Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. CS for SB 680
       
       
       
       
       
       
                                Barcode 929624                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  02/22/2012           .                                
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       The Committee on Judiciary (Thrasher) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 595 - 638
    4  and insert:
    5         Section 6. Paragraphs (a), (b), and (c) of subsection (1)
    6  of section 718.116, Florida Statutes, are amended to read:
    7         718.116 Assessments; liability; lien and priority;
    8  interest; collection.—
    9         (1)(a) A unit owner, regardless of how the unit owner has
   10  acquired his or her title has been acquired, including, but not
   11  limited to, by purchase at a foreclosure sale or by deed in lieu
   12  of foreclosure, is liable for all assessments that which come
   13  due while he or she is the unit owner. Additionally, a unit
   14  owner is jointly and severally liable with the previous unit
   15  owner for all unpaid assessments, late fees, interest, costs,
   16  and reasonable attorney fees incurred by the association in an
   17  attempt to collect all such amounts is jointly and severally
   18  liable with the previous owner for all unpaid assessments that
   19  came due up to the time of transfer of title. This liability is
   20  without prejudice to any right the present unit owner may have
   21  to recover from the previous unit owner the amounts paid by the
   22  present unit owner.
   23         (b)1. The liability of a first mortgagee or its successors
   24  successor or assignees who acquire title to a unit by
   25  foreclosure or by deed in lieu of foreclosure for the unpaid
   26  assessments, interest, administrative late fees, reasonable
   27  costs and attorney fees, and any other fee, cost, or expense
   28  incurred in the collection process which that became due before
   29  the mortgagee’s acquisition of title is limited to the lesser
   30  of:
   31         a. Only the unit’s unpaid common expenses and regular
   32  periodic assessments that which accrued or came due during the
   33  12 months immediately preceding the acquisition of title and for
   34  which payment in full has not been received by the association;
   35  or
   36         b. One percent of the original mortgage debt.
   37         2. Subparagraph 1. applies The provisions of this paragraph
   38  apply only if the first mortgagee joined the association as a
   39  defendant in the foreclosure action. Joinder of the association
   40  is not required if, on the date the complaint is filed, the
   41  association was dissolved or did not maintain an office or agent
   42  for service of process at a location that which was known to or
   43  reasonably discoverable by the mortgagee.
   44         3. The first mortgagee or its successors or assignees who
   45  acquire title to a unit by foreclosure or by deed in lieu of
   46  foreclosure are not liable for any interest, administrative late
   47  fee, reasonable cost or attorney fee, or any other fee, cost, or
   48  expense that came due before its acquisition of title. This
   49  subparagraph is intended to clarify existing law.
   50         4.2. An association, or its successor or assignee, that
   51  acquires title to a unit through the foreclosure of its lien for
   52  assessments is not liable for any unpaid assessments, late fees,
   53  interest, or reasonable attorney attorney’s fees and costs that
   54  came due before the association’s acquisition of title in favor
   55  of any other association, as defined in s. 718.103(2) or s.
   56  720.301(9), which holds a superior lien interest on the unit.
   57  This subparagraph is intended to clarify existing law.
   58         (c) The person acquiring title shall pay the amount owed to
   59  the association within 30 days after transfer of title. Failure
   60  to pay the full amount when due entitles shall entitle the
   61  association to record a claim of lien against the parcel for the
   62  amounts specified in this subsection and proceed in the same
   63  manner as provided in this section for the collection of the
   64  amount owed and any unpaid assessments coming due after the
   65  acquisition of title and other charges authorized by subsection
   66  (3) on any unpaid assessments coming due after the acquisition
   67  of title.
