Florida Senate - 2014 CS for SB 1466
By the Committee on Regulated Industries; and Senators Lee and
Evers
580-03264-14 20141466c1
1 A bill to be entitled
2 An act relating to residential communities; amending
3 s. 468.431, F.S.; revising the term “community
4 association management”; amending s. 718.116, F.S.;
5 allowing for reasonable charges to be imposed for
6 collection of a delinquent assessment; requiring a
7 claim of lien on a condominium parcel to be in a
8 specific form; requiring a release of lien to be in a
9 specific form; requiring a preforeclosure notice to be
10 in a specific form; amending s. 718.121, F.S.;
11 requiring a prelien notice to be in a specific form;
12 amending s. 719.108, F.S.; allowing for reasonable
13 charges to be imposed for collection of a delinquent
14 assessment; deleting a provision providing for the
15 expiration of certain liens; revising notice
16 requirements; requiring a prelien notice to be in a
17 specific form; requiring a claim of lien on a
18 cooperative parcel to be in a specific form; providing
19 for the content of a recording notice; requiring a
20 release of lien to be in a specific form; amending s.
21 720.3085, F.S.; requiring a claim of lien on a parcel
22 within a homeowners’ association to be in a specific
23 form; requiring a release of lien to be in a specific
24 form; allowing for reasonable charges to be imposed
25 for collection of a delinquent assessment; requiring a
26 prelien notice to be in a specific form; requiring a
27 preforeclosure notice to be in a specific form;
28 providing an effective date.
29
30 Be It Enacted by the Legislature of the State of Florida:
31
32 Section 1. Subsection (2) of section 468.431, Florida
33 Statutes, is amended to read:
34 468.431 Definitions.—As used in this part:
35 (2) “Community association management” means any of the
36 following practices requiring substantial specialized knowledge,
37 judgment, and managerial skill when done for remuneration and
38 when the association or associations served contain more than 10
39 units or have an annual budget or budgets in excess of $100,000:
40 controlling or disbursing funds of a community association,
41 preparing budgets or other financial documents for a community
42 association, assisting in the noticing or conduct of community
43 association meetings, determining the number of days required
44 for statutory notices, determining amounts due to the
45 association, collecting amounts due to the association before
46 filing of a civil action, calculating the votes required for a
47 quorum or to approve a proposition or amendment, completing
48 forms related to the management of a community association that
49 have been created by statute or by a state agency, drafting
50 meeting notices and agendas, calculating and preparing
51 certificates of assessment and estoppel certificates, responding
52 to requests for certificates of assessment and estoppel
53 certificates, negotiating monetary or performance terms of a
54 contract subject to approval by an association, drafting
55 prearbitration demands, coordinating or performing maintenance
56 for real or personal property and other related routine services
57 involved in the operation of a community association, and
58 complying with the association’s governing documents and the
59 requirements of law as necessary to perform such practices and
60 coordinating maintenance for the residential development and
61 other day-to-day services involved with the operation of a
62 community association. A person who performs clerical or
63 ministerial functions under the direct supervision and control
64 of a licensed manager or who is charged only with performing the
65 maintenance of a community association and who does not assist
66 in any of the management services described in this subsection
67 is not required to be licensed under this part.
68 Section 2. Subsections (3), (5), and (6) of section
69 718.116, Florida Statutes, are amended to read:
70 718.116 Assessments; liability; lien and priority;
71 interest; collection.—
72 (3) Assessments and installments on assessments which are
73 not paid when due bear interest at the rate provided in the
74 declaration, from the due date until paid. The rate may not
75 exceed the rate allowed by law, and, if no rate is provided in
76 the declaration, interest accrues at the rate of 18 percent per
77 year. If provided by the declaration or bylaws, the association
78 may, in addition to such interest, charge an administrative late
79 fee of up to the greater of $25 or 5 percent of each delinquent
80 installment for which the payment is late. The association may
81 also recover from the unit owner any reasonable charges imposed
82 upon the association under a contract with its management or
83 bookkeeping company, or collection agent, incurred in connection
84 with collecting a delinquent assessment. Any payment received by
85 an association must be applied first to any interest accrued by
86 the association, then to any administrative late fee, then to
87 any costs and reasonable attorney attorney’s fees incurred in
88 collection, then to any reasonable costs for collection services
89 contracted by the association, and then to the delinquent
90 assessment. The foregoing is applicable notwithstanding any
91 restrictive endorsement, designation, or instruction placed on
92 or accompanying a payment. A late fee is not subject to chapter
93 687 or s. 718.303(4).
