January 2013

Gotcha! Associations Corner Mortgagees For Past Due Assessments

The Practical Real Estate Lawyer
Peter P. Hargitai
Today, and for the last several years in the wake of the foreclosure crisis, Florida condominium owners’ associations have struggled to collect monthly assessments from delinquent unit owners. Assuming that a typical owner’s unit was financed, once in default for non-payment of the note and mortgage, the unit owner usually also defaults in his or her obligations to pay the association’s regular monthly assessments. The usual remedy for the association would be to record a lien on the unit and, if that did not convince the unit owner to pay, initiate an action to foreclose the lien. In today’s condominium environment, that strategy is simply a waste of time and money — inasmuch as the mortgagee will invariably have a superior lien on the property which often has no equity, or is “under water,” leaving the association with nothing left to satisfy the lien, and an invoice for attorneys’ fees. The safe harbor provisions of section 718.116(1), Florida Statutes discussed herein, have no application when the unpaid assessments sought to be recovered by the association are secured by a lien recorded prior to the mortgage.

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