   68  
   69         Delete lines 1332 - 1416
   70  and insert:
   71         Section 15. Section 719.108, Florida Statutes, is amended
   72  to read:
   73         719.108 Rents and assessments; liability; lien and
   74  priority; interest; collection; cooperative ownership.—
   75         (1) A unit owner, regardless of how title is acquired,
   76  including, without limitation, a purchaser at a judicial sale,
   77  is shall be liable for all rents and assessments coming due
   78  while the unit owner owns the unit is in exclusive possession of
   79  a unit. A In a voluntary transfer, the unit owner is also in
   80  exclusive possession shall be jointly and severally liable with
   81  the previous unit owner for all unpaid rents and assessments,
   82  late fees, interest, costs, and reasonable attorney fees
   83  incurred in an attempt to collect all such amounts that came due
   84  against the previous unit owner for his or her share of the
   85  common expenses up to the time of the transfer of title. This
   86  liability is, without prejudice to the rights of the present
   87  unit owner in exclusive possession to recover from the previous
   88  unit owner any the amounts paid by the present unit owner in
   89  exclusive possession therefor.
   90         (2) The liability for rents and assessments may not be
   91  avoided by waiver of the use or enjoyment of any common areas or
   92  by abandonment of the unit for which the rents and assessments
   93  are made.
   94         (3) Notwithstanding any other provision of this section,
   95  the liability of a first mortgagee or its successor or assignees
   96  who acquire title to a unit by foreclosure or by deed in lieu of
   97  foreclosure for the unpaid assessments that became due before
   98  the mortgagee’s acquisition of title is limited to the lesser
   99  of:
  100         (a) The unit’s unpaid common expenses and regular periodic
  101  or special assessments that accrued or came due during the 12
  102  months immediately preceding the acquisition of title and for
  103  which payment in full has not been received by the association;
  104  or
  105         (b) One percent of the original mortgage debt. This
  106  paragraph applies only if the first mortgagee joined the
  107  association as a defendant in the foreclosure action. Joinder of
  108  the association is not required if, on the date the complaint is
  109  filed, the association was dissolved or did not maintain an
  110  office or agent for service of process at a location that was
  111  known to or reasonably discoverable by the mortgagee.
  112         (4) The person acquiring title shall pay the amount owed to
  113  the association within 30 days after transfer of title. Failure
  114  to pay the full amount when due entitles the association to
  115  record a claim of lien against the parcel and proceed in the
  116  same manner as provided in this section for the collection of
  117  unpaid assessments.
  118         (5)(3) Rents and assessments, and installments on them, not
  119  paid when due bear interest at the rate provided in the
  120  cooperative documents from the date due until paid. This rate
  121  may not exceed the rate allowed by law and, if a rate is not
  122  provided in the cooperative documents, accrues at 18 percent per
  123  annum. If the cooperative documents or bylaws so provide, the
  124  association may charge an administrative late fee in addition to
  125  such interest, not to exceed the greater of $25 or 5 percent of
  126  each installment of the assessment for each delinquent
  127  installment that the payment is late. Any payment received by an
  128  association must be applied first to any interest accrued by the
  129  association, then to any administrative late fee, then to any
  130  costs and reasonable attorney attorney’s fees incurred in
  131  collection, and then to the delinquent assessment. The foregoing
  132  applies notwithstanding any restrictive endorsement,
  133  designation, or instruction placed on or accompanying a payment.
  134  A late fee is not subject to chapter 687 or s. 719.303(4).
  135         (6)(4) The association has a lien on each cooperative
  136  parcel for any unpaid rents and assessments, plus interest, and
  137  any authorized administrative late fees. If authorized by the
  138  cooperative documents, the lien also secures reasonable attorney
  139  attorney’s fees incurred by the association incident to the
  140  collection of the rents and assessments or enforcement of such
  141  lien. The lien is effective from and after recording a claim of
  142  lien in the public records in the county in which the
  143  cooperative parcel is located which states the description of
  144  the cooperative parcel, the name of the unit owner, the amount
  145  due, and the due dates. The lien expires if a claim of lien is
  146  not filed within 1 year after the date the assessment was due,
  147  and the lien does not continue for longer than 1 year after the
  148  claim of lien has been recorded unless, within that time, an
  149  action to enforce the lien is commenced. Except as otherwise
  150  provided in this chapter, a lien may not be filed by the
  151  association against a cooperative parcel until 30 days after the
  152  date on which a notice of intent to file a lien has been
  153  delivered to the owner.
  154         (a) The notice must be sent to the unit owner at the
  155  address of the unit by first-class United States mail and:
  156         1. If the most recent address of the unit owner on the
  157  records of the association is the address of the unit, the
  158  notice must be sent by registered or certified mail, return
  159  receipt requested, to the unit owner at the address of the unit.