94 (5)(a) The association has a lien on each condominium
95 parcel to secure the payment of assessments. Except as otherwise
96 provided in subsection (1) and as set forth below, the lien is
97 effective from and shall relate back to the recording of the
98 original declaration of condominium, or, in the case of lien on
99 a parcel located in a phase condominium, the last to occur of
100 the recording of the original declaration or amendment thereto
101 creating the parcel. However, as to first mortgages of record,
102 the lien is effective from and after recording of a claim of
103 lien in the public records of the county in which the
104 condominium parcel is located. Nothing in this subsection shall
105 be construed to bestow upon any lien, mortgage, or certified
106 judgment of record on April 1, 1992, including the lien for
107 unpaid assessments created herein, a priority which, by law, the
108 lien, mortgage, or judgment did not have before that date.
109 (b) To be valid, A claim of lien must be in substantially
110 the following form:
111
112 CLAIM OF LIEN
113
114 Before me, the undersigned notary public, personally appeared
115 ...(name)..., who was duly sworn and says that he/she is the
116 authorized agent of the lienor, ...(name of association)...,
117 whose address is ...(address)..., and that in accordance with
118 the Condominium Act and the declaration of ...(name of
119 condominium)..., a condominium, and the articles of
120 incorporation and bylaws of the association, the association
121 makes this claim of lien for ...(basis for claim of lien and
122 date(s) of delinquency)..., for the following described real
123 property upon which the association asserts this lien:
124
125 UNIT NO. .... OF ...(NAME OF CONDOMINIUM)..., A
126 CONDOMINIUM AS SET FORTH IN THE DECLARATION OF
127 CONDOMINIUM AND THE EXHIBITS ANNEXED THERETO AND
128 FORMING A PART THEREOF, RECORDED IN OFFICIAL RECORDS
129 BOOK ...., PAGE ...., OF THE PUBLIC RECORDS OF ....
130 COUNTY, FLORIDA. THE ABOVE DESCRIPTION INCLUDES, BUT
131 IS NOT LIMITED TO, ALL APPURTENANCES TO THE
132 CONDOMINIUM UNIT ABOVE DESCRIBED, INCLUDING THE
133 UNDIVIDED INTEREST IN THE COMMON ELEMENTS OF SAID
134 CONDOMINIUM.
135
136 The property is owned by ...(name of debtor)..., Debtor. There
137 remains unpaid to the association, the sum of $..... This lien
138 secures these amounts, as well as any unpaid assessments and
139 monetary obligations, interest thereon, and costs of collection
140 that may accrue in the future and any other amounts that a lien
141 may secure pursuant to Chapter 718, Florida Statutes.
142
143 ...(signature of witness)... ...(signature of authorized
144 agent)...
145 Print name: .... Print name: _....
146
147 ...(signature of witness)...
148 Print name: ....
149
150 Sworn to (or affirmed) and subscribed before me this .... day of
151 ...., ...(year)..., by ...(name of person making statement)....
152 ...(Signature of Notary Public)...
153 ...(Print, type, or stamp commissioned name of Notary Public)...
154 Personally Known.... OR Produced.... as identification.
155
156 must state the description of the condominium parcel, the name
157 of the record owner, the name and address of the association,
158 the amount due, and the due dates. It must be executed and
159 acknowledged by an officer or authorized agent of the
160 association. The lien is not effective 1 year after the claim of
161 lien was recorded unless, within that time, an action to enforce
162 the lien is commenced. The 1-year period is automatically
163 extended for any length of time during which the association is
164 prevented from filing a foreclosure action by an automatic stay
165 resulting from a bankruptcy petition filed by the parcel owner
166 or any other person claiming an interest in the parcel. The
167 claim of lien secures all unpaid assessments that are due and
168 that may accrue after the claim of lien is recorded and through
169 the entry of a final judgment, as well as interest, authorized
170 administrative late fees, and all reasonable costs and attorney
171 attorney’s fees incurred by the association incident to the
172 collection process, including, but not limited to, any
173 reasonable costs for collection services contracted by the
174 association. Upon payment in full, the person making the payment
175 is entitled to a satisfaction of the lien.
176 (c) By recording a notice in substantially the following
177 form, a unit owner or the unit owner’s agent or attorney may
178 require the association to enforce a recorded claim of lien
179 against his or her condominium parcel:
180
181 NOTICE OF CONTEST OF LIEN
182
183 TO: ...(Name and address of association)... You are
184 notified that the undersigned contests the claim of lien filed
185 by you on ...., ...(year)..., and recorded in Official Records
186 Book .... at Page ...., of the public records of .... County,
187 Florida, and that the time within which you may file suit to
188 enforce your lien is limited to 90 days from the date of service
189 of this notice. Executed this .... day of ...., ...(year)....
