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IT’S GETTING TOUGHER TO COLLECT THOSE UNPAID ASSESSMENTS
By
Eric Glazer, Esq.
Published March 7, 2022
When I started practicing law in 1992, condominiums and HOAs had
it a lot easier when it came to collecting their unpaid dues.
If someone was thirty days late, you were able to file a lien on
their home or unit right away. And if they didn’t pay within
thirty days, foreclose on their unit.
I don’t remember when, but at some point The Florida Legislature
amended the law to require the delinquent owner to get a thirty
day letter, advising that they were late, showing how much was
owed and which advised the delinquent owner that that if this
amount is not paid within 30 days, the association will then
file a lien.
Well, not even that was alright with The Florida Legislature.
Last year, a new law was passed for both condos and HOAs which
added a third step. Now, the very first letter that goes to
the unit owner, advises them that they are delinquent and gives
them thirty days to pay the amount due without any attorney’s
fees whatsoever. Again, this letter must go out first.
Then, after thirty days, you can send a second letter advising
that if the amounts due, plus interest, attorney’s fees and late
charges, are not paid within 45 days, a lien will be filed
against the home or unit.
After another 45 days, if still unpaid, you can file your lien
and send a third letter to the owner advising that if not paid
in full, including interest, costs and attorney’s fees within 45
days, a lawsuit to foreclose on the unit or home will be filed.
If this notice is not given at
least 45 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 fees or costs.
So to recap on how to proceed against a delinquent owner:
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Send a 30 day letter requiring that they pay in full, with
no attorney’s fees.
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Send a 45 day letter threatening to file a lien if not paid,
including attorney’s fees, interest, and late fees;
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Send another 45 day letter advising that you have filed the
lien and if the account is not brought current within 45
days, a foreclosure action is filed.
Under the current law, a unit owner now gets 120 days to pay,
assuming that you sent each letter immediately when the clock
allowed you to. The reality is, by the time you are able to
finally file your foreclosure action, the unit will already be
at least 5 or 6 months delinquent.
What to do about it
There is no perfect answer. But I do know that if If I’m the
owner, I better come up with the money within the first 30 days,
because I save a lot of money in attorney’s fees. Delinquent
unit owners should do all they can to comply within that time,
because it starts getting real expensive really quick to settle.
If I’m the association, I may want to make sure that I am on top
of the collection process and immediately start the process when
the owner is delinquent. You don’t need the attorney to send
the first letter that you are not allowed to bill for anyway.
Just make sure you give the owner the opportunity to pay in full
without attorney’s fees within 30 days. Everything after
the first letter should be done by counsel.
What to Expect
I already am starting to see delinquencies rise and new
foreclosures being filed. When the cost of food, gasoline and
just about everything else you buy starts skyrocketing, like
now, there will be more delinquencies in our condominiums. The
new legislation that is expected to make it more difficult to
waive the funding of reserves and require more inspections of
buildings is about to pass this week as well. Everyone’s
assessments are about to go up. If you live in a community with
no reserves in the bank, your assessments are about to go way
up.
You also need to make sure your governing docs require
purchasers at a foreclosure sale to pay the delinquent
assessments owed to your association. Many of you have
governing documents that lets the buyer purchase without owing
anything to the community. In addition, you want to make sure
your documents protect you against second mortgages by making
sure you have language in your documents that do not say all
mortgagees who take title to the unit are excused from paying
any delinquent assessments. We want the second mortgage to be
inferior to the association, so if they try and foreclose, the
association’s lien remains in place. If they get the unit
back, they owe everything.
It’s just not as simple as it once was doing collection work. I
really advise to speak with your association’s counsel about
getting the proper expedient plan in place because ladies and
gentlemen; The foreclosures are coming, the foreclosures are
coming.
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About
HOA & Condo Blog
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Eric Glazer graduated
from the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for three decades and is the owner of
Glazer and Sachs, P.A. a five attorney law firm with
offices in Fort Lauderdale and Orlando.
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Eric is Board Certified by The Florida Bar in
Condominium and Planned Development Law.
Since 2009, Eric has been the host of Condo Craze
and HOAs, a weekly one hour radio show that airs at 11:00 a.m.
each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
Eric is the first attorney in the State of
Florida that designed a course that certifies condominium and
HOA residents as eligible to serve on a Board of Directors and
has now certified more than 20,000 Floridians all across the
state. He is certified as a Circuit Court Mediator by The
Florida Supreme Court and has mediated dozens of disputes
between associations and unit owners. Eric also devotes
significant time to advancing legislation in the best interest
of Florida community association members.
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