CONDOMINIUM ASSOCIATIONS 

(FS 718.116)

Assessments; liability; lien and priority; interest; collection; foreclosure 

 718.116           Assessments; liability; lien and priority; interest; collection; foreclosure

(1) (b)  The liability of a first mortgagee or its successor or assignees

who acquire title to a unit by foreclosure or by deed in lieu of foreclosure

for the unpaid assessments that became due prior to the mortgagee's

acquisition of title is limited to the lesser of:

1.  The unit's unpaid common expenses and regular periodic assessments

which accrued or came due during the 6 months immediately preceding

the acquisition of title and for which payment in full has not been received

by the association; or

2.  One percent of the original mortgage debt. The provisions of this

paragraph apply only if the first mortgagee joined the association as a

defendant in the foreclosure action. Joinder of the association is not

required if, on the date the complaint is filed, the association was

dissolved or did not maintain an office or agent for service of process

at a location which was known to or reasonably discoverable by the

mortgagee.

(1) Liens and Foreclosures for unpaid dues and special assessments

1. Definition --

a.) Dues -- Regular charges for maintenance or services as allowed

by governing documents.

b.) Assessments and/or Special Assessments -- Assessments or

Special assessments are charges levied equally against all unit-owners,

in proportion to property values or a combination of the foregoing

according to the governing documents. Neither assessments or

special assessments shall include fines, attorneys fees or any other

cost levied against individual homeowners only.

 (3) (2) Assessments and installments on them which are not paid

when due bear interest at the rate provided in the declaration, from the

due date until paid. This rate may not exceed the rate allowed by law,

and, if no rate is provided in the declaration, interest shall accrue at

the rate of 18 percent per year. Also, if the declaration or bylaws so

provide, the association may charge an administrative late fee in

addition to such interest, in an amount not to exceed the greater of

$25 or 5 percent of each installment of the assessment for each

delinquent installment that the payment is late. Any payment received

by an association shall be applied first to any interest accrued by the

association, then to any administrative late fee, then to the delinquent

assessment, any costs and reasonable attorney's fees incurred in

collection, and then to any costs and reasonable attorney's fees

incurred in collection., the delinquent assessment. The foregoing

shall be applicable notwithstanding any restrictive endorsement,

designation, or instruction placed on or accompanying a payment.

A late fee shall not be subject to the provisions in chapter 687 or s.

718.303(3).

(5) (3) (a)  The association has a lien on each condominium parcel

to secure the payment of assessments. No lien may be recorded on a

unit before 30 days after service of a notice of intent to record a lien

has been served on the owner of the property by certified mail or

by personal service in the manner authorized by chapter 48 and the

Florida Rules of Civil Procedure. The intent notice must contain a

list of itemized charges claimed to be unpaid. The notice must

contain a warning that the recording of a lien may add high attorney's

fees to the debt owed and may lead to the foreclosure of the

unit. Except as otherwise provided in subsection (1) and as set

forth below, the lien is effective from and shall relate back to the

recording of the original declaration of condominium, or, in the

case of lien on a parcel located in a phase condominium, the last

to occur of the recording of the original declaration or amendment

thereto creating the parcel. However, as to first mortgages of

record, the lien is effective from and after recording of a claim of

lien in the public records of the county in which the condominium

parcel is located. Nothing in this subsection shall be construed to

bestow upon any lien, mortgage, or certified judgment of record on

April 1, 1992, including the lien for unpaid assessments created

herein, a priority which, by law, the lien, mortgage, or judgment

did not have before that date.

(b)  The association has the power to purchase the condominium

parcel at the foreclosure sale and to hold, lease, mortgage, or

convey it.

(4) Non-Judicial Foreclosures, and Precipitate Foreclosures,

Prohibited.

No association may foreclose against a unit-owner on any lien

unless, in addition to compliance with all other applicable laws,

the association obtains a court order that specifies the assessments

due, confirms the association followed proper procedure, and allows

at least three months before the sale date for the homeowner to pay

the court-specified debt.

(5) Predicates for Judicial Foreclosure. 

No association may seek an order to foreclose against a unit-owner

on any lien unless, in addition to compliance with all other laws

governing foreclosure of a mortgage on residential real estate,

(a) the lien secures only a debt for an assessment authorized by a

declaration recorded before the owner bought the unit,

(b) the directors by a two-thirds vote approve the foreclosure action,

which approval cannot be delegated or assigned to the association's

management company or attorney, and

(c) the assessment past due on the date of the vote exceeds

$2,500, or the assessment has been past due at least 25 months.

