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.