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socrateaser
socrateaser, Lawyer
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Experience:  Retired (mostly)
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This question regards XXXXX XXXXX Law We live in

Resolved Question:

This question regards XXXXX XXXXX Law

We live in a small condo of 10 units in Florida. One owner is delinquent for 1 1/2
years and owes over $4000. Our BOD has not sent even 1 delinquency notice.

We have a lien for unpaid assessments through our Condo Docs and Fl Statutes. This lien is collected via an Estoppel letter at the time of sale. It's my opinion that in FL, if the person has a 1st mortgage then the association is entitled to 6 months regular assessments or 1 percent of the original mortgage.

My question is should our association file a claim of lien against the owner to protect against bankruptcy or against a bank foreclosing first and receiving the lesser of the above?

If we file a claim of lien do we have to enforce it if he doesn't contest it?

We are actually in the process of replacing the board in order to properly deal with this.
We would like to work with the owner but want to make sure that we are protected in case of bankruptcy filing or foreclosure. Our plan would be to file the claim of lien and try and work out a payment plan, only enforcing the lien if the situation gets much worse.

Should our Association file the claim of lien to protect from situations outlined above.
Thanks for your help.
Submitted: 2 years ago.
Category: Legal
Expert:  socrateaser replied 2 years ago.
Sec. 718.116 F.S. provides an automatic lien against the owner's obligation for assessments beginning with the original recording of the condominium declaration of covenants in the public records. So, you do not have to file a lien to protect the association's interests, There is an exception for first mortgages, in that a lien must be recorded in order to maintain priority. Thus, with respect to any existing or future first mortgage and not counting the 12 month/1% automatic mortgagee/lender liability for assessments, the association must record a lien to obtain priority.

Since it is almost certain that any new purchaser will do so based upon a new first mortgage, recording a lien is a general necessity to protect the association's right to recover assessments in preference to the first mortgage holder. However, in some circumstances, maintaining a cloud on title via the lien may do nothing more than to keep the property unmarketable, which is a net loser for the association. Ultimately, it may be necessary to release or limit recovery in order to get a new purchaser into the property, because recovery from the prior owner may be unrealistic or unreasonably costly -- and, without releasing the lien, no new purchaser will purchase.

Concerning bankruptcy, the covenant lien protects the association to the maximum extent possible. The current owner cannot discharge the association fees. In re Rivera, 256 B.R. 828 (Bankr. MD FL 12/14/2000).

Hope this helps.

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Customer: replied 2 years ago.
So if there is a first mortgage we should file a claim of lien in order to get priority.

If we file the claim, do we have to enforce it or can we just keep it there until it expires and refile? In essence giving us priority, protecting us from the 1st mortgage while we work with the owner to get us paid back.
And of course if he doesn't or it get substantially worse we could then enforce the lien and take control and rent out with proper notification of 30 days.
Expert:  socrateaser replied 2 years ago.
So if there is a first mortgage we should file a claim of lien in order to get priority.

A: If there is an existing first mortgage, then it has priority over your recorded lien. The primary reason to record the lien is to gain priority in the event that the owner attempts to refinance the existing first mortgage without paying the assessments. Otherwise, the owner could take out the existing first with a new loan and avoid paying the back assessments.

If we file the claim, do we have to enforce it or can we just keep it there until it expires and refile?


A: If you don't enforce within one year, then the recorded lien expires and you would have to file a new lien. It's conceivable that the owner could sneak in a refinancing between the time of lien expiration and the filing of a new lien, but if you were to record a new lien on the same day that the old lien expires, then it would be practically impossible to defeat your lien priority.

And of course if he doesn't or it get substantially worse we could then enforce the lien and take control and rent out with proper notification of 30 days.


A: Correct.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34378
Experience: Retired (mostly)
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