Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 680
       
       
       
       
       
       
                                Barcode 590528                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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       Senator Bogdanoff moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 1322 - 1406
    4  and insert:
    5         Section 14. Section 719.108, Florida Statutes, is amended
    6  to read:
    7         719.108 Rents and assessments; liability; lien and
    8  priority; interest; collection; cooperative ownership.—
    9         (1) A unit owner, regardless of how title is acquired,
   10  including, without limitation, a purchaser at a judicial sale,
   11  is shall be liable for all rents and assessments coming due
   12  while the unit owner owns the unit is in exclusive possession of
   13  a unit. Additionally, a In a voluntary transfer, the unit owner
   14  is in exclusive possession shall be jointly and severally liable
   15  with the previous unit owner for all unpaid rents and
   16  assessments, late fees, interest, costs, and reasonable attorney
   17  fees incurred in an attempt to collect all such amounts that
   18  came due against the previous unit owner for his or her share of
   19  the common expenses up to the time of the transfer of title.
   20  This liability is, without prejudice to the rights of the
   21  present unit owner in exclusive possession to recover from the
   22  previous unit owner any the amounts paid by the present unit
   23  owner in exclusive possession therefor.
   24         (2) The liability for rents and assessments may not be
   25  avoided by waiver of the use or enjoyment of any common areas or
   26  by abandonment of the unit for which the rents and assessments
   27  are made.
   28         (3) Notwithstanding any other provision of this section,
   29  the liability of a first mortgagee or its successor or assignees
   30  who acquire title to a unit by foreclosure or by deed in lieu of
   31  foreclosure for the unpaid assessments that became due before
   32  the mortgagee’s acquisition of title is limited to the lesser
   33  of:
   34         (a) The unit’s unpaid common expenses and regular periodic
   35  or special assessments that accrued or came due during the 12
   36  months immediately preceding the acquisition of title and for
   37  which payment in full has not been received by the association;
   38  or
   39         (b) One percent of the original mortgage debt. This
   40  paragraph applies only if the first mortgagee joined the
   41  association as a defendant in the foreclosure action. Joinder of
   42  the association is not required if, on the date the complaint is
   43  filed, the association was dissolved or did not maintain an
   44  office or agent for service of process at a location that was
   45  known to or reasonably discoverable by the mortgagee.
   46         (4) The person acquiring title shall pay the amount owed to
   47  the association within 30 days after transfer of title. Failure
   48  to pay the full amount when due entitles the association to
   49  record a claim of lien against the parcel and proceed in the
   50  same manner as provided in this section for the collection of
   51  unpaid assessments.
   52         (5)(3) Rents and assessments, and installments on them, not
   53  paid when due bear interest at the rate provided in the
   54  cooperative documents from the date due until paid. This rate
   55  may not exceed the rate allowed by law and, if a rate is not
   56  provided in the cooperative documents, accrues at 18 percent per
   57  annum. If the cooperative documents or bylaws so provide, the
   58  association may charge an administrative late fee in addition to
   59  such interest, not to exceed the greater of $25 or 5 percent of
   60  each installment of the assessment for each delinquent
   61  installment that the payment is late. Any payment received by an
   62  association must be applied first to any interest accrued by the
   63  association, then to any administrative late fee, then to any
   64  costs and reasonable attorney attorney’s fees incurred in
   65  collection, and then to the delinquent assessment. The foregoing
   66  applies notwithstanding any restrictive endorsement,
   67  designation, or instruction placed on or accompanying a payment.
   68  A late fee is not subject to chapter 687 or s. 719.303(4).
   69         (6)(4) The association has a lien on each cooperative
   70  parcel for any unpaid rents and assessments, plus interest, and
   71  any authorized administrative late fees. If authorized by the
   72  cooperative documents, the lien also secures reasonable attorney
   73  attorney’s fees incurred by the association incident to the
   74  collection of the rents and assessments or enforcement of such
   75  lien. The lien is effective from and after recording a claim of
   76  lien in the public records in the county in which the
   77  cooperative parcel is located which states the description of
   78  the cooperative parcel, the name of the unit owner, the amount
   79  due, and the due dates. The lien expires if a claim of lien is
   80  not filed within 1 year after the date the assessment was due,
   81  and the lien does not continue for longer than 1 year after the
   82  claim of lien has been recorded unless, within that time, an
   83  action to enforce the lien is commenced. Except as otherwise
   84  provided in this chapter, a lien may not be filed by the
   85  association against a cooperative parcel until 30 days after the
   86  date on which a notice of intent to file a lien has been
   87  delivered to the owner.