  160         2. If the most recent address of the unit owner on the
  161  records of the association is in the United States, but is not
  162  the address of the unit, the notice must be sent by registered
  163  or certified mail, return receipt requested, to the unit owner
  164  at his or her most recent address.
  165         3. If the most recent address of the unit owner on the
  166  records of the association is not in the United States, the
  167  notice must be sent by first-class United States mail to the
  168  unit owner at his or her most recent address.
  169         (b) A notice that is sent pursuant to this subsection is
  170  deemed delivered upon mailing.
  171         (7)(5) Liens for rents and assessments may be foreclosed by
  172  suit brought in the name of the association, in like manner as a
  173  foreclosure of a mortgage on real property. In any foreclosure,
  174  the unit owner shall pay a reasonable rental for the cooperative
  175  parcel, if so provided in the cooperative documents, and the
  176  plaintiff in the foreclosure is entitled to the appointment of a
  177  receiver to collect the rent. The association has the power,
  178  unless prohibited by the cooperative documents, to bid on the
  179  cooperative parcel at the foreclosure sale and to acquire and
  180  hold, lease, mortgage, or convey it. Suit to recover a money
  181  judgment for unpaid rents and assessments may be maintained
  182  without waiving the lien securing them.
  183         (8)(6) Within 15 days after request by a unit owner or
  184  mortgagee, the association shall provide a certificate stating
  185  all assessments and other moneys owed to the association by the
  186  unit owner with respect to the cooperative parcel. Any person
  187  other than the unit owner who relies upon such certificate shall
  188  be protected thereby. Notwithstanding any limitation on transfer
  189  fees contained in s. 719.106(1)(i), the association or its
  190  authorized agent may charge a reasonable fee for the preparation
  191  of the certificate.
  192         (9)(7) The remedies provided in this section do not exclude
  193  other remedies provided by the cooperative documents and
  194  permitted by law.
  195         (10)(8)(a) A No unit owner may not be excused from the
  196  payment of his or her share of the rents or assessments of a
  197  cooperative unless all unit owners are likewise proportionately
  198  excused from payment, except as provided in subsection (8) (6)
  199  and in the following cases:
  200         1. If the cooperative documents so provide, a developer or
  201  other person owning cooperative units offered for sale may be
  202  excused from the payment of the share of the common expenses,
  203  assessments, and rents related to those units for a stated
  204  period of time. The period must terminate no later than the
  205  first day of the fourth calendar month following the month in
  206  which the right of exclusive possession is first granted to a
  207  unit owner. However, the developer must pay the portion of
  208  common expenses incurred during that period which exceed the
  209  amount assessed against other unit owners.
  210         2. A developer, or other person with an ownership interest
  211  in cooperative units or having an obligation to pay common
  212  expenses, may be excused from the payment of his or her share of
  213  the common expenses which would have been assessed against those
  214  units during the period of time that he or she shall have
  215  guaranteed to each purchaser in the purchase contract or in the
  216  cooperative documents, or by agreement between the developer and
  217  a majority of the unit owners other than the developer, that the
  218  assessment for common expenses of the cooperative imposed upon
  219  the unit owners would not increase over a stated dollar amount
  220  and shall have obligated himself or herself to pay any amount of
  221  common expenses incurred during that period and not produced by
  222  the assessments at the guaranteed level receivable from other
  223  unit owners.
  224         (b) If the purchase contract, cooperative documents, or
  225  agreement between the developer and a majority of unit owners
  226  other than the developer provides for the developer or another
  227  person to be excused from the payment of assessments pursuant to
  228  paragraph (a), no funds receivable from unit owners payable to
  229  the association or collected by the developer on behalf of the
  230  association, other than regular periodic assessments for common
  231  expenses as provided in the cooperative documents and disclosed
  232  in the estimated operating budget pursuant to s. 719.503(1)(b)6.
  233  or s. 719.504(20)(b), may not be used for payment of common
  234  expenses before prior to the expiration of the period during
  235  which the developer or other person is so excused. This
  236  restriction applies to funds including, but not limited to,
  237  capital contributions or startup funds collected from unit
  238  purchasers at closing.
