Florida Senate - 2010                                    SB 1272
       
       
       
       By Senator Ring
       
       
       
       
       32-00081A-10                                          20101272__
    1                        A bill to be entitled                      
    2         An act relating to condominium and homeowners’
    3         associations; amending s. 718.116, F.S.; providing
    4         that a person acquiring title to a condominium by
    5         foreclosure or recorded deed is liable for certain
    6         additional unpaid expenses and assessments; clarifying
    7         the definition of “successor or assignee”; requiring
    8         that certain first mortgagees exercise property
    9         preservation rights under certain circumstances;
   10         authorizing a homeowners’ association to preserve or
   11         maintain the unit in a safe condition under certain
   12         circumstances; requiring that certain costs incurred
   13         by an association be deemed an individual assessment
   14         against the unit being foreclosed; providing that a
   15         first mortgagee is liable for certain special
   16         assessments levied against a unit during the pendency
   17         of a foreclosure action under certain circumstances;
   18         authorizing an association to initiate certain causes
   19         of action; authorizing an association to recover
   20         reasonable attorney’s fees incurred as a result of
   21         pursuing certain causes of action; amending s.
   22         720.3085, F.S.; providing that a first mortgagee is
   23         liable for certain special assessments levied against
   24         a unit during the pendency of a foreclosure action
   25         under certain circumstances; requiring that certain
   26         first mortgagees exercise property preservation rights
   27         under certain circumstances; authorizing a homeowners’
   28         association to preserve or maintain the unit in a safe
   29         condition under certain circumstances; requiring that
   30         certain costs incurred by an association be deemed an
   31         individual assessment against the unit being
   32         foreclosed; providing an effective date.
   33  
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Paragraphs (b) and (g) of subsection (1) of
   37  section 718.116, Florida Statutes, are amended, and paragraphs
   38  (h), (i), and (j) are added to that subsection, to read:
   39         718.116 Assessments; liability; lien and priority;
   40  interest; collection.—
   41         (1)
   42         (b) The liability of a first mortgagee or its successor or
   43  assignees who acquire title to a unit by foreclosure or by
   44  recorded deed in lieu of foreclosure for the unpaid assessments
   45  that became due before prior to the mortgagee’s acquisition of
   46  title is limited to the lesser of:
   47         1. The unit’s unpaid common expenses and regular periodic
   48  assessments that which accrued or came due during the 12 6
   49  months immediately preceding the acquisition of title and for
   50  which payment in full has not been received by the association;
   51  or
   52         2. One percent of the original mortgage debt. The
   53  provisions of this paragraph apply only if the first mortgagee
   54  joined the association as a defendant in the foreclosure action.
   55  Joinder of the association is not required if, on the date the
   56  complaint is filed, the association was dissolved or did not
   57  maintain an office or agent for service of process at a location
   58  which was known to or reasonably discoverable by the mortgagee.
   59         (g) For purposes of this subsection, the term “successor or
   60  assignee” as used with respect to a first mortgagee includes
   61  only a subsequent holder of the first mortgage who acquires the
   62  first mortgage before any action to foreclose the first mortgage
   63  is filed.
   64         (h)In addition to the first mortgagee’s obligations set
   65  forth in paragraph (b), as to an individual unit, if the first
   66  mortgagee institutes a foreclosure action against the unit
   67  owner, the first mortgagee must exercise any property
   68  preservation rights available under the mortgage being
   69  foreclosed. If the first mortgagee fails to timely fulfill its
   70  obligations under this section, the association may undertake
   71  any reasonable action to otherwise preserve and maintain the
   72  unit in a safe condition. Costs incurred by the association in
   73  exercising this right shall be deemed an individual assessment
   74  against the unit for which the association may pursue a lien or
   75  foreclosure action.
   76         (i)In addition to the first mortgagee’s obligations set
   77  forth in paragraph (b), if the first mortgagee institutes a
   78  foreclosure action against the unit owner, the first mortgagee
   79  is liable for any special assessments levied against the unit