190 Signed: ...(Owner or Attorney)...
191
192 After notice of contest of lien has been recorded, the clerk of
193 the circuit court shall mail a copy of the recorded notice to
194 the association by certified mail, return receipt requested, at
195 the address shown in the claim of lien or most recent amendment
196 to it and shall certify to the service on the face of the
197 notice. Service is complete upon mailing. After service, the
198 association has 90 days in which to file an action to enforce
199 the lien; and, if the action is not filed within the 90-day
200 period, the lien is void. However, the 90-day period shall be
201 extended for any length of time during which the association is
202 prevented from filing its action because of an automatic stay
203 resulting from the filing of a bankruptcy petition by the unit
204 owner or by any other person claiming an interest in the parcel.
205 (d) A release of lien must be in substantially the
206 following form:
207
208 RELEASE OF LIEN
209
210 The undersigned lienor, in consideration of the final payment in
211 the amount of $...., hereby waives and releases its lien and
212 right to claim a lien for unpaid assessments through ....,
213 ...(year)..., recorded in Official Records Book .... at Page
214 ...., of the public records of .... County, Florida, for the
215 following described real property:
216
217 UNIT NO. .... OF ...(NAME OF CONDOMINIUM)..., A
218 CONDOMINIUM AS SET FORTH IN THE DECLARATION OF
219 CONDOMINIUM AND THE EXHIBITS ANNEXED THERETO AND
220 FORMING A PART THEREOF, RECORDED IN OFFICIAL RECORDS
221 BOOK ...., PAGE ...., OF THE PUBLIC RECORDS OF ....
222 COUNTY, FLORIDA. THE ABOVE DESCRIPTION INCLUDES, BUT
223 IS NOT LIMITED TO, ALL APPURTENANCES TO THE
224 CONDOMINIUM UNIT ABOVE DESCRIBED, INCLUDING THE
225 UNDIVIDED INTEREST IN THE COMMON ELEMENTS OF SAID
226 CONDOMINIUM.
227
228 ...(signature of witness)... ...(signature of authorized
229 agent)...
230 Print name: .... Print name: ....
231
232 ...(signature of witness)...
233 Print name: ....
234
235 Sworn to (or affirmed) and subscribed before me this .... day of
236 ...., ...(year)..., by ...(name of person making statement)....
237 ...(Signature of Notary Public)...
238 ...(Print, type, or stamp commissioned name of Notary Public)...
239 Personally Known.... OR Produced.... as identification.
240
241 (6)(a) The association may bring an action in its name to
242 foreclose a lien for assessments in the manner a mortgage of
243 real property is foreclosed and may also bring an action to
244 recover a money judgment for the unpaid assessments without
245 waiving any claim of lien. The association is entitled to
246 recover its reasonable attorney’s fees incurred in either a lien
247 foreclosure action or an action to recover a money judgment for
248 unpaid assessments.
249 (b) No foreclosure judgment may be entered until at least
250 30 days after the association gives written notice to the unit
251 owner of its intention to foreclose its lien to collect the
252 unpaid assessments. The notice must be in substantially the
253 following form:
254
255 DELINQUENT ASSESSMENT
256
257 This letter is to inform you a claim of lien has been filed
258 against your property because you have not paid the ....
259 assessment to .... Association. The Association intends to
260 foreclose the lien and collect the unpaid amount within 30 days
261 of this letter being provided to you.
262
263 You owe the interest accruing from (month/year) to the present.
264 As of the date of this letter, the total amount due with
265 interest is $..... All costs of any action and interest from
266 this day forward will also be charged to your account.
267
268 Any questions concerning this matter should be directed to
269 ...(insert name, addresses and phone numbers of Association
270 representative)....
271
272 If this notice is not given at least 30 days before the
273 foreclosure action is filed, and if the unpaid assessments,
274 including those coming due after the claim of lien is recorded,
275 are paid before the entry of a final judgment of foreclosure,
276 the association shall not recover attorney’s fees or costs. The
277 notice must be given by delivery of a copy of it to the unit
278 owner or by certified or registered mail, return receipt
279 requested, addressed to the unit owner at his or her last known
280 address; and, upon such mailing, the notice shall be deemed to
281 have been given, and the court shall proceed with the
282 foreclosure action and may award attorney’s fees and costs as
283 permitted by law. The notice requirements of this subsection are
284 satisfied if the unit owner records a notice of contest of lien
285 as provided in subsection (5). The notice requirements of this
286 subsection do not apply if an action to foreclose a mortgage on
287 the condominium unit is pending before any court; if the rights
288 of the association would be affected by such foreclosure; and if
289 actual, constructive, or substitute service of process has been
290 made on the unit owner.