  239         (11)(9) The specific purposes of any special assessment,
  240  including any contingent special assessment levied in
  241  conjunction with the purchase of an insurance policy authorized
  242  by s. 719.104(3), approved in accordance with the cooperative
  243  documents must shall be set forth in a written notice of such
  244  assessment sent or delivered to each unit owner. The funds
  245  collected pursuant to a special assessment may shall be used
  246  only for the specific purpose or purposes set forth in such
  247  notice or returned to the unit owners. However, upon completion
  248  of such specific purposes, any excess funds are shall be
  249  considered common surplus and may, at the discretion of the
  250  board, either be returned to the unit owners or applied as a
  251  credit toward future assessments.
  252         (12)(10)(a) If the unit is occupied by a tenant and the
  253  unit owner is delinquent in paying any monetary obligation due
  254  to the association, the association may make a written demand
  255  that the tenant pay to the association the subsequent rental
  256  payments and continue to make such payments until all monetary
  257  obligations of the unit owner related to the unit have been paid
  258  in full to the association. The tenant must pay the monetary
  259  obligations to the association until the association releases
  260  the tenant or the tenant discontinues tenancy in the unit.
  261         1. The association must provide the tenant a notice, by
  262  hand delivery or United States mail, in substantially the
  263  following form:
  264  
  265         Pursuant to section 719.108(12) 719.108(10), Florida
  266         Statutes, we demand that you make your rent payments
  267         directly to the cooperative association and continue
  268         doing so until the association notifies you otherwise.
  269  
  270         Payment due the cooperative association may be in the
  271         same form as you paid your landlord and must be sent
  272         by United States mail or hand delivery to ...(full
  273         address)..., payable to ...(name)....
  274  
  275         Your obligation to pay your rent to the association
  276         begins immediately, unless you have already paid rent
  277         to your landlord for the current period before
  278         receiving this notice. In that case, you must provide
  279         the association written proof of your payment within
  280         14 days after receiving this notice and your
  281         obligation to pay rent to the association begins would
  282         then begin with the next rental period.
  283  
  284         Pursuant to section 719.108(12) 719.108(10), Florida
  285         Statutes, your payment of rent to the association
  286         gives you complete immunity from any claim for the
  287         rent by your landlord.
  288  
  289         2. The association must mail written notice to the unit
  290  owner of the association’s demand that the tenant make payments
  291  to the association.
  292         3. The association shall, upon request, provide the tenant
  293  with written receipts for payments made.
  294         4. A tenant is immune from any claim by the landlord or
  295  unit owner related to the rent timely paid to the association
  296  after the association has made written demand.
  297         (b) If the tenant paid rent to the landlord or unit owner
  298  for a given rental period before receiving the demand from the
  299  association and provides written evidence to the association of
  300  having paid the rent within 14 days after receiving the demand,
  301  the tenant shall begin making rental payments to the association
  302  for the following rental period and shall continue making rental
  303  payments to the association to be credited against the monetary
  304  obligations of the unit owner until the association releases the
  305  tenant or the tenant discontinues tenancy in the unit.
  306         (c) The liability of the tenant may not exceed the amount
  307  due from the tenant to the tenant’s landlord. The tenant’s
  308  landlord shall provide the tenant a credit against rents due to
  309  the landlord in the amount of moneys paid to the association.
  310         (d) The association may issue notice under s. 83.56 and sue
  311  for eviction under ss. 83.59-83.625 as if the association were a
  312  landlord under part II of chapter 83 if the tenant fails to pay
  313  a required payment to the association after written demand has
  314  been made to the tenant. However, the association is not
  315  otherwise considered a landlord under chapter 83 and
  316  specifically has no obligations under s. 83.51.
  317         (e) The tenant does not, by virtue of payment of monetary
  318  obligations to the association, have any of the rights of a unit
  319  owner to vote in any election or to examine the books and
  320  records of the association.
  321         (f) A court may supersede the effect of this subsection by
  322  appointing a receiver.