   80  during the pendency of such action for damage to the common
   81  elements, roof, structural components of the building, and
   82  mechanical, electrical, and plumbing elements serving the
   83  building caused by windstorm, fire, or other casualty or act of
   84  God, the purpose for which is to repair, restore, or replace the
   85  common elements to pre-loss conditions, and which are needed to
   86  pay for any deductibles or increase in the association’s
   87  casualty insurance premiums.
   88         (j) The association may bring an action in its name to
   89  foreclose a lien for assessments in the same manner that a
   90  mortgage of real property is foreclosed, as well as an action to
   91  recover a monetary judgment for the unpaid assessments without
   92  having any claim of lien. The association is entitled to recover
   93  its reasonable attorney’s fees incurred in a lien foreclosure
   94  action or an action to recover a monetary judgment for unpaid
   95  assessments.
   96         Section 2. Subsection (2) of section 720.3085, Florida
   97  Statutes, is amended to read:
   98         720.3085 Payment for assessments; lien claims.—
   99         (2)(a) A parcel owner, regardless of how his or her title
  100  to property has been acquired, including by purchase at a
  101  foreclosure sale or by deed in lieu of foreclosure, is liable
  102  for all assessments that come due while he or she is the parcel
  103  owner. The parcel owner’s liability for assessments may not be
  104  avoided by waiver or suspension of the use or enjoyment of any
  105  common area or by abandonment of the parcel upon which the
  106  assessments are made.
  107         (b) A parcel owner is jointly and severally liable with the
  108  previous parcel owner for all unpaid assessments that came due
  109  up to the time of transfer of title. This liability is without
  110  prejudice to any right the present parcel owner may have to
  111  recover any amounts paid by the present owner from the previous
  112  owner.
  113         (c) Notwithstanding anything to the contrary contained in
  114  this section, the liability of a first mortgagee, or its
  115  successor or assignee as a subsequent holder of the first
  116  mortgage who acquires title to a parcel by foreclosure or by
  117  recorded deed in lieu of foreclosure for the unpaid assessments
  118  that became due before the mortgagee’s acquisition of title,
  119  shall be the lesser of:
  120         1. The parcel’s unpaid common expenses and regular periodic
  121  or special assessments that accrued or came due during the 12
  122  months immediately preceding the acquisition of title and for
  123  which payment in full has not been received by the association;
  124  or
  125         2. One percent of the original mortgage debt.
  126         (d)In addition to the first mortgagee’s obligations set
  127  forth in paragraph (c), if the first mortgagee institutes a
  128  foreclosure action against the unit owner, the first mortgagee
  129  is liable for any special assessments levied against the unit
  130  during the pendency of such action for damage to the common
  131  elements, roof, structural components of the building, and
  132  mechanical, electrical, and plumbing elements serving the
  133  building caused by windstorm, fire, or other casualty or act of
  134  God, the purpose for which is to repair, restore, or replace the
  135  common elements to pre-loss conditions, and which are needed to
  136  pay for any deductibles or increase in the association’s
  137  casualty insurance premiums.
  138         (e)In addition to the first mortgagee’s obligations set
  139  forth in paragraph (c), as to an individual unit, if the first
  140  mortgagee institutes a foreclosure action against the unit
  141  owner, the first mortgagee must exercise any property
  142  preservation rights available under the mortgage being
  143  foreclosed. If the first mortgagee fails to timely fulfill its
  144  obligations under this section, the association may undertake
  145  any reasonable action to otherwise preserve and maintain the
  146  unit in a safe condition. Costs incurred by the association in
  147  exercising this right shall be deemed an individual assessment
  148  against the unit for which the association may pursue a lien or
  149  foreclosure action.
  150  
  151  The limitations on first mortgagee liability provided in this
  152  subsection by this paragraph apply only if the first mortgagee
  153  filed suit against the parcel owner and initially joined the
  154  association as a defendant in the mortgagee foreclosure action.
  155  Joinder of the association is not required if, on the date the
  156  complaint is filed, the association was dissolved or did not
  157  maintain an office or agent for service of process at a location
  158  that was known to or reasonably discoverable by the mortgagee.
  159         Section 3. This act shall take effect July 1, 2010.