CS/HB 1465

1
A bill to be entitled
2An act relating to homeowners' associations; creating s.
3720.3085, F.S.; providing that a parcel owner is liable
4for all assessments on a parcel; providing for the payment
5of interest and late fees on unpaid assessments;
6prioritizing the application of any payment received;
7prohibiting the placement of a restriction statement on
8the payment; providing for the filing of a claim of lien
9for unpaid assessments; providing for the foreclosure of
10the lien; providing for notice to the owner; providing for
11a qualifying offer from the owner; providing an effective
12date.
13
14Be It Enacted by the Legislature of the State of Florida:
15
16     Section 1.  Section 720.3085, Florida Statutes, is created
17to read:
18     720.3085  Payment for assessments; lien claims.--
19     (1)  A parcel owner, regardless of how his or her title to
20property has been acquired, including by purchase at a
21foreclosure sale or by deed in lieu of foreclosure, is liable
22for all assessments that come due while he or she is the parcel
23owner. The parcel owner's liability for assessments may not be
24avoided by waiver or suspension of the use or enjoyment of any
25common area or by abandonment of the parcel upon which the
26assessments are made.
27     (2)  A parcel owner is jointly and severally liable with
28the previous parcel owner for all unpaid assessments that came
29due up to the time of transfer of title. This liability is
30without prejudice to any right the present parcel owner may have
31to recover any amounts paid by the present owner from the
32previous owner.
33     (3)  Assessments and installments on assessments that are
34not paid when due bear interest from the due date until paid at
35the rate provided in the declaration of covenants or the bylaws
36of the association, which rate may not exceed the rate allowed
37by law. If no rate is provided in the declaration or bylaws,
38interest accrues at the rate of 18 percent per year.
39     (a)  If the declaration or bylaws so provide, the
40association may also charge an administrative late fee in an
41amount not to exceed the greater of $25 or 5 percent of the
42amount of each installment that is paid past the due date.
43     (b)  Any payment received by an association and accepted
44shall be applied first to any interest accrued, then to any
45administrative late fee, then to any costs and reasonable
46attorney's fees incurred in collection, and then to the
47delinquent assessment. This paragraph applies notwithstanding
48any restrictive endorsement, designation, or instruction placed
49on or accompanying a payment. A late fee is not subject to the
50provisions of chapter 687 and is not a fine.
51     (4)  A homeowners' association may not file a claim of lien
52against a parcel for unpaid assessments unless a written notice
53or demand for past due assessments as well as any other amounts
54owed to the association pursuant to its governing documents has
55been made by the association. The written notice or demand must:
56     (a)  Provide the owner with 45 days to make payment for all
57amounts due, including, but not limited to, any attorney's fees
58and actual costs associated with the preparation and delivery of
59the written demand.
60     (b)  Be sent by registered or certified mail, return
61receipt requested, and by first-class United States Mail to the
62parcel owner at his or her last address as reflected in the
63records of the association, if the address is within the United
64States, and to the parcel owner subject to the demand at the
65address of the parcel if the owner's address as reflected in the
66records of the association is not the parcel address. If the
67address reflected in the records is outside the United States,
68then sending the notice to that address and to the parcel
69address by first-class United States mail is sufficient.
70     (5)  The association may bring an action in its name to
71foreclose a lien for unpaid assessments secured by a lien in the
72same manner that a mortgage of real property is foreclosed and
73may also bring an action to recover a money judgment for the
74unpaid assessments without waiving any claim of lien. Such
75action may not be brought until 45 days after the parcel owner
76has been provided notice of the association's intent to
77foreclose and collect the unpaid amount.
78     (a)  The association may recover any reasonable attorney's
79fees incurred in a lien foreclosure action or in an action to
80recover a money judgment for the unpaid assessments.
81     (b)  The association may purchase the parcel at the
82foreclosure sale and hold, lease, mortgage, or convey the
83parcel.
84     (6)  If after service of a summons on a complaint to
85foreclose a lien the parcel is not the subject of a mortgage
86foreclosure or a notice of tax certificate sale, or the parcel
87owner is not a debtor in bankruptcy proceedings, the parcel
88owner may serve and file with the court a qualifying offer at
89any time before the entry of a foreclosure judgment. For
90purposes of this subsection, the term "qualifying offer" means a
91written offer to pay all amounts secured by the lien of the
92association plus interest accruing during the pendency of the
93offer at the rate of interest provided in this section. The
94parcel owner may make only one qualifying offer during the
95pendency of a foreclosure action.
96     (a)  The parcel owner shall deliver a copy of the filed
97qualifying offer to the association's attorney by hand delivery
98or by certified mail, return receipt requested.
99     (b)  The parcel owner's filing of the qualifying offer with
100the court stays the foreclosure action for the period stated in
101the qualifying offer, which may not exceed 60 days, to permit
102the parcel owner to pay the qualifying offer to the association
103plus any interest accruing during the pendency of the offer.
104     (c)  The qualifying offer of the parcel owner must be in
105writing, be signed by the owner of the parcel and the spouse of
106the owner if the spouse holds a homestead interest in the
107parcel, be acknowledged by a notary public, state the total
108amount due the association, state that the total amount due the
109association is secured by the lien of the association, state
110that the association is entitled to foreclose the lien and
111obtain a foreclosure judgment for the total amount due if the
112parcel owner breaches the qualifying offer, state that the
113parcel owner will not endanger the priority of the lien of the
114association or the amounts secured by the lien, and state the
115actual date or dates the association will receive the total
116amount due from the parcel owner. If the parcel owner makes a
117qualifying offer under this subsection, the association may not
118add the cost of any legal fees incurred by the association
119within the period of the stay other than costs acquired in
120defense of a mortgage foreclosure action concerning the parcel,
121a bankruptcy proceeding in which the parcel owner is a debtor,
122or in response to filings by a party other than the association
123in the lien foreclosure action of the association.
124     (d)  If the parcel owner breaches the qualifying offer, the
125stay shall be vacated and the association may proceed in its
126action to obtain a foreclosure judgment against the parcel and
127the parcel owners for the amount in the qualifying offer and any
128amounts accruing after the date of the qualifying offer.
129     Section 2.  This act shall take effect July 1, 2007.


CODING: Words stricken are deletions; words underlined are additions.