Notwithstanding the foregoing, any lawfully recorded lien

(including liens that do not themselves provide a suitable basis

for foreclosure) may be enforced on conveyance of any interest

in a home, including conveyance by otherwise proper foreclosure

sale.

i.) Collection fees, fines, late fees, and/or attorney's fees or costs

cannot be included as part of the minimum amount of $2,500.00

required for the commencement of a foreclosure action as set

forth in this section.

ii.) As a condition precedent to bringing an action to foreclose

a lien for assessments, a notice must be sent to the unit owner

by either certified mail or by personal service by a person

authorized to serve an initial petition in state court that a

suit will be filed within 5 days of homeowner's receipt of

the notice unless the entire amount is paid in full or other

payment arrangements are made with the association. The

notice shall state it is the final notice prior to institution of

foreclosure proceedings and must comply with the Fair Debt

Collection Practices Act (15 USC § 1692 et. seq.). The actual

cost of this notice may be added to the lien for assessments,

provided the association is the prevailing party in a foreclosure

action filed pursuant to this chapter.

(6) Right to Cure. Each association shall, in governing documents,

establish rights to make payments that ensure the following:

a.) A unit-owner payment shall be credited first toward any past due

assessment or other amount due to avoid foreclosure.

b.) For unit-owners who suffer job loss, disability, divorce, death

in the family, or family medical expenses, the association shall without

penalty allow a homeowner 30 days after an assessment to propose

an installment plan. Upon receiving the unit-owner’s installment

proposal, the directors shall designate a committee to meet with

the unit-owner privately, and the association shall provide a

written response to the unit-owner. The request shall be approved

if it meets any pre-existing requirements set by the association or

if it does not require a postponement of more than 1 year for the

unit-owner to fully pay the assessment. If the association does not

approve the request in full, the response shall allow the unit-owner

at least 15 days after denying the request to pay without incurring

attorney fees. Nothing prohibits the directors from approving an

installment plan more lenient than provided by existing rules, in

which case the directors shall amend the existing rules so that

all unit-owners shall receive fair notice and equal treatment.

c.) Within five days after any vote by directors to seek foreclosure,

the association shall give the affected unit-owner notice of the vote

by either certified mail or personal service by a person authorized

to serve an initial petition in state court.

d.) If a unit-owner pays all overdue assessments after directors

properly vote to seek foreclosure, a court order nonetheless may

permit foreclosure if (a) the unit-owner has not paid all overdue late

charges plus all attorney fees and costs (including costs of service)

actually and reasonably incurred after the directors’ vote; and (b) the

declaration authorizes foreclosure for such nonpayment.

e.) Upon a unit-owner’s request, within three days of any request,

an association shall provide the amount due to avoid foreclosure,

including past due assessments and any other amounts allowed

by (4)(d) or approved by court order under subsection (2). 

(7) Minimum Bid and Notice of Redemption Rights. 

If an association forecloses against a unit-owner, and sets the

unit for sale, the following provisions apply:

a.) A price below 75% of the appraised fair market value

less senior liens subject to which the successful bidder takes

title, makes the sale void.

b.) Within 30 days after the sale, the association shall provide

the unit-owner notice including the date and time of sale, the

buyer’s name and purchase price, and the Notice of Right of

Redemption to be prepared by the office of the Ombudsman.

Within ten days after sending this notice, the association shall

record, in the real property records of the county where the

home is located, an affidavit stating the date on which the

association sent the notice and containing a legal description

of the lot.

(8) Right of Redemption after Foreclosure.

Except to the extent that governing documents provide greater

rights for homeowners, after a foreclosure sale by an association

the unit-owner has the following right of redemption:

a. a right of redemption not less than if a secured lender foreclosed,

and b. at least 180 days, after recording of notice as required in (7)(b).

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

a lien for assessments in the manner a mortgage of real property is

foreclosed and may also bring an action to recover a money

judgment for the unpaid assessments without waiving any claim

of lien. The association is entitled to recover its reasonable

attorney's fees incurred in either a lien foreclosure action or

an action to recover a money judgment for unpaid assessments.
(b)  No foreclosure judgment may be entered until at least 30 days

after the association gives written notice to the unit owner of its

intention to foreclose its lien to collect the unpaid assessments.

If this notice is not given at least 30 days before the foreclosure

action is filed, and if the unpaid assessments, including those

coming due after the claim of lien is recorded, are paid before

the entry of a final judgment of foreclosure, the association shall

not recover attorney's fees or costs. The notice must be given by

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

mail, return receipt requested, addressed to the unit owner at his

or her last known address; and, upon such mailing, the notice

shall be deemed to have been given, and the court shall proceed

with the foreclosure action and may award attorney's fees and

costs as permitted by law. The notice requirements of this

subsection are satisfied if the unit owner records a notice of

contest of lien as provided in subsection (5). The notice

requirements of this subsection do not apply if an action to

foreclose a mortgage on the condominium unit is pending

before any court; if the rights of the association would be

affected by such foreclosure; and if actual, constructive,

or substitute service of process has been made on the

unit owner. 
(c)  If the unit owner remains in possession of the unit after

a foreclosure judgment has been entered, the court, in its

discretion, may require the unit owner to pay a reasonable

rental for the unit. If the unit is rented or leased during the

pendency of the foreclosure action, the association is

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

The expenses of the receiver shall be paid by the party

which does not prevail in the foreclosure action.