   88         (a) The notice must be sent to the unit owner at the
   89  address of the unit by first-class United States mail and:
   90         1. If the most recent address of the unit owner on the
   91  records of the association is the address of the unit, the
   92  notice must be sent by registered or certified mail, return
   93  receipt requested, to the unit owner at the address of the unit.
   94         2. If the most recent address of the unit owner on the
   95  records of the association is in the United States, but is not
   96  the address of the unit, the notice must be sent by registered
   97  or certified mail, return receipt requested, to the unit owner
   98  at his or her most recent address.
   99         3. If the most recent address of the unit owner on the
  100  records of the association is not in the United States, the
  101  notice must be sent by first-class United States mail to the
  102  unit owner at his or her most recent address.
  103         (b) A notice that is sent pursuant to this subsection is
  104  deemed delivered upon mailing.
  105         (7)(5) Liens for rents and assessments may be foreclosed by
  106  suit brought in the name of the association, in like manner as a
  107  foreclosure of a mortgage on real property. In any foreclosure,
  108  the unit owner shall pay a reasonable rental for the cooperative
  109  parcel, if so provided in the cooperative documents, and the
  110  plaintiff in the foreclosure is entitled to the appointment of a
  111  receiver to collect the rent. The association has the power,
  112  unless prohibited by the cooperative documents, to bid on the
  113  cooperative parcel at the foreclosure sale and to acquire and
  114  hold, lease, mortgage, or convey it. Suit to recover a money
  115  judgment for unpaid rents and assessments may be maintained
  116  without waiving the lien securing them.
  117         (8)(6) Within 15 days after request by a unit owner or
  118  mortgagee, the association shall provide a certificate stating
  119  all assessments and other moneys owed to the association by the
  120  unit owner with respect to the cooperative parcel. Any person
  121  other than the unit owner who relies upon such certificate shall
  122  be protected thereby. Notwithstanding any limitation on transfer
  123  fees contained in s. 719.106(1)(i), the association or its
  124  authorized agent may charge a reasonable fee for the preparation
  125  of the certificate.
  126         (9)(7) The remedies provided in this section do not exclude
  127  other remedies provided by the cooperative documents and
  128  permitted by law.
  129         (10)(8)(a) A No unit owner may not be excused from the
  130  payment of his or her share of the rents or assessments of a
  131  cooperative unless all unit owners are likewise proportionately
  132  excused from payment, except as provided in subsection (8) (6)
  133  and in the following cases:
  134         1. If the cooperative documents so provide, a developer or
  135  other person owning cooperative units offered for sale may be
  136  excused from the payment of the share of the common expenses,
  137  assessments, and rents related to those units for a stated
  138  period of time. The period must terminate no later than the
  139  first day of the fourth calendar month following the month in
  140  which the right of exclusive possession is first granted to a
  141  unit owner. However, the developer must pay the portion of
  142  common expenses incurred during that period which exceed the
  143  amount assessed against other unit owners.
  144         2. A developer, or other person with an ownership interest
  145  in cooperative units or having an obligation to pay common
  146  expenses, may be excused from the payment of his or her share of
  147  the common expenses which would have been assessed against those
  148  units during the period of time that he or she shall have
  149  guaranteed to each purchaser in the purchase contract or in the
  150  cooperative documents, or by agreement between the developer and
  151  a majority of the unit owners other than the developer, that the
  152  assessment for common expenses of the cooperative imposed upon
  153  the unit owners would not increase over a stated dollar amount
  154  and shall have obligated himself or herself to pay any amount of
  155  common expenses incurred during that period and not produced by
  156  the assessments at the guaranteed level receivable from other
  157  unit owners.
  158         (b) If the purchase contract, cooperative documents, or
  159  agreement between the developer and a majority of unit owners
  160  other than the developer provides for the developer or another
  161  person to be excused from the payment of assessments pursuant to
  162  paragraph (a), no funds receivable from unit owners payable to
  163  the association or collected by the developer on behalf of the
  164  association, other than regular periodic assessments for common
  165  expenses as provided in the cooperative documents and disclosed
  166  in the estimated operating budget pursuant to s. 719.503(1)(b)6.
  167  or s. 719.504(20)(b), may not be used for payment of common
  168  expenses prior to the expiration of the period during which the
  169  developer or other person is so excused. This restriction
  170  applies to funds including, but not limited to, capital
  171  contributions or startup funds collected from unit purchasers at
  172  closing.
