on each unit to secure payment of any unpaid assessments, interest, late charges, and attorneys fees and costs incurred by the association “incident to the collection process.” F.S. 718.116(5)(b). Therefore, should the assessment remain outstanding, the association is entitled to record a claim of lien against the unit. Absent a specific covenant or statute, homeowners associations have no lien rights. An owner’s obligation to the association and to the other unit owners in the condominium includes the duty to timely pay for assessments to repair, replace and maintain the common elements. Pursuant to F.S. 718.1119(4) and 718.116(5), there is a right of the association to file and enforce a claim of lien against a unit owner if the unit owner does not pay his or her assessment. Assessment rights have been held to be property rights entitled to constitutional due process protection. Palm Beach County v. Cove Club Investors Ltd., 734 So.2d 379.
Must Be Related to Common Expenses
A condo association cannot record a claim of lien for items unrelated to common expenses. Ocean Beach Resort, Inc. v. Rodack, 586 So.2d 363 (Fla. 3d DCA 1991). Prior to legislative changes enacted in 2004, an association could record a lien to collect a fine. But changes to Florida legislation in that year prohibited associations from imposing liens to collect a fine. F.S. 720.305(2). The Condominium Act now specifically prohibits fines from being the basis for liens. F.S. 718.303(3). Declarations of Condominium cannot contain provisions that are inconsistent with the Act, and the Act authorizes assessments only for common expenses, not fines.
A condominium lien creates in interest in real property in favor of the association. Thus, only attorneys licensed by the Florida Bar – and not community association managers – may create liens. When non-attorneys file condominium liens, it constitutes the unauthorized practice of law. The condominium lien must state the description of the encumbered parcel, the amount due, the due dates or date and it must be signed by an officer or authorized agent of the association. There may be additional requirements for filing a lien found in the declaration of the condominium or the bylaws. The lien must be recorded in the public records of the county in which the property is located.
Are condominium liens exempt from the homestead exemption?
No. The homestead exemption does not exempt a unit owner who, due to failure to pay assessments, has a lien placed on his unit. There are two reasons for this. The first reason is that assessments are generally imposed for the improvement or repair of property. Thus, liens may attach based on language from Art. X Section 4, Fla. Const. which exempts homestead property from liens “except for the payment of… obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty.” The second reason is that declarations of condominium and covenants are recorded before an owner takes title. Thus, in those cases, the unit owner has subjected his homestead exemption to the provisions of the declaration which allow an association to file a claim of lien and foreclose.
Like construction liens, an action to foreclose a condominium lien must be brought within one year from the date the lien was recorded. If an action is not brought to foreclose the lien within one year, the lien is extinguished. However, the one year period may be reduced if a notice of lien contest is recorded. If an owner recorded a notice of contest of lien, a foreclosure action must be initiated within 90 days of the recording of the notice. Nothing but the automatic stay will toll the running of the one year date to enforce the condominium lien. If a condominium association lets its lien extiguish by the passage of one year, there are no statutory prohibitions to prevent the association from filing a new lien on a unit owner.
In most cases the only practical defense, assuming the assessment has been properly levied, is payment. Occasionally as association will waive the right to collect an assessment. This usually occurs when an association provides an estoppel letter delineating amounts due. Estoppel letters are authorized in F.S. 718.116(8). Additionally, a defendant owner may raise the defense of selective enforcement – that is, that an association is not bringing a lien foreclosure action against all delinquent owners. However, reliance is an essential element of that affirmative defense. See Killearn Acres Homeowner’s Ass’n v. Keever, 595 So.2d 1019 (Fla. 1st DCA 1992). Thus, there are drawbacks to asserting this defense because it is difficult for the unit owner to allege that the association encouraged non-payment or that the owner did not pay because of his reliance on other unit owner’s non-payment. Additionally, an Association is entitled to file lawsuits one at a time against unit owners to conserve litigation expenses and this fact provides a rebuttal to a unit owner’s possible selective enforcement defense. Id.
– Source material includes “Condominium and Homeowners’ Association Liens” by Michael J. Gelfand from Florida Condominium and Community Association Law¸ published by the Florida Bar and Lexis Nexis.