Q: Times are tough. My husband has lost his job and we are behind in payments, including our condo assessments. My neighbors understand our difficulty but they have told us that the board is going to take action against us for our unpaid assessments. What right do they have to do that? Can't they wait until the economy improves? What could happen to us?
A: The lifeblood of a community association is its ability to assess its members for the costs of maintaining the shared or owned amenities. These are the amenities and infrastructure that you use every day. If assessments are not collected, the association cannot meet its budgetary requirements and cannot provide the services necessary to maintain and operate the community.
A community association's right to assess for common expenses and enforce the assessment obligation by liening and foreclosing the unit is based upon contract and statutory law. The Condominium Act (Chapter 718.116 F.S.) establishes the Board's authority to prepare a budget, levy special assessments and take collection procedures including recovering interest, late charges, costs and attorneys fees in the collection and foreclosure process.
The association must follow the procedures set forth in its governing documents and the applicable statutes or there may be problems in the collection and foreclosure process and you, as the unit owner, may have defenses or counterclaims. As long as the association has complied with the requirements in its governing documents and the applicable statutes, once you become delinquent in the payment of assessments, the association can commence the collection process. Because community association should follow a uniform collection procedure they cannot treat you differently than others in a similar situation.
You may have already received a reminder letter that was sent when the assessment was ten days past due. Once the association is entitled to add interest and late charges, these amounts will be reflected in the second letter you receive. You mentioned that the association is going to "take action" against you. This means they have reached the stage in the process when the account is turned over to counsel for collection. This is usually done no later than 30 days after the account becomes delinquent.
Once counsel is advised that you are delinquent in the payment of assessments, you will receive a demand letter. The letter sets forth the exact amount due, including interest, late charges, costs and attorneys fees. It gives you 30 days to pay the account in full. If you still can't pay the amount due in full, the attorney will file a claim of lien that perfects the association's rights by notifying anyone perusing the Public Records that the association has a claim against your unit for unpaid assessments. The association must record a claim of lien before filing a foreclosure lawsuit.
Hopefully you can pay the amount outstanding before any of this occurs. If not, you should seek the advice of an attorney.
Attorney Sylvia Heldreth is a Certified Specialist in Real Estate Law. Her office is located at 1215 Miramar Street in Cape Coral.
This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.