  173         (11)(9) The specific purposes of any special assessment,
  174  including any contingent special assessment levied in
  175  conjunction with the purchase of an insurance policy authorized
  176  by s. 719.104(3), approved in accordance with the cooperative
  177  documents shall be set forth in a written notice of such
  178  assessment sent or delivered to each unit owner. The funds
  179  collected pursuant to a special assessment may shall be used
  180  only for the specific purpose or purposes set forth in such
  181  notice or returned to the unit owners. However, upon completion
  182  of such specific purposes, any excess funds shall be considered
  183  common surplus and may, at the discretion of the board, either
  184  be returned to the unit owners or applied as a credit toward
  185  future assessments.
  186         (12)(10)(a) If the unit is occupied by a tenant and the
  187  unit owner is delinquent in paying any monetary obligation due
  188  to the association, the association may make a written demand
  189  that the tenant pay to the association the subsequent rental
  190  payments and continue to make such payments until all monetary
  191  obligations of the unit owner related to the unit have been paid
  192  in full to the association. The tenant must pay the monetary
  193  obligations to the association until the association releases
  194  the tenant or the tenant discontinues tenancy in the unit.
  195         1. The association must provide the tenant a notice, by
  196  hand delivery or United States mail, in substantially the
  197  following form:
  198  
  199         	Pursuant to section 719.108(12) 719.108(10), Florida
  200         Statutes, we demand that you make your rent payments
  201         directly to the cooperative association and continue doing
  202         so until the association notifies you otherwise.
  203  
  204         	Payment due the cooperative association may be in the same
  205         form as you paid your landlord and must be sent by United
  206         States mail or hand delivery to ...(full address)...,
  207         payable to ...(name)....
  208  
  209         	Your obligation to pay your rent to the association begins
  210         immediately, unless you have already paid rent to your
  211         landlord for the current period before receiving this
  212         notice. In that case, you must provide the association
  213         written proof of your payment within 14 days after
  214         receiving this notice and your obligation to pay rent to
  215         the association would then begin with the next rental
  216         period.
  217  
  218         	Pursuant to section 719.108(12) 719.108(10), Florida
  219         Statutes, your payment of rent to the association gives you
  220         complete immunity from any claim for the rent by your
  221         landlord.
  222  
  223         2. The association must mail written notice to the unit
  224  owner of the association’s demand that the tenant make payments
  225  to the association.
  226         3. The association shall, upon request, provide the tenant
  227  with written receipts for payments made.
  228         4. A tenant is immune from any claim by the landlord or
  229  unit owner related to the rent timely paid to the association
  230  after the association has made written demand.
  231         (b) If the tenant paid rent to the landlord or unit owner
  232  for a given rental period before receiving the demand from the
  233  association and provides written evidence to the association of
  234  having paid the rent within 14 days after receiving the demand,
  235  the tenant shall begin making rental payments to the association
  236  for the following rental period and shall continue making rental
  237  payments to the association to be credited against the monetary
  238  obligations of the unit owner until the association releases the
  239  tenant or the tenant discontinues tenancy in the unit.
  240         (c) The liability of the tenant may not exceed the amount
  241  due from the tenant to the tenant’s landlord. The tenant’s
  242  landlord shall provide the tenant a credit against rents due to
  243  the landlord in the amount of moneys paid to the association.
  244         (d) The association may issue notice under s. 83.56 and sue
  245  for eviction under ss. 83.59-83.625 as if the association were a
  246  landlord under part II of chapter 83 if the tenant fails to pay
  247  a required payment to the association after written demand has
  248  been made to the tenant. However, the association is not
  249  otherwise considered a landlord under chapter 83 and
  250  specifically has no obligations under s. 83.51.
  251         (e) The tenant does not, by virtue of payment of monetary
  252  obligations to the association, have any of the rights of a unit
  253  owner to vote in any election or to examine the books and
  254  records of the association.
  255         (f) A court may supersede the effect of this subsection by
  256  appointing a receiver.
  257  
  258  ================= T I T L E  A M E N D M E N T ================
  259         And the title is amended as follows:
  260         Delete lines 83 - 85
  261  and insert:
  262         revising provisions with respect to assessments and
  263         liens; revising liability of unit owners; providing
  264         liability limitations of a first mortgagee or its
  265         successor or assignees who acquire title to a unit by
  266         foreclosure; providing requirements for persons
  267         acquiring title; authorizing the association to record
  268         a claim of lien under certain conditions; amending s.