Condominium Association Liens
Condominium Liens, The Bad and The Ugly
Condominium Liens are Creatures of Statute
The Florida Condominium Act (Section 718.116) gives condominium associations powerful tools to collect unpaid assessments. An association has a lien on all its members’ units for delinquent assessments. A lien creates an interest in real property. A condominium lien, like other statutory liens, supersedes Florida’s homestead exemption. After filing a claim of lien and providing other notice required by the statute to a member-owner, an association may foreclose its claim of lien, and ultimately compel the sale of the property to satisfy the owner’s unpaid assessments. An association may also sue an owner for breach of covenant and obtain a money judgment against him for the past due amounts plus interest and late fees and may pursue both remedies simultaneously.
According to Sec. 718.116(5)(a), a condominium lien is both a creature of statute; and a creature of the condominium declaration. The condominium lien will take its priority in right to payment based on the date the declarations were recorded. An important exception to this rule is that the date for the determination of priority of a condominium lien against contractual liens, such as mortgages, is the date on which the claim of condominium lien is actually filed in the public records.
Section 718.103 provides that a condominium association can lien a member’s property for outstanding assessments. “Assessment” is broadly defined as “a share of the funds which are required for the payment of common expenses. Thus, it includes regular maintenance fees as well as special assessments, and fines.” The statute further provides for the recovery by the Association of interest (up to 18% per day) as well as its own attorney fees and costs from the owner. There is no minimum delinquent amount that can be the subject of a lien.
While this article deals exclusively with condominium association liens, it is important to note that homeowners’ associations also have the power to impose liens under Chapter 720 of the Florida statutes. The rights of these two types of associations to collect assessments against their members’ properties and the procedures for doing so are nearly identical.
Perfection of a Condominium Lien:
- Notice of Intent to Lien
The first step to perfect a condominium lien prescribed by the Florida Condominium Act is for the association to send the unit owner a Notice of Intent to Lien letter. Section 718.121. . The notice must provide an itemized breakdown of the assessments that are alleged to be delinquent. Furthermore, the notice must be delivered to the delinquent unit owner no less than 30 days before the lien is recorded in the public record. The notice must be addressed to the owner’s last address on record with the association. The notice must be sent by first class and registered or certified mail, return receipt requested. See 718.121(4). The notice is effective upon the date of mailing.
- Claim of Lien
30 days after the association notices the owner of its intent to impose a lien, it may file a claim of lien. The claim of lien must state the description of the parcel encumbered, the name of the record owner, the amount due, and the due date or dates. The lien must be signed by an officer or authorized agent of the association, and must be recorded in the public records of the county in which the condominium parcel is located. See 718.116(5)(a)—(5)(b). The claim of lien is valid for one year from the date that it is filed.
Interest accrues on delinquent assessments. If the declaration of condominium does not specify an interest rate, interest accumulates at 18% per year from the date of delinquency. 718.116(3). If either the declaration or the association’s bylaws provide for late fees, the association may levy a late charge of the greater of $25 or 5% of the installment of the delinquent assessment. Even if a late fee does not bear a reasonable relationship to the cost of processing a late payment, the statutorily authorized late charge is not considered usurious.
2(A) Notice of Contest of Lien:
The Florida Condominium Act’s most important provision for unit owners is its authorization for the recording of a “notice of contest of lien.”. If a unit owner believes a condominium lien is not valid, he or his attorney can force the association to foreclose its lien far more quickly by drafting and executing this document and recording it in the public records. The notice need only identify the lien to which the owner is objecting (by book and page number) and state that the owner contests the lien. By recording a notice of contest of lien, the unit owner avoids the cost and time of filing a lawsuit while forcing the association to start the litigation process in order to collect on its claim of lien.
After the notice of contest of lien has been recorded, the clerk of the circuit court will 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 most recent amendment to it. The clerk will certify to the service on the face of the notice. (service is considered complete upon mailing). After service, the association has 90 days to file an action to enforce the lien; and, if the action is not filed within this period, the lien is void.
- Notice of Intent to Foreclose Claim of Lien:
After the lien is recorded, the next step is for the association to send a notice of intent to foreclose on the condominium lien. No foreclosure judgment may be entered until at least 30 days after the association gives written notice to the unit owner of its intention to foreclose its lien to collect the unpaid assessments. This section of the statute was amended in 2014 to include a sample notice. So the language of the letter should match the language in the statute. If this notice is not given at least 30 days before the foreclosure action is filed, and if the delinquent assessments—including those coming due after the claim of lien is recorded—are paid before the entry of a final judgment of foreclosure, the association will not be permitted to recover its attorney’s fees or costs in the action to enforce the lien.
A copy of the notice must be delivered to the unit owner by certified or registered mail, return receipt requested, addressed to the unit owner at his or her last known address. Notice is deemed to be given upon proper mailing. The notice requirements do not apply if an action to foreclose a mortgage on the condominium unit is pending or if the owner has already filed a notice of contest of lien (see below). See 718.116(6)(b).
- Foreclosure of Lien:
After providing the unit owner requisite notices, an association may foreclose its claim of lien. Florida’s Condominium Act specifies that an association may recover from the unit owner delinquent assessments, as well as prevailing party interest, attorney fees, and costs in a foreclosure action.
In my next blog post, I will discuss the strategies and legal defenses used by owners to fight condominium liens.
Call John Clarke at (954) 556-8952 if you need legal advice on dealing with a condominium lien or any other civil matter.
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