291 (c) If the unit owner remains in possession of the unit
292 after a foreclosure judgment has been entered, the court, in its
293 discretion, may require the unit owner to pay a reasonable
294 rental for the unit. If the unit is rented or leased during the
295 pendency of the foreclosure action, the association is entitled
296 to the appointment of a receiver to collect the rent. The
297 expenses of the receiver shall be paid by the party which does
298 not prevail in the foreclosure action.
299 (d) The association has the power to purchase the
300 condominium parcel at the foreclosure sale and to hold, lease,
301 mortgage, or convey it.
302 Section 3. Subsection (4) of section 718.121, Florida
303 Statutes, is amended to read:
304 718.121 Liens.—
305 (4) Except as otherwise provided in this chapter, no lien
306 may be filed by the association against a condominium unit until
307 30 days after the date on which a notice of intent to file a
308 lien has been delivered to the owner by registered or certified
309 mail, return receipt requested, and by first-class United States
310 mail to the owner at his or her last address as reflected in the
311 records of the association, if the address is within the United
312 States, and delivered to the owner at the address of the unit if
313 the owner’s address as reflected in the records of the
314 association is not the unit address. If the address reflected in
315 the records is outside the United States, sending the notice to
316 that address and to the unit address by first-class United
317 States mail is sufficient. Delivery of the notice shall be
318 deemed given upon mailing as required by this subsection. The
319 notice must be in substantially the following form:
320
321 NOTICE OF INTENT TO RECORD A CLAIM OF LIEN
322
323 Re: Unit .... of ...(name of association)...
324
325 The following amounts are currently due on your account to ....
326 Association and must be paid within thirty (30) days after your
327 receipt of this letter. This letter shall serve as the
328 Association’s notice of intent to record a claim of lien against
329 your property after thirty (30) days from your receipt of this
330 letter, unless you pay in full the amounts set forth below:
331
332 Maintenance due ...(dates)... ________ $....
333 Late fee, if applicable $....
334 Interest through ________* $....
335 Certified mail charges $....
336 Other costs $....
337
338 TOTAL OUTSTANDING $....
339
340 *Interest accrues at the rate of $.... per day.
341 Section 4. Subsections (3) and (4) of section 719.108,
342 Florida Statutes, are amended to read:
343 719.108 Rents and assessments; liability; lien and
344 priority; interest; collection; cooperative ownership.—
345 (3) Rents and assessments, and installments on them, not
346 paid when due bear interest at the rate provided in the
347 cooperative documents from the date due until paid. This rate
348 may not exceed the rate allowed by law and, if a rate is not
349 provided in the cooperative documents, accrues at 18 percent per
350 annum. If the cooperative documents or bylaws so provide, the
351 association may charge an administrative late fee in addition to
352 such interest, not to exceed the greater of $25 or 5 percent of
353 each installment of the assessment for each delinquent
354 installment that the payment is late. The association may also
355 recover from the unit owner any reasonable charges imposed upon
356 the association under a contract with its management or
357 bookkeeping company, or collection agent, incurred in connection
358 with collecting a delinquent assessment. Any payment received by
359 an association must be applied first to any interest accrued by
360 the association, then to any administrative late fee, then to
361 any costs and reasonable attorney attorney’s fees incurred in
362 collection, then to any reasonable costs for collection services
363 contracted for by the association, and then to the delinquent
364 assessment. The foregoing applies notwithstanding any
365 restrictive endorsement, designation, or instruction placed on
366 or accompanying a payment. A late fee is not subject to chapter
367 687 or s. 719.303(4).
368 (4) The association has a lien on each cooperative parcel
369 for any unpaid rents and assessments, plus interest, any
370 reasonable costs for collection services contracted for by the
371 association, and any authorized administrative late fees. If
372 authorized by the cooperative documents, the lien also secures
373 reasonable attorney attorney’s fees incurred by the association
374 and all reasonable collection costs incident to the collection
375 of the rents and assessments or enforcement of such lien. The
376 lien is effective from and after recording a claim of lien in
377 the public records in the county in which the cooperative parcel
378 is located which states the description of the cooperative
379 parcel, the name of the unit owner, the amount due, and the due
380 dates. The lien expires if a claim of lien is not filed within 1
381 year after the date the assessment was due, and the lien does
382 not continue for longer than 1 year after the claim of lien has
383 been recorded unless, within that time, an action to enforce the
384 lien is commenced. Except as otherwise provided in this chapter,
385 a lien may not be filed by the association against a cooperative
386 parcel until 30 days after the date on which a notice of intent
387 to file a lien has been delivered to the owner.
