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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 91049
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Uunder florida statue, 718.303 (4) (b), and 720.385, florida

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Uunder florida statue, 718.303 (4) (b), and 720.385, florida homeowner association must commence enforcement of a lien within one year after filed in order to be valid, is this correct ??? and if so what must the hoa do to comply with the stator language , unless action to enforce the lien has commenced, I am fighting a summary judgment on many issues to include accord and satisfaction, breach of contract, etc. but I would like an exact answer, please... ( $$
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Under FL law, both under 718.303 and under(NNN) NNN-NNNN there is no provision under the 2012 (most current) laws as you state for enforcement to commence within one year after filed to be valid. Here is the link to the most current version of FS 718.303 and you can see there is no (4)(b). Here is the most current version of FS(NNN) NNN-NNNN/a>. There is no one year to enforce the FL HOA lien, which is now called a super lien under FL law as it takes precedence over all other liens.

If you have proof you paid the liens, accord and satisfaction is the best
affirmative defense. If you are claiming accord and satisfaction because they did not enforce the lien in 1 year, I am afraid that would not fly. Under FL law, breach of contract, which is what the failure to pay dues would be, has a statute of limitations of 5 years from date payment was due. Failure to pay HOA dues would be considered breach of contract in FL, so that is what the suit would be against the individual unit owner as well



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Customer: replied 1 year ago.

NICE TO TALK WITH YOU AGAIN, MY REPLY WAS LOST, YES I HAVE COPY OF CK, LAST PAYMENT WAS CASHED, AND WAS MARKED, " FOR IN FULL, LAST PAYMENT ", PLUS COPY OF MY LETTER THAT STATED THE SAME, BUT IF I AM DENIED ACCORD, I AM ALSO REQUESTING THE LIEN IS DEFECTIVE AND INVALID, BECAUSE IT WAS ALSO SATISFIED DUE TO THEIR ACCOUNTING RECORDS, EVEN AFTER ALL FEES.%, COSTS ,LATE FEES, AND ATTORNEYS ARE DEDUCTED FIRST THEIR RECORD STATE THEY RECIEVED ENOUGH TO COVER THE FIRST YEAR DELIQUENT ASSESSMENTS THAT LEAD TO THE LEIN AND ALSO SHOWS THAT THEY RECOVERD THE CURRENT YEAR, BUT NO MATTER WHAT THE PAST YEAR HAD TO BE PAID BEFORE THE CURRENT, AND THUS THE LIEN WAS SATISFIED AND SHOULD HAVE BEEN REMOVED, BUT ??? DOES THIS 2012 CHANGE BECOME RETROACTIVE , THE LIEN YEAR WAS FILED IN 2011, AND THEY SEEK TO FORCLOSE IN 2013, TWO YEARS LATER, SHOULD THE STATUE THAT WAS IN EFFECT AT THE TIME OF THE LIENS FILING DATE GOVERN , AND NOT A CHANGE IN THE RULE ???

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response and to work with you again.

If you have proof of payment, then you would use that to prove you have paid and their records prove it was satisfied. I am afraid that if the lien had not expired under the old law before the new law was effective (actually the 2011 law did not contain those provisions either) then the new law would apply.

By making the HOA lien a super lien in FL, you are likely not going to find that the 1 year enforcement applies here (as this is not in any of the laws), so you need to fight and pursue your other defenses.
Customer: replied 1 year ago.

paul thanks, XXXXX XXXXX back and read, 718.116 ( 5 ) ( B), states exactly 1 year, and I know that the hoa is inferior to first mortgage, but what is the date of new law , if they pass in march, june , sept etc, does it start in Jan, 1st, ? or passed in 2011 and effective in 2012, and I find the argument that the lien have to expire first to be entiltled to legal protection of the law that was in force at the time of the lien, If I commit a violation of a law or statue, and the punishment changes later , I can only be accountable for the date of the offense or violation, ? anyway, please check 718.116 (5), ( B ), and tell me lastly do they have to apply the fees in accordance to 718.303 ( 3), all fees, than the assessment , so the money they cant dispute, must be applied as statue , than the " PAST OR OLDEST YEAR, BEFORE THE CURRENT YEAR, " ??? thanks

