Senate Bill sb1844c1

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    Florida Senate - 2007                           CS for SB 1844

    By the Committee on Regulated Industries; and Senator Ring





    580-2335-07

  1                      A bill to be entitled

  2         An act relating to condominiums and

  3         cooperatives; amending s. 718.116, F.S.;

  4         prohibiting a condominium association from

  5         initiating a foreclosure action for assessments

  6         owed earlier than 30 days after the condominium

  7         association has given the unit owner written

  8         notice of the condominium association's intent

  9         to foreclose its lien to collect the unpaid

10         assessments secured by the lien; providing

11         procedures for delivery of the written notice

12         to the unit owner; providing an exception;

13         providing that if a unit owner makes a

14         qualifying offer, the condominium association

15         must suspend its foreclosure action or

16         collection efforts and agree to allow the unit

17         owner to pay all amounts due plus interest

18         within 60 days after receipt of the qualifying

19         offer; defining the term "qualifying offer";

20         providing procedures for acceptance of the

21         qualifying offer; providing an exception;

22         amending s. 719.108, F.S.; providing that if a

23         unit owner makes a qualifying offer, the

24         cooperative association must suspend its

25         foreclosure action or collection efforts and

26         agree to allow the unit owner to pay all

27         amounts due plus interest within 60 days after

28         receipt of the qualifying offer; defining the

29         term "qualifying offer"; providing procedures

30         for acceptance of the qualifying offer;

31  

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    Florida Senate - 2007                           CS for SB 1844
    580-2335-07




 1         providing an exception; providing an effective

 2         date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Subsection (6) of section 718.116, Florida

 7  Statutes, is amended to read:

 8         718.116  Assessments; liability; lien and priority;

 9  interest; collection.--

10         (6)(a)  The association may bring an action in its name

11  to foreclose a lien for assessments in the manner a mortgage

12  of real property is foreclosed and may also bring an action to

13  recover a money judgment for the unpaid assessments without

14  waiving any claim of lien.  The association is entitled to

15  recover its reasonable attorney's fees incurred in either a

16  lien foreclosure action or an action to recover a money

17  judgment for unpaid assessments.

18         (b)  A foreclosure action may not be initiated earlier

19  than 30 days after the association has given the unit owner

20  written notice of the association's intent to foreclose its

21  lien to collect the unpaid assessments secured by the lien.

22  The written notice is a condition precedent to the filing of

23  any foreclosure action.

24         1.  The written notice may be given by hand delivery to

25  the unit owner or sent by electronic transmission if the unit

26  owner has agreed to receive the association's notice by an

27  electronic format. If hand delivery is not possible or the

28  owner has not consented to receive the association's notice by

29  electronic format, written notice must be sent by registered

30  or certified mail and regular mail to the unit owner at the

31  last address given to the association by the unit owner, if

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    Florida Senate - 2007                           CS for SB 1844
    580-2335-07




 1  the address is within the United States, and to the address of

 2  the property that is subject to the lien.

 3         2.  If the unit owner has given the association an

 4  alternate address outside the United States, the written

 5  notice requirement is satisfied by sending a copy of the

 6  written notice to the unit owner by regular mail at the

 7  alternate address and by sending a copy to the property

 8  address by registered or certified mail and regular mail.

 9         3.  If the mailing is completed in compliance with this

10  subsection, the written notice is deemed to have been given

11  and is deemed to have been received by the unit owner 5 days

12  after the date of mailing, hand delivery, or electronic

13  transmission. Notwithstanding this subsection, the notice

14  requirements are inapplicable if a unit owner records a notice

15  of contest of lien or if an action to foreclose a mortgage on

16  the property is pending before any court. No foreclosure

17  judgment may be entered until at least 30 days after the

18  association gives written notice to the unit owner of its

19  intention to foreclose its lien to collect the unpaid

20  assessments.  If this notice is not given at least 30 days

21  before the foreclosure action is filed, and if the unpaid

22  assessments, including those coming due after the claim of

23  lien is recorded, are paid before the entry of a final

24  judgment of foreclosure, the association shall not recover

25  attorney's fees or costs.  The notice must be given by

26  delivery of a copy of it to the unit owner or by certified or

27  registered mail, return receipt requested, addressed to the

28  unit owner at his or her last known address; and, upon such

29  mailing, the notice shall be deemed to have been given, and

30  the court shall proceed with the foreclosure action and may

31  award attorney's fees and costs as permitted by law.  The

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    Florida Senate - 2007                           CS for SB 1844
    580-2335-07




 1  notice requirements of this subsection are satisfied if the

 2  unit owner records a notice of contest of lien as provided in

 3  subsection (5). The notice requirements of this subsection do

 4  not apply if an action to foreclose a mortgage on the

 5  condominium unit is pending before any court; if the rights of

 6  the association would be affected by such foreclosure; and if

 7  actual, constructive, or substitute service of process has

 8  been made on the unit owner.

 9         (c)  If the unit owner remains in possession of the

10  unit after a foreclosure judgment has been entered, the court,

11  in its discretion, may require the unit owner to pay a

12  reasonable rental for the unit.  If the unit is rented or

13  leased during the pendency of the foreclosure action, the

14  association is entitled to the appointment of a receiver to

15  collect the rent. The expenses of the receiver shall be paid

16  by the party that which does not prevail in the foreclosure

17  action.

18         (d)  The association may has the power to purchase the

19  condominium parcel at the foreclosure sale and to hold, lease,

20  mortgage, or convey it.