388 (a) The notice must be sent to the unit owner at the
389 address of the unit by first-class United States mail, and the
390 notice must be in substantially the following form:
391
392 NOTICE OF INTENT TO RECORD A CLAIM OF LIEN
393
394 Re: Unit .... of ...(name of cooperative)...
395
396 The following amounts are currently due on your account to ....
397 Association and must be paid within thirty (30) days after your
398 receipt of this letter. This letter shall serve as the
399 Association’s notice of intent to record a claim of lien against
400 your property after thirty (30) days from your receipt of this
401 letter, unless you pay in full the amounts set forth below:
402
403 Maintenance due ...(dates)... ________ $....
404 Late fee, if applicable $....
405 Interest through ________* $....
406 Certified mail charges $....
407 Other costs $....
408
409 TOTAL OUTSTANDING $....
410
411 *Interest accrues at the rate of $.... per day
412 1. If the most recent address of the unit owner on the
413 records of the association is the address of the unit, the
414 notice must be sent by registered or certified mail, return
415 receipt requested, to the unit owner at the address of the unit.
416 2. If the most recent address of the unit owner on the
417 records of the association is in the United States, but is not
418 the address of the unit, the notice must be sent by registered
419 or certified mail, return receipt requested, to the unit owner
420 at his or her most recent address.
421 3. If the most recent address of the unit owner on the
422 records of the association is not in the United States, the
423 notice must be sent by first-class United States mail to the
424 unit owner at his or her most recent address.
425 (b)
426 A notice that is sent pursuant to this paragraph subsection is
427 deemed delivered upon mailing.
428 (b) A claim of lien must be in substantially the following
429 form:
430
431 CLAIM OF LIEN
432
433 Before me, the undersigned notary public, personally appeared
434 ...(name)... who was duly sworn and says that he/she is the
435 authorized agent of the lienor, ...(name of association)...,
436 whose address is ...(address)..., and that in accordance with
437 the Cooperative Act and the cooperative documents of ...(name of
438 cooperative)..., a cooperative, and the articles of
439 incorporation and bylaws of the association, the association
440 makes this claim of lien for ...(basis for claim of lien and
441 date(s) of delinquency)..., for the following described property
442 upon which the association asserts this lien:
443
444 THAT COOPERATIVE PARCEL WHICH INCLUDES UNIT NO. ....
445 OF ...(NAME OF COOPERATIVE)..., A COOPERATIVE AS SET
446 FORTH IN THE COOPERATIVE DOCUMENTS AND THE EXHIBITS
447 ANNEXED THERETO AND FORMING A PART THEREOF, RECORDED
448 IN OFFICIAL RECORDS BOOK ...., PAGE ...., OF THE
449 PUBLIC RECORDS OF .... COUNTY, FLORIDA.
450
451 The cooperative parcel is owned by ...(name of debtor)...,
452 Debtor. There remains unpaid to the association the sum of
453 $..... This lien secures these amounts, as well as any other
454 amounts that a lien may secure pursuant to Chapter 719, Florida
455 Statutes.
456
457 ...(signature of witness)... ...(signature of authorized
458 agent)...
459 Print name: .... Print name: ....
460
461 ...(signature of witness)...
462 Print name: ....
463
464 Sworn to (or affirmed) and subscribed before me this .... day of
465 ...., ...(year)..., by ...(name of person making statement)....
466 ...(Signature of Notary Public)...
467 ...(Print, type, or stamp commissioned name of Notary Public)...
468 Personally Known.... OR Produced.... as identification.
469
470 The claim must be executed and acknowledged by an officer or
471 authorized agent of the association. The lien is not effective 1
472 year after the claim of lien was recorded unless, within that
473 time, an action to enforce the lien is commenced. The 1-year
474 period is automatically extended for any length of time during
475 which the association is prevented from filing a foreclosure
476 action by an automatic stay resulting from a bankruptcy petition
477 filed by the parcel owner or any other person claiming an
478 interest in the parcel. The claim of lien secures all unpaid
479 rents and assessments that are due and that may accrue after the
480 claim of lien is recorded and through the entry of a final
481 judgment, as well as interest and all reasonable costs and
482 attorney fees incurred by the association incident to the
483 collection process. Upon payment in full, the person making the
484 payment is entitled to a satisfaction of the lien.
