HB 329

1	A bill to be entitled
2	An act relating to condominium foreclosures; amending s.
3	83.46, F.S.; requiring certain condominium unit tenants to
4	pay moneys owed on behalf of the unit to the association;
5	providing liability; providing a tenant's obligations to
6	the association; amending s. 718.106, F.S.; providing
7	condominium associations with certain powers relating to
8	owners and tenants of a unit in foreclosure and more than
9	90 days delinquent; providing an exception for a tenant
10	who pays the rent directly to the association; amending s.
11	718.116, F.S.; requiring a mortgagee to request an
12	estoppel letter from an association prior to filing a
13	foreclosure action; authorizing the association to charge
14	a fee for the production of an estoppel letter; requiring
15	the association to reply to the letter within a specified
16	period of time; providing for dismissal of the action for
17	failure to request the letter or make payments; requiring
18	certain payments; deleting provisions limiting the
19	liability of the mortgagee and successors acquiring the
20	title by foreclosure or by deed in lieu of foreclosure for
21	certain unpaid assessments; deleting an exemption from
22	liability for certain unpaid assessments for certain
23	persons acquiring the title to a condominium as a result
24	of the foreclosure of the mortgage or by deed in lieu of
25	the foreclosure of the mortgage; deleting the definition
26	of the term "successor or assignee"; specifying additional
27	circumstances for which liability for assessments may not
28	be avoided; providing an effective date.
29
30	Be It Enacted by the Legislature of the State of Florida:
31
32	Section 1.  Subsection (4) is added to section 83.46,
33	Florida Statutes, to read:
34	83.46  Rent; duration of tenancies.--
35	(4)(a)  If assessments upon a condominium unit subject to a
36	rental agreement are delinquent for more than 30 days, the
37	association may require the tenant to pay the association any
38	moneys the unit owner landlord owes the association, not to
39	exceed the amount of moneys the tenant owes the unit owner
40	landlord during the pendency of the rental agreement. Any
41	payment made by the tenant to the association shall be credited
42	to the unit owner landlord's account with the condominium
43	association.
44	(b)  If a unit is subject to a rental agreement, and if a
45	unit or the unit owner's monetary obligations to the association
46	become delinquent, the unit's tenant is jointly and severally
47	liable with the unit and unit owner for the unit and unit
48	owner's monetary obligations to the association.
49	1.  The tenant's monetary obligations to the association
50	include, but are not limited to, all assessments and
51	installments, late charges, collection costs, attorney's fees
52	and court costs, and other monetary obligations from the unit
53	owner to the association, and any interest thereon, that come
54	due against the unit or the unit owner from the date of the
55	association's notice to the tenant, and accruing to the date all
56	the monetary obligations are paid in full, regardless of whether
57	the lease is terminated or otherwise concluded. In addition to
58	all other remedies, the association may enforce the tenant's
59	liability by evicting the tenant, either in the association's
60	name or in the name of the unit owner, and by suspending the
61	unit's right to utilize common elements other than those
62	necessary for ingress and egress.
63	2.  The liability of a tenant is limited to the amount of
64	moneys due from the tenant to the unit owner. However, a
65	tenant's prepayment of a lease obligation does not excuse the
66	tenant for liability for the amount of the prepayment unless the
67	prepayment is either expressly stated in the lease or is for an
68	installment of monthly rent as expressly provided in the lease
69	and paid within 5 days after the installment due date, and the
70	tenant provides the association proof of payment in the form of
71	a canceled check.
72	3.  Upon the association's notice to the tenant, the tenant
73	shall pay all moneys, whether as rent or otherwise, owed
74	pursuant to the lease, directly to the association until payment
75	of the monetary obligations due and accruing from the unit owner
76	to the association are paid in full, for which the unit owner,
77	contingent upon the unit owner's default, transfers, assigns,
78	conveys, sets over, and delivers to the association all moneys,
79	whether as rent or otherwise, owed under the lease with the
80	right, but without the obligation, to collect all of such moneys
81	that may come due under the lease.
82	Section 2.  Subsection (6) is added to section 718.106,
83	Florida Statutes, to read:
84	718.106  Condominium parcels; appurtenances; possession and
85	enjoyment.--
86	(6)  Notwithstanding the provisions of this section, if a
87	condominium unit is in foreclosure and the unit has unpaid
88	assessments of 90 days or more, the association may, but is not
89	required to, take one or more of the following actions:
90	(a)  Deny any owner or tenant the right to occupy the
91	condominium unit.
92	(b)  Deny any owner or tenant of the unit the use of the
93	common areas. However, this paragraph shall not prevent any
94	owner or tenant from using the common areas in order to leave
95	the premises.
96	(c)  Deny any owner or tenant of the unit use of
97	recreational facilities.
98	(d)  Deny any owner or tenant of the unit the use of a
99	parking or marina space, which may be enforced by towing of the
100	motor vehicle or vessel at the expense of the owner.
101	(e)  Deny any owner of his or her voting rights.
102
103	Notwithstanding any provision of this subsection, if a tenant is
104	paying a fair market rent and the tenant pays the entire rental
105	amount due for a rental period to the association, the
106	association may not deny the tenant under this subsection the
107	right to occupy the unit, the use of common areas, the use of
108	recreational facilities, or the use of parking areas during such
109	rental period. Any rent paid by the tenant to the association
110	shall be credited to the landlord's account with the condominium
111	association for that unit pursuant to s. 83.46(4).