  323  
  324         Delete lines 1850 - 1871
  325  and insert:
  326         Section 20. Paragraphs (b), (c), and (d) of subsection (2)
  327  of section 720.3085, Florida Statutes, are amended to read:
  328         720.3085 Payment for assessments; lien claims.—
  329         (2)
  330         (b) Regardless of how the parcel owner has acquired title,
  331  including, but not limited to, by purchase at a foreclosure
  332  sale, a parcel owner is liable for all assessments that come due
  333  while he or she is the parcel owner. A parcel owner is also
  334  jointly and severally liable with the previous parcel owner for
  335  all unpaid assessments, late fees, interest, costs, and
  336  reasonable attorney fees incurred by the association in an
  337  attempt to collect all such amounts that came due up to the time
  338  of transfer of title. This liability is without prejudice to any
  339  right the present parcel owner may have to recover any amounts
  340  paid by the present owner from the previous owner the amounts
  341  paid by the present owner.
  342         (c)1.Notwithstanding anything to the contrary contained in
  343  this section, The liability of a first mortgagee, or its
  344  successors successor or assignees assignee as a subsequent
  345  holder of the first mortgage who acquire acquires title to a
  346  parcel by foreclosure or by deed in lieu of foreclosure for the
  347  unpaid assessments, interest, administrative late fees,
  348  reasonable costs and attorney fees, and any other fee, cost, or
  349  expense incurred in the collection process that became due
  350  before the mortgagee’s acquisition of title is limited to, shall
  351  be the lesser of:
  352         a.1.Only the parcel’s unpaid common expenses and regular
  353  periodic or special assessments that accrued or came due during
  354  the 12 months immediately preceding the acquisition of title and
  355  for which payment in full has not been received by the
  356  association; or
  357         b.2. One percent of the original mortgage debt.
  358         2. Subparagraph 1. applies The limitations on first
  359  mortgagee liability provided by this paragraph apply only if the
  360  first mortgagee filed suit against the parcel owner and
  361  initially joined the association as a defendant in the mortgagee
  362  foreclosure action. Joinder of the association is not required
  363  if, on the date the complaint is filed, the association was
  364  dissolved or did not maintain an office or agent for service of
  365  process at a location that was known to or reasonably
  366  discoverable by the mortgagee.
  367         3. The first mortgagee or its successors or assignees who
  368  acquire title to a parcel by foreclosure or by deed in lieu of
  369  foreclosure are not liable for any interest, administrative late
  370  fee, reasonable cost or attorney fee, or any other fee, cost, or
  371  expense that came due before its acquisition of title. This
  372  subparagraph is intended to clarify existing law.
  373         4.(d) An association, or its successor or assignee, that
  374  acquires title to a parcel through the foreclosure of its lien
  375  for assessments is not liable for any unpaid assessments, late
  376  fees, interest, or reasonable attorney attorney’s fees and costs
  377  that came due before the association’s acquisition of title in
  378  favor of any other association, as defined in s. 718.103(2) or
  379  s. 720.301(9), which holds a superior lien interest on the
  380  parcel. This paragraph is intended to clarify existing law.
  381         (d) The person acquiring title shall pay the amount owed to
  382  the association within 30 days after transfer of title. Failure
  383  to pay the full amount when due entitles the association to
  384  record a claim of lien against the parcel for the amounts
  385  specified in this subsection and proceed in the same manner as
  386  provided in this section for the collection of the amount owed
  387  and any unpaid assessments coming due after the acquisition of
  388  title and other charges authorized by subsection (3) on any
  389  unpaid assessments coming due after the acquisition of title.
  390  
  391  ================= T I T L E  A M E N D M E N T ================
  392         And the title is amended as follows:
  393         Delete lines 88 - 89
  394  and insert:
  395         revising liability of unit owners; providing liability
  396         limitations of a first mortgagee or its successor or
  397         assignees who acquire title to a unit by foreclosure;
  398         providing requirements for persons acquiring title;
  399         authorizing the association to record a claim of lien
  400         under certain conditions; amending s.
  401  
  402         Delete line 119
  403  and insert:
  404         revising liability of certain parcel owners acquiring
  405         title; requiring a person acquiring title to pay
  406         certain amounts due within a certain time period;