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response. Are you looking at the link I gave you to the 2012 law? Here is what section 5 says and there is no "b"

(5) An association may suspend the voting rights of a unit or member due to nonpayment of any monetary obligation due to the association which is more than 90 days delinquent. A voting interest or consent right allocated to a unit or member which has been suspended by the association may not be counted towards the total number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under this chapter or pursuant to the declaration, articles of incorporation, or bylaws. The suspension ends upon full payment of all obligations currently due or overdue the association. The notice and hearing requirements under subsection (3) do not apply to a suspension imposed under this subsection.

The law is effective the date it is signed unless the law states otherwise. Any liens still in place at the time the law is passed would be effected by the change in the law.

If the lien expired under the old law before the new law was passed then the lien would not have been valid and in place at the time the new law was passed.
Customer: replied 1 year ago.

ok Paul, I try and find effective date of 2012 law, but regards XXXXX XXXXX of how repayments must to applied AM I CORRECT , THE PRIOR YEAR MUST BE PAID , BEFORE THE CURRENT, AS IMPLIED, 718.303 (3), ? thus the lien would be moot , ex. say 3,000. owed, 1000. fees, etc. 1000. 2011 assessment, and 1000 current year and their record shows they recieved 2900 +, so the first year, delinquent had to be satisfied, ???

Expert:  Law Educator, Esq. replied 1 year ago.
Right, if you paid off the money due that led to the lien then the lien would no longer be valid. The payments are supposed to be applied to the oldest debt unless the bylaws state otherwise.

By the way, here is 718.303 sections 4 and 5 from 2011 and you can see they are the same as 2012:

(4) If a unit owner is more than 90 days delinquent in paying a monetary obligation due to the association, the association may suspend the right of the unit owner or the unit’s occupant, licensee, or invitee to use common elements, common facilities, or any other association property until the monetary obligation is paid in full. This subsection does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators. The notice and hearing requirements under subsection (3) do not apply to suspensions imposed under this subsection.(5) An association may suspend the voting rights of a unit or member due to nonpayment of any monetary obligation due to the association which is more than 90 days delinquent. A voting interest or consent right allocated to a unit or member which has been suspended by the association may not be counted towards the total number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under this chapter or pursuant to the declaration, articles of incorporation, or bylaws. The suspension ends upon full payment of all obligations currently due or overdue the association. The notice and hearing requirements under subsection (3) do not apply to a suspension imposed under this subsection.
Customer: replied 1 year ago.

sorry last follow up, what about the order of repayment, am I correct ??? and Thanks, XXXXX XXXXX

Expert:  Law Educator, Esq. replied 1 year ago.
Yes, the order of repayment is old debts are satisfied before new ones.

After some additional research, on(NNN) NNN-NNNN Florida Statute(NNN) NNN-NNNNgives homeowners associations the legal right to assess a lien on a homeowners home in order to collect past-due fees. The statute gives the association 90 days to execute the lien before it becomes invalid. So from the date you were served with the lien, they had 90 days to file suit under(NNN) NNN-NNNN not 1 year.
Customer: replied 1 year ago.

OK PAUL, I AM GRATEFUL ALTHOUGH I AM REALLY CONFUSED EVENTHOUGH I READ JUST SAME TIME YOU DID,THAT 90 DAYS, BUT I PRAY YOU ARE RIGHT THAT WOULD REQUIRE COUNT 1 TO BE STICKEN FROM THE COMPLAINT, AND LEAVE ONLY COUNT 2 BREACH OF CONTRACT , TO DEFEND, WOULD THEY HAVE TO AMEND COMPLAINT , or attempt a new lien, OR SIMPLY PROCEED TO FORCLOSE ON COUNT 2 ? and how do I tip more than $12 ,

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

The law says 90 days and it also says that the notice that they must sue in 90 days must appear in the lien notice you received.

They do not have to amend the complaint if the one count is stricken, they would just lose on that one count and the other counts would proceed to trial.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 91049
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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