485 (c) By recording a notice in substantially the following
486 form, a unit owner or the unit owner’s agent or attorney may
487 require the association to enforce a recorded claim of lien
488 against his or her cooperative parcel:
489
490 NOTICE OF CONTEST OF LIEN
491
492 TO: ...(Name and address of association)... You are
493 notified that the undersigned contests the claim of lien filed
494 by you on ...., ...(year)..., and recorded in Official Records
495 Book .... at Page ...., of the public records of .... County,
496 Florida, and that the time within which you may file suit to
497 enforce your lien is limited to 90 days from the date of service
498 of this notice. Executed this .... day of ...., ...(year)....
499 Signed: ...(Owner or Attorney)...
500
501 After notice of contest of lien has been recorded, the clerk of
502 the circuit court shall mail a copy of the recorded notice to
503 the association by certified mail, return receipt requested, at
504 the address shown in the claim of lien or most recent amendment
505 to it and shall certify to the service on the face of the
506 notice. Service is complete upon mailing. After service, the
507 association has 90 days in which to file an action to enforce
508 the lien, and, if the action is not filed within the 90-day
509 period, the lien is void. However, the 90-day period shall be
510 extended for any length of time during which the association is
511 prevented from filing its action because of an automatic stay
512 resulting from the filing of a bankruptcy petition by the unit
513 owner or by any other person claiming an interest in the parcel.
514 (d) A release of lien must be in substantially the
515 following form:
516
517 RELEASE OF LIEN
518
519 The undersigned lienor, in consideration of the final payment in
520 the amount of $...., hereby waives and releases its lien and
521 right to claim a lien for unpaid assessments through ....,
522 ...(year)..., recorded in Official Records Book .... at Page
523 ...., of the public records of .... County, Florida, for the
524 following described real property:
525
526 THAT COOPERATIVE PARCEL WHICH INCLUDES UNIT NO. ....
527 OF ...(NAME OF COOPERATIVE)..., A COOPERATIVE AS SET
528 FORTH IN THE COOPERATIVE DOCUMENTS AND THE EXHIBITS
529 ANNEXED THERETO AND FORMING A PART THEREOF, RECORDED
530 IN OFFICIAL RECORDS BOOK ...., PAGE ...., OF THE
531 PUBLIC RECORDS OF .... COUNTY, FLORIDA.
532
533 ...(signature of witness)... ...(signature of authorized
534 agent)...
535 Print name: .... Print name: ....
536
537 ...(signature of witness)...
538 Print name: ....
539
540 Sworn to (or affirmed) and subscribed before me this .... day of
541 ...., ...(year)..., by ...(name of person making statement)....
542 ...(Signature of Notary Public)...
543 ...(Print, type, or stamp commissioned name of Notary Public)...
544 Personally Known.... OR Produced.... as identification.
545 Section 5. Subsections (1), (3), (4), and (5) of section
546 720.3085, Florida Statutes, are amended to read:
547 720.3085 Payment for assessments; lien claims.—
548 (1) When authorized by the governing documents, the
549 association has a lien on each parcel to secure the payment of
550 assessments and other amounts provided for by this section.
551 Except as otherwise set forth in this section, the lien is
552 effective from and shall relate back to the date on which the
553 original declaration of the community was recorded. However, as
554 to first mortgages of record, the lien is effective from and
555 after recording of a claim of lien in the public records of the
556 county in which the parcel is located. This subsection does not
557 bestow upon any lien, mortgage, or certified judgment of record
558 on July 1, 2008, including the lien for unpaid assessments
559 created in this section, a priority that, by law, the lien,
560 mortgage, or judgment did not have before July 1, 2008.
561 (a) To be valid, A claim of lien must be in substantially
562 the following form:
563
564 CLAIM OF LIEN
565
566 Before me, the undersigned notary public, personally appeared
567 ...(name)... who was duly sworn and says that he/she is the
568 authorized agent of the lienor, ...(name of association)...,
569 whose address is ...(address)..., and that in accordance with
570 Chapter 720, Florida Statutes, and the governing documents of
571 ...(name of association)..., a homeowners’ association, the
572 association makes this claim of lien for ...(basis for claim of
573 lien and date(s) of delinquency)..., for the following described
574 real property upon which the association asserts this lien:
575
576 ...(PARCEL NO. .... OR LOT AND BLOCK)..._ OF ....
577 SUBDIVISION AS SHOWN IN THE PLAT THEREOF, RECORDED AT
578 PLAT BOOK ...., PAGE ...., OF THE OFFICIAL RECORDS OF
579 .... COUNTY, FLORIDA.
580
581 ...(or insert appropriate metes and bounds description
582 here)...
583
584 The property is owned by ...(name of debtor)..., Debtor. There
585 remains unpaid to the association the sum of $..... This lien
586 secures these amounts, as well as any other amounts that a lien
587 may secure pursuant to Chapter 720, Florida Statutes.
