Most Associations have the legal right to place a lien on a home or unit to secure the payment of past due assessments. To determine if your Association has this right, you will look to your Association’s Declaration of Covenants, Conditions and Restrictions. In the Declaration, there will be a section that details what happens if an owner is delinquent in the payment of assessment to the Association and it typically grants the Association the right to secure that debt by recording a lien against the owner’s property. You also have the right to foreclosure on that lien similar to the way a bank forecloses on a mortgage. But what does this really mean? It means that an Association does not have to sit and wait for the sale of the property for the Association to get paid, as the Association can force a sale on the property. Remember, in a foreclosure action, the primary goal of the Association is not to take title to a property but to force a sale on that property so that the Association can retrieve the money owed to the Association.
How does the Foreclosure Process Work?
- First, the Association must send the required statutory letters to the delinquent homeowner and have a lien recorded against the property.
- Then, a lawsuit is filed and served which results in a court judgment. If the judgment is not paid, the court orders a sale of the property at a judicial sale.
- Anyone may bid at a judicial sale. The money paid at the sale is applied by the Court to pay the outstanding judgment. The Association may also bid at the sale. For bidding purposes, the Association is allowed to use an amount of the court judgment like cash at the sale to bid on the property if it chooses.
- In a foreclosure action, all inferior lien interests are extinguished and the winning bidder at the judicial sale takes title free of all inferior interests.
- A Condo or HOA lien is a second lien position to a first mortgage. If the property is being foreclosed, the bidder at that sale takes the home or unit free and clear of all inferior liens, however, the property is still subject to the superior first mortgage. Therefore, a bidder will take into account the remaining mortgage on the property and bid accordingly.
- An Association is not required to bid in its foreclosure action and therefore is not required to take ownership of the property.
What if there is a Tenant in the property?
- If a homeowner is delinquent in the payment of his/her obligations to the Association, Florida Statute allows an Association to recover these funds from any tenants occupying the property.
- The statute allows an Association to collect the entire rent check from a tenant of a delinquent homeowner without having to file the foreclosure lawsuit by sending a demand letter to the tenant informing him/her of the obligation (including amounts and when they are due) and directing the tenant to send the necessary amounts to the Association.
- If the tenant (with a valid lease) fails to send the Association the rent checks, the Statute allows the Association to evict the tenant from the property.
- The eviction process includes: a 3-day eviction notice posted on the property, a lawsuit filed against the tenant, and the tenant served with an eviction summons.
- The tenant has five days to file an answer and deposit the amount in question with the court. If no answer is filed, the Association will file a motion and order a default judgment for eviction. A judgment for eviction will be entered and a Writ of Ejectment will be issued.
- An Association should proceed with caution when considering evicting a tenant. Consider all factors involved. If the tenant is taking care of the property and is a good neighbor, it is most likely that the delinquent homeowner convinced the tenant that the delinquency had been taken care of. If the Association evicts the tenant, this could result in a vacant, non-maintained property. However, if the Association continues with a Court ordered receivership through the foreclosure against the homeowner, it will most likely collect rent and keep the property occupied.
- In a receivership, the tenant must be served with the foreclosure complaint. Next, a motion is filed with the Court and a Judge signs a receivership order. This order is then served on the tenant instructing the tenant to make his/her rental payments to the receiver who will disburse the funds to the Association. If the tenant fails to comply with the receivership order the Judge will issue a warrant for the tenant’s arrest. Typically, receiverships are reserved for after a complaint has been filed in a foreclosure action against the homeowner.
Other Frequent Questions Regarding Association Collections
- If the Association takes title to a property in a foreclosure, does the Association have to pay the mortgage or property taxes?
There are two common misconceptions that often keep Associations from proceeding forward on their right to foreclose on a property.
- An Association is NOT obligated to pay the mortgage on the property. If the mortgage is not paid or other arrangements made with the lender, eventually the bank will take possession away from the Association. However, the lender cannot sue the Association for mortgage payments.
- An Association is NOT required to pay the property taxes. If the taxes are not paid, after two years possession of the property may be taken from the Association through a tax deed sale. However, the County cannot sue the Association to collect or otherwise make the Association pay these taxes.
- How is a Personal Judgment different from a lien foreclosure?
Unlike in a lien foreclosure action, in a personal judgment, the parties (Association and homeowner) are required to attend a mandatory mediation. If the homeowner attends, a settlement can sometimes be reached. If a settlement cannot be reached, or if the homeowner does not participate in the mediation, a hearing will be scheduled. A personal money judgment will be entered if the Association prevails at the hearing.
- What is the process for a Personal Judgement?
The homeowner will be sent a 30-day Demand Letter requesting payment in full. This letter is to satisfy the requirements of the Federal Fair Debt Collection Practices Act. If at the conclusion of the demand letter period a response has not been received, or full payment has not been received, a one count complaint will be filed in county court that will be followed by the mediation process.
- Why is it important to have a Personal Judgement recorded?
The main purpose of recording the judgment is to encumber the assets of the homeowner to prevent the homeowner from selling or refinancing any of the assets without first satisfying the judgment. At a minimum, this judgment would be recorded in the public records and become a lien on any non-homestead property located in the County that it is recorded.
- What rights does the Association have in trying to collect on a Personal Judgement?
The Association has the right to proceed against the property of the homeowner through Writ of Execution, garnishment, or other judicial processes.
- What steps does the Association need to take to recover on a Personal Judgement?
Some of the steps that need to be taken include: a Writ of Execution delivered to the sheriff or marshal, the sheriff or marshal levying upon assets of the homeowner, and the sheriff or marshal selling as much personal property and real property as has been levied upon in order to satisfy the judgment.
- What are the different types of bankruptcy that a homeowner can file?
There are three types of bankruptcy: Chapters 11, 7, and 13. The two that usually affect Associations are Chapter 7 and 13. In Chapter 7, the debtor has little or no income; and their personal obligation towards most of their debt is discharged. Chapter 13, on the other hand, is a debt repayment plan. Please note that most often bankruptcy will only dismiss a homeowner’s personal obligation and does not affect the Association’s right to foreclose on its lien. But in recent years we have seen the Association lien being stripped in Chapter 7 cases.
- What are pre-petition and post-petition assessments?
Everything that the homeowner owed up to the date the bankruptcy was filed is pre-petition and is included in the bankruptcy proceedings. Everything from that date forward is post-petition.
- If you do not receive official notice of the bankruptcy from the court do all the rules still apply?
Once you have actual knowledge of the filing, all the rules apply. If the Association is not named, once the bankruptcy is completed the Association can pursue both a lien foreclosure and personal judgment against the homeowner for all delinquent assessments. However, the association should not pursue any collection action against the homeowner/tenant in property while the bankruptcy is pending.
- How do you collect post-petition assessments?
A homeowner is supposed to automatically make their post-petition assessments. However, very often this does not happen. In this case the Association has two options: wait until the stay is lifted (bankruptcy is completed) and then go after the homeowner, OR apply for relief from stay from the court and then go after the homeowner, while the bankruptcy is in progress.
These are general guidelines and do not apply to all situations equally. Each Association and each situation may add its unique challenges that the Board must take into account when making decisions. However, this basic information along with any Association’s Governing documents as well as the assistance of an experienced Association Law Attorney should be sufficient for an Association to adopt an appropriate collection policy suitable for their community that will be fair and equitable to all its residents.
For any and all questions relating to the collections process; or to the legal rights, obligations and operations of a Homeowners or Condominium Owners Association, please contact our office at 407-512-4394 to schedule a consultation with an Association Law Attorney.