A Condominium Owner did not pay the Assessment. How do I Collect?
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Under Florida law, condominium associations have the ability to assess unit owners for their proportional amount of the costs and expenses for maintaining and operating the condominium property. The ability of condominium associations to collect assessments from unit owners is provided for in Chapter 718, Fla. Stat., and in the condominium’s governing documents. If a unit owner does not pay his or her assessments, the association has the power to file a claim of lien and, ultimately, foreclose on the unit. However, in order for the association to successfully lien and foreclose on the unit, it must strictly comply with the statutory requirements detailed below.
An assessment is defined as “a share of the funds which are required for the payment of common expenses, which from time to time is asserted against the unit owner.” § 718.103(1), Fla. Stat. Common expenses include the expenses of operating, maintaining, repairing, replacing, or protecting the common elements and association property, costs of carrying out the powers and duties of the association, and other expenses. § 718.115, Fla. Stat.
Assessments can come in two forms: general assessments and special assessments. General assessments are calculated as part of the annual budget and are paid monthly by each unit owner. If unexpected expenses arise in maintaining the common areas of the condominium, the association may levy a special assessment against unit owners. A special assessment is “any assessment levied against a unit owner other than the assessment required by a budget adopted annually.” § 718.103(24), Fla. Stat.
Unit owners are “liable for all assessments which come due while he or she is a unit owner.” § 718.116(1)(a). However, not all unit owners pay their assessments timely when they become due. To secure the payment of assessments, the condominium association “has a lien on each condominium parcel.” § 718.116(5)(a). If a unit owner fails to pay assessments, the association has a statutory right to file a claim of lien and subsequent lien foreclosure. See generally § 718.121, Fla. Stat.
Perfecting the Lien
Step 1: Demand Letter (Optional)
Although this step is optional, it may be worth it. Sending a demand letter to a unit owner is a low cost way of informing the unit owner that they are delinquent in paying their assessments. This step may result in the unit owner paying all amounts due and owing, without any additional action required by the association.
Step 2: Notice of Intent to Record a Claim of Lien
A notice of intent to lien is a formal statutory letter sent to the delinquent unit owner stating the association’s intent to place a lien on the unit for the owners failure to pay assessments. The notice of intent to lien must be delivered to the owner of the unit by both registered or certified mail, return receipt requested, and first-class United States mail to the owner at his or her last known address as reflected in the records of the association. If the address reflected in the records of the association is not the condominium unit address, the notice of intent to lien must also be delivered to the owner at the address of the unit. Delivery of the notice is deemed given upon mailing. § 718.121(4), Fla. Stat. The association must give the owner thirty (30) days to pay the outstanding balance before proceeding to the next step.
Step 3: Record the Claim of Lien
Thirty (30) days after sending the notice of intent to lien, the association can record the claim of lien in the public records. § 718.121(4), Fla. Stat. In Florida, the claim of lien must be drafted by an attorney because a legal description is required and it creates property rights. To be valid, the claim of lien must include:
- a legal description of the condominium parcel;
- the name of the record holder;
- the name and address of the condominium association;
- the amount due;
- the due dates; and
- it must be executed and acknowledged by an officer or authorized agent of the association.
The claim of lien secures all unpaid assessments that are due and that may accrue after the lien is recorded through the entry of final judgment, as well as interest, administrative late fees, and all reasonable costs and attorney fees. § 718.116(5)(b), Fla. Stat. The claim of lien is only valid for one (1) year after it is recorded. In other words, a legal action to foreclosure the lien must be commenced within one (1) year of filing the claim of lien.
If the unit owner pays the amount owed in full, the owner is entitled to a filing and recording of a “Release of Lien” in substantial compliance with the form found in in § 718.116(5)(d). The unit owner may contest the lien by filing a “Notice of Contest of Lien.” If the unit owner files a Notice of Contest of Lien, the association must commence a legal action to enforce the lien within ninety (90) days from the date the association received such notice. If the association does not commence an action within that ninety (90) day period, the claim of lien is voided. § 718.116(5)(c).
Step 4: Notice of Intent to Foreclose the Lien
The condominium association must provide written notice to the unit owner of its intention to foreclose its lien thirty (30) days before filing a lien foreclosure action. The notice must be delivered by physically delivering a copy to the unit owner, or by certified or registered mail, return receipt requested, addressed to the unit owner at his or her last known address. The notice is deemed to have been given at the time of mailing. § 718.116(6)(b).
Step 5: Foreclose the Lien
Thirty (30) days after the condominium association provided written notice of intent to foreclose, the association may bring a legal action in its name to foreclose the lien in the same manner a mortgage of real property is foreclosed, and may 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 either action. § 718.116(6)(a). At the foreclosure sale, the association has the power to purchase the condominium unit and to hold, lease, mortgage, or convey it. § 718.116(6)(d).
- Hans C. Wahl, Esq.
- Melissa Murrin, JD Candidate 2021
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