588
589 ...(signature of witness)... ...(signature of authorized
590 agent)...
591 Print name: .... Print name: ....
592
593 ...(signature of witness)...
594 Print name: ....
595
596 Sworn to (or affirmed) and subscribed before me this .... day of
597 ...., ...(year)..., by ...(name of person making statement)....
598 ...(Signature of Notary Public)...
599 ...(Print, type, or stamp commissioned name of Notary Public)...
600 Personally Known.... OR Produced.... as identification.
601
602 must state the description of the parcel, the name of the record
603 owner, the name and address of the association, the assessment
604 amount due, and the due date. The claim of lien secures all
605 unpaid assessments that are due and that may accrue subsequent
606 to the recording of the claim of lien and before entry of a
607 certificate of title, as well as interest, late charges, and
608 reasonable collection costs and attorney attorney’s fees
609 incurred by the association incident to the collection process.
610 The person making payment is entitled to a satisfaction of the
611 lien upon payment in full.
612 (b) By recording a notice in substantially the following
613 form, a parcel owner or the parcel owner’s agent or attorney may
614 require the association to enforce a recorded claim of lien
615 against his or her parcel:
616
617 NOTICE OF CONTEST OF LIEN
618
619 TO: ...(Name and address of association)...
620 You are notified that the undersigned contests the claim of lien
621 filed by you on ...., ...(year)..., and recorded in Official
622 Records Book .... at page ...., of the public records of ....
623 County, Florida, and that the time within which you may file
624 suit to enforce your lien is limited to 90 days following the
625 date of service of this notice. Executed this .... day of ....,
626 ...(year)....
627 Signed: ...(Owner or Attorney)...
628
629 After the notice of a contest of lien has been recorded, the
630 clerk of the circuit court shall mail a copy of the recorded
631 notice to the association by certified mail, return receipt
632 requested, at the address shown in the claim of lien or the most
633 recent amendment to it and shall certify to the service on the
634 face of the notice. Service is complete upon mailing. After
635 service, the association has 90 days in which to file an action
636 to enforce the lien and, if the action is not filed within the
637 90-day period, the lien is void. However, the 90-day period
638 shall be extended for any length of time that the association is
639 prevented from filing its action because of an automatic stay
640 resulting from the filing of a bankruptcy petition by the parcel
641 owner or by any other person claiming an interest in the parcel.
642 (c) The association may bring an action in its name to
643 foreclose a lien for assessments in the same manner in which a
644 mortgage of real property is foreclosed and may also bring an
645 action to recover a money judgment for the unpaid assessments
646 without waiving any claim of lien. The association is entitled
647 to recover its reasonable attorney’s fees incurred in an action
648 to foreclose a lien or an action to recover a money judgment for
649 unpaid assessments.
650 (d) A release of lien must be in substantially the
651 following form:
652
653 RELEASE OF LIEN
654
655 The undersigned lienor, in consideration of the final payment in
656 the amount of $...., hereby waives and releases its lien and
657 right to claim a lien for unpaid assessments through ....,
658 ...(year)..., recorded in Official Records Book .... at Page
659 ...., of the public records of .... County, Florida, for the
660 following described real property:
661
662 ...(PARCEL NO. .... OR LOT AND BLOCK)... OF ....
663 SUBDIVISION AS SHOWN IN THE PLAT THEREOF, RECORDED AT
664 PLAT BOOK ...., PAGE ...., OF THE OFFICIAL RECORDS OF
665 .... COUNTY, FLORIDA.
666
667 ...(or insert appropriate metes and bounds description
668 here)...
669
670 ...(signature of witness)... ...(signature of authorized
671 agent)...
672
673 ...(signature of witness)...
674
675 Sworn to (or affirmed) and subscribed before me this .... day of
676 ...., ...(year)..., by ...(name of person making statement)....
677 ...(Signature of Notary Public)...
678 ...(Print, type, or stamp commissioned name of Notary Public)...
679 Personally Known.... OR Produced.... as identification.
680
681 (e)(d) If the parcel owner remains in possession of the
682 parcel after a foreclosure judgment has been entered, the court
683 may require the parcel owner to pay a reasonable rent for the
684 parcel. If the parcel is rented or leased during the pendency of
685 the foreclosure action, the association is entitled to the
686 appointment of a receiver to collect the rent. The expenses of
687 the receiver must be paid by the party who does not prevail in
688 the foreclosure action.
689 (f)(e) The association may purchase the parcel at the
690 foreclosure sale and hold, lease, mortgage, or convey the
691 parcel.