21         (e)1.  If the unit owner makes a qualifying offer at

22  any time before the entry of a foreclosure judgment, the

23  association shall suspend its foreclosure action or collection

24  efforts and agree to allow the unit owner to pay all amounts

25  due plus interest within 60 days after receipt of the

26  qualifying offer.

27         2.  For purposes of this paragraph, the term

28  "qualifying offer" means a written offer to pay all amounts

29  secured by the lien of the association plus the rate of

30  interest stated in the governing documents for delinquent

31  accounts or, if no such rate is stated, 10 percent interest.

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    Florida Senate - 2007                           CS for SB 1844
    580-2335-07




 1         3.  The unit owner's qualifying offer must be in

 2  writing. The offer must be included in an agreement prepared

 3  by the association's counsel which document must acknowledge

 4  that the amounts contained therein are secured by the lien of

 5  the association. If the unit owner makes a qualifying offer

 6  under this paragraph, the association may not add additional

 7  legal fees within the 60-day period other than a reasonable

 8  amount to prepare the written agreement required by this

 9  subsection.

10         4.  The qualifying offer to the association must be

11  delivered to the attorney of the association by hand delivery

12  or certified or registered mail, and is not deemed received by

13  the association until the offer is actually received by the

14  attorney. Notwithstanding this subparagraph, an offer is not

15  considered a qualifying offer if a notice of contest of lien

16  is recorded or if the offer is made more than 8 months after

17  the lien is recorded by the association unless a foreclosure

18  action has already been filed.

19         Section 2.  Subsection (5) of section 719.108, Florida

20  Statutes, is amended to read:

21         719.108  Rents and assessments; liability; lien and

22  priority; interest; collection; cooperative ownership.--

23         (5)(a)  Liens for rents and assessments may be

24  foreclosed by suit brought in the name of the association, in

25  like manner as a foreclosure of a mortgage on real property.

26  In any foreclosure, the unit owner shall pay a reasonable

27  rental for the cooperative parcel, if so provided in the

28  cooperative documents, and the plaintiff in the foreclosure is

29  entitled to the appointment of a receiver to collect the rent.

30  The association has the power, unless prohibited by the

31  cooperative documents, to bid on the cooperative parcel at the

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    Florida Senate - 2007                           CS for SB 1844
    580-2335-07




 1  foreclosure sale and to acquire and hold, lease, mortgage, or

 2  convey it.  Suit to recover a money judgment for unpaid rents

 3  and assessments may be maintained without waiving the lien

 4  securing them.

 5         (b)1.  If the unit owner makes a qualifying offer at

 6  any time before the entry of a foreclosure judgment, the

 7  association shall suspend its foreclosure action or collection

 8  efforts and agree to allow the unit owner to pay all amounts

 9  due plus interest within 60 days after receipt of the

10  qualifying offer.

11         2.  For purposes of this paragraph, the term

12  "qualifying offer" means a written offer to pay all amounts

13  secured by the lien of the association, plus the rate of

14  interest stated in the governing documents for delinquent

15  accounts or, if no such rate is stated, 10 percent interest.

16         3.  The unit owner's qualifying offer must be in

17  writing. The offer must be included in an agreement prepared

18  by the association's counsel which document must acknowledge

19  that the amounts contained therein are secured by the lien of

20  the association. If the unit owner makes a qualifying offer

21  under this paragraph, the association may not add additional

22  legal fees within the 60-day period other than a reasonable

23  amount to prepare the written agreement required by this

24  subsection.

25         4.  The qualifying offer to the association must be

26  delivered to the attorney of the association by hand delivery

27  or certified or registered mail and is not deemed received by

28  the association until the offer is actually received by the

29  attorney. Notwithstanding this subparagraph, an offer is not

30  considered a qualifying offer if a notice of contest of lien

31  is recorded or if the offer is made more than 8 months after

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    Florida Senate - 2007                           CS for SB 1844
    580-2335-07




 1  the lien is recorded by the association unless a foreclosure

 2  action has already been filed.

 3         Section 3.  This act shall take effect July 1, 2007.

 4  

 5          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 6                         Senate Bill 1844

 7                                 

 8  The committee substitute (CS) removes the requirement that
    condominium, cooperative, and homeowner's associations must
 9  notify the property owner by certified or registered mail when
    it files a lien based on the property owner's failure to pay
10  an assessment or other fee owed to the association.

11  The CS also removes the provision that would permit property
    owners to pay, over a period of 90 days, the attorney fees,
12  including interest at the standard interest rate, that are
    assessed against the property owner as a result of the
13  association's efforts to collect the debt that resulted in the
    lien.
14  
    The CS amends s. 718.116, F.S., to require a written notice
15  before a foreclosure action on a lien may be initiated by a
    condominium association, to specify how the notice must be
16  given, to provide for the suspension of the foreclosure action
    and collection efforts after a qualified offer is made by the
17  unit owner, and to specify the conditions for a qualified
    offer, including the payment of interest and attorney's fees.
18  
    The CS repeals the provisions in s. 718.116, F.S., that
19  prohibit condominium associations to recover attorney's fees
    or costs unless a written notice of the intent to foreclose is
20  given to the unit owner, that specify how the written notice
    must be made, and that specify the circumstances in which the
21  written notice is not required.

22  The bill amends s. 719.108, F.S., to require a written notice
    before a foreclosure action on a lien may be initiated by a
23  cooperative association, to specify how the notice must be
    given, to provide for the suspension of the foreclosure action
24  and collection efforts after a qualified offer is made by the
    unit owner, and to specify the conditions for a qualified
25  offer, including the payment of interest and attorney's fees.

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