112	Section 3.  Subsections (1) and (2) of section 718.116,
113	Florida Statutes, are amended to read:
114	718.116  Assessments; liability; lien and priority;
115	interest; collection; rent during foreclosure.--
116	(1)(a)  A unit owner, regardless of how his or her title
117	has been acquired, including by purchase at a foreclosure sale
118	or by deed in lieu of foreclosure, is liable for all assessments
119	which come due while he or she is the unit owner. Additionally,
120	a unit owner is jointly and severally liable with the previous
121	owner for all unpaid assessments that came due up to the time of
122	transfer of title. This liability is without prejudice to any
123	right the owner may have to recover from the previous owner the
124	amounts paid by the owner.
125	(b)  Before a mortgagee of a loan secured by a lien on a
126	condominium unit may file an action for foreclosure of the
127	condominium unit, the mortgagee shall request an estoppel letter
128	from the association for which the association may charge $50.
129	Failure to make such a request for an estoppel letter shall be
130	grounds for dismissal of the foreclosure action. The request
131	shall be in writing and shall indicate the name of the borrower
132	and the unit number. The association shall reply within 15 days
133	with an estoppel letter stating the current monthly maintenance
134	fee for the unit and the sum of 6 months' assessments. Within 30
135	days after the filing of the foreclosure action, the mortgagee
136	shall pay to the association the sum of 6 months' assessments as
137	indicated on the estoppel letter, which sum shall be credited to
138	the unit's account. On the first anniversary of the filing of
139	the foreclosure action, if the case is still pending without the
140	issuance of a certificate of title, regardless of cause, the
141	mortgagee shall pay to the association all outstanding moneys
142	owed by the unit as of that date and shall pay future
143	assessments as they come due. Any payment to the association by
144	the mortgagee shall be taxed as a cost in the foreclosure
145	action, and the mortgagor shall be personally liable to the
146	mortgagee for the value of the payment made to the association
147	plus interest at the interest rate provided for in the
148	promissory note for advances, all late charges, and attorney's
149	fees. The court shall dismiss a foreclosure action when a
150	plaintiff mortgagee has failed to make all monetary payments
151	required by this subsection. Failure to make such payments shall
152	result in the court awarding the association attorney's fees
153	from the mortgagee. The liability of a first mortgagee or its
154	successor or assignees who acquire title to a unit by
155	foreclosure or by deed in lieu of foreclosure for the unpaid
156	assessments that became due prior to the mortgagee's acquisition
157	of title is limited to the lesser of:
158	1.  The unit's unpaid common expenses and regular periodic
159	assessments which accrued or came due during the 6 months
160	immediately preceding the acquisition of title and for which
161	payment in full has not been received by the association; or
162	2.  One percent of the original mortgage debt. The
163	provisions of this paragraph apply only if the first mortgagee
164	joined the association as a defendant in the foreclosure action.
165	Joinder of the association is not required if, on the date the
166	complaint is filed, the association was dissolved or did not
167	maintain an office or agent for service of process at a location
168	which was known to or reasonably discoverable by the mortgagee.
169	(c)  The person acquiring title shall pay the amount owed
170	to the association within 30 days after transfer of title.
171	Failure to pay the full amount when due shall entitle the
172	association to record a claim of lien against the parcel and
173	proceed in the same manner as provided in this section for the
174	collection of unpaid assessments.
175	(d)  With respect to each timeshare unit, each owner of a
176	timeshare estate therein is jointly and severally liable for the
177	payment of all assessments and other charges levied against or
178	with respect to that unit pursuant to the declaration or bylaws,
179	except to the extent that the declaration or bylaws may provide
180	to the contrary.
181	(e)  Notwithstanding the provisions of paragraph (b), a
182	first mortgagee or its successor or assignees who acquire title
183	to a condominium unit as a result of the foreclosure of the
184	mortgage or by deed in lieu of foreclosure of the mortgage shall
185	be exempt from liability for all unpaid assessments attributable
186	to the parcel or chargeable to the previous owner which came due
187	prior to acquisition of title if the first mortgage was recorded
188	prior to April 1, 1992. If, however, the first mortgage was
189	recorded on or after April 1, 1992, or on the date the mortgage
190	was recorded, the declaration included language incorporating by
191	reference future amendments to this chapter, the provisions of
192	paragraph (b) shall apply.
193	(e)(f)  The provisions of this subsection are intended to
194	clarify existing law, and shall not be available in any case
195	where the unpaid assessments sought to be recovered by the
196	association are secured by a lien recorded prior to the
197	recording of the mortgage. Notwithstanding the provisions of
198	chapter 48, the association shall be a proper party to intervene
199	in any foreclosure proceeding to seek equitable relief.
200	(g)  For purposes of this subsection, the term "successor
201	or assignee" as used with respect to a first mortgagee includes
202	only a subsequent holder of the first mortgage.
203	(2)  The liability for assessments may not be avoided by
204	waiver of the use or enjoyment of any common element, denial of
205	the use or enjoyment of the unit, denial of the use or enjoyment
206	of any common element, or by abandonment of the unit for which
207	the assessments are made.
208	Section 4.  This act shall take effect July 1, 2010.

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