692 (3) Assessments and installments on assessments that are
693 not paid when due bear interest from the due date until paid at
694 the rate provided in the declaration of covenants or the bylaws
695 of the association, which rate may not exceed the rate allowed
696 by law. If no rate is provided in the declaration or bylaws,
697 interest accrues at the rate of 18 percent per year.
698 (a) If the declaration or bylaws so provide, the
699 association may also charge an administrative late fee not to
700 exceed the greater of $25 or 5 percent of the amount of each
701 installment that is paid past the due date. The association may
702 also recover from the parcel owner any reasonable charges
703 imposed upon the association under a contract with its
704 management or bookkeeping company, or collection agent, incurred
705 in connection with collecting a delinquent assessment.
706 (b) Any payment received by an association and accepted
707 shall be applied first to any interest accrued, then to any
708 administrative late fee, then to any costs and reasonable
709 attorney attorney’s fees incurred in collection, then to any
710 reasonable costs for collection services contracted for by the
711 association, and then to the delinquent assessment. This
712 paragraph applies notwithstanding any restrictive endorsement,
713 designation, or instruction placed on or accompanying a payment.
714 A late fee is not subject to the provisions of chapter 687 and
715 is not a fine.
716 (4) A homeowners’ association may not file a record of lien
717 against a parcel for unpaid assessments unless a written notice
718 or demand for past due assessments as well as any other amounts
719 owed to the association pursuant to its governing documents has
720 been made by the association. The written notice or demand must:
721 (a) Provide the owner with 45 days following the date the
722 notice is deposited in the mail to make payment for all amounts
723 due, including, but not limited to, any attorney’s fees and
724 actual costs associated with the preparation and delivery of the
725 written demand. The notice must be in substantially the
726 following form:
727
728 NOTICE OF INTENT TO RECORD A CLAIM OF LIEN
729
730 Re: Parcel or (lot/block) .... of ...(name of association)...
731
732 The following amounts are currently due on your account to ....
733 Association, and must be paid within forty-five (45) days after
734 your receipt of this letter. This letter shall serve as the
735 Association’s notice of intent to record a claim of lien against
736 your property after forty-five (45) days from your receipt of
737 this letter, unless you pay in full the amounts set forth below:
738
739 Maintenance due ...(dates)... ________ $....
740 Late fee, if applicable $....
741 Interest through ________* $....
742 Certified mail charges $....
743 Other costs $....
744
745 TOTAL OUTSTANDING $....
746
747 *Interest accrues at the rate of $.... per day.
748 (b) Be sent by registered or certified mail, return receipt
749 requested, and by first-class United States mail to the parcel
750 owner at his or her last address as reflected in the records of
751 the association, if the address is within the United States, and
752 to the parcel owner subject to the demand at the address of the
753 parcel if the owner’s address as reflected in the records of the
754 association is not the parcel address. If the address reflected
755 in the records is outside the United States, then sending the
756 notice to that address and to the parcel address by first-class
757 United States mail is sufficient.
758 (5) The association may bring an action in its name to
759 foreclose a lien for unpaid assessments secured by a lien in the
760 same manner that a mortgage of real property is foreclosed and
761 may also bring an action to recover a money judgment for the
762 unpaid assessments without waiving any claim of lien. The action
763 to foreclose the lien may not be brought until 45 days after the
764 parcel owner has been provided notice of the association’s
765 intent to foreclose and collect the unpaid amount. The notice
766 must be given in the manner provided in paragraph (4)(b), and
767 the notice may not be provided until the passage of the 45 days
768 required in paragraph (4)(a). The notice must be in
769 substantially the following form:
770
771 DELINQUENT ASSESSMENT
772
773 This letter is to inform you a claim of lien has been filed
774 against your property because you have not paid the ....
775 assessment to .... Association. The Association intends to
776 foreclose the lien and collect the unpaid amount within 45 days
777 of this letter being provided to you.
778
779 You owe the interest accruing from (month/year) to the present.
780 As of the date of this letter, the total amount due with
781 interest is $..... All costs of any action and interest from
782 this day forward will also be charged to your account.
783
784 Any questions concerning this matter should be directed to
785 ...(insert name, addresses and phone numbers of Association
786 representative)....
787 (a) The association may recover any interest, late charges,
788 costs, and reasonable attorney attorney’s fees incurred in a
789 lien foreclosure action or in an action to recover a money
790 judgment for the unpaid assessments.
791 (b) The time limitations in this subsection do not apply if
792 the parcel is subject to a foreclosure action or forced sale of
793 another party, or if an owner of the parcel is a debtor in a
794 bankruptcy proceeding.
795 Section 6. This act shall take effect July 1, 2014.