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COLLECTION OF DELINQUENT ASSESSMENTS THRU RENT - POWERFUL TOOL FOR FLORIDA ASSOCIATIONS

By Richard Zaretsky

Real Estate Attorney with THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY

September 04, 2010 12:32 PM

Will collecting rents from tenants of delinquent owners help cash strapped associations? Florida enacted Florida Statutes 718.116(11) for condominium associations and 720.3085(8) for homeowner and property associations (and property associations) and 719.108(10) for cooperative associations effective July 1, 2010. These laws are essentially identical and allow an Association to directly collect rents from Tenants occupying the home and if the Tenant fails to pay the Association, to evict the Tenant as if the Association were the landlord.

But I have been fielding many questions regarding this law, so it is time to address the most popular. (A copy of the 720.3085(8) is at the end of this article and the condominium /co-op statute is nearly identical).

1. The Association assessment(s) must be delinquent. The statute does not define delinquent, but the declaration or rules and regulations most likely does. It does not apply to special assessments, but only regular budgeted assessments.

2. The obligation of the Tenant is to future monetary obligations. The statute addresses future monetary obligations. The key here is what is a "future monetary obligation"? We can see from the application of the term that it is not the rent or monies due to the landlord, but only monies due to the Association. Thus we are going to safely assume that future monetary obligation means monies due to the Association in the future, and not the past due assessments. "In the future" means AFTER the mandatory written notice to the Tenant that the assessment or rent (see below) is to be paid to the Association.

3. If the Tenant is paying the Association according to a demand made by the Association, the Owner cannot evict the Tenant. This appears a bit too broad as the statute says that the Tenant is immune from "any claim" from the Owner. If the Tenant has put the property in disrepair does this mean the Owner has no recourse to evict? This is probably not the intent of the statute but it is an area that will need clarification. Also, as you will read below, if the differential between the monetary obligation and the full amount of the rent is not paid by the Tenant to the Owner, the Tenant can be in breach of the lease. The statute says that if the Tenant is paying the monetary obligation, the Owner cannot evict since the Tenant is "immune from any claim" of the Owner. This is problematic for the Owner and subject to interpretation and application by the courts. It would make sense that if the balance of the rent not paid to the Association under the Association demand is not paid to the Owner, the Tenant should be subject to eviction by the Owner. The statute is not meant to be a shield for the wrongful conduct of the Tenant.

4. The Tenant is to pay "the rent" to the Association upon its written demand. This would seem to throw some cloud of doubt as to what the Association is supposed to collect - whether just the "monetary obligations" or is it "the rent"? In this part (sub-paragraph (a) of the section of the statute it says the Tenant pays "the rent" to the Association. There is a distinguishing qualifier though - This seems to apply only in the case where the Tenant has paid "prepaid rent" to the Owner. In such case the statute says that the future rents (rents still to be paid) are to be paid to the Association which seems to mean the entire rental payment and not just the monetary obligation.

5. If the Association is collecting "the rent" and the sums collected exceed the "monetary obligation", what happens to the surplus? The statute is silent on this question. However, the Association will likely have to account to the Owner for the monies (surplus funds) that it holds that are not for "monetary obligations" (ie: assessments) that accrued after the written notice. Since the statute only applies to assessments after delinquency, theoretically the Association could sue the Owner in the appropriate jurisdictional court (County or Circuit, depending on amount) for a money judgment on the delinquency withoutresorting to the long and expensive lien and foreclosure procedure. It could then attach through a Writ of Attachment the surplus funds. The question is actually then, are there really surplus funds? The answer may be that the rents received after the "pre-paid" rents must be applied to all assessments that accrued subsequent to the written notice to the Tenant that it must pay the rents to the Association. (Remember, those assessments did not get paid because the rent has been "pre-paid" to the Owner and the Owner did not submit them to the Association). After those post-notice assessments are paid, any remaining rents would belong to the Owner and must be paid to the Owner, just as if there had been no pre-paid rent.

THE NEXT STEP - Where this is going is already being seen. Associations should consider creating a "pre-notice lease addendum" for all new leases. This addendum (some Associations are already using this concept) becomes part of the lease with the Tenant and advises the Tenant in advance that it is the Tenant's obligation to pay the regular maintenance assessment to the Association, notwithstanding the terms of the lease.

A copy of the general language of the statute follows. There are small technical changes to differentiate between a unit and a parcel.

Section 720.3085(8) - If the parcel is occupied by a Tenant and the parcel Owner is delinquent in paying any monetary obligation due to the association, the association may demand that the Tenant pay to the association the future monetary obligations related to the parcel. The demand is continuing in nature, and upon demand, the Tenant must continue to pay the monetary obligations until the association releases the Tenant or the Tenant discontinues tenancy in the parcel. A Tenant who acts in good faith in response to a written demand from an association is immune from any claim from the parcel Owner.

(a) If the Tenant prepaid rent to the parcel Owner before receiving the demand from the association and provides written evidence of paying the rent to the association within 14 days after receiving the demand, the Tenant shall receive credit for the prepaid rent for the applicable period and must make any subsequent rental payments to the association to be credited against the monetary obligations of the parcel Owner to the association. The association shall, upon request, provide the Tenant with written receipts for payments made. The association shall mail written notice to the parcel Owner of the association's demand that the Tenant pay monetary obligations to the association.

(b) The Tenant is not liable for increases in the amount of the monetary obligations due unless the Tenant was notified in writing of the increase at least 10 days before the date on which the rent is due. The Tenant shall be given a credit against rents due to the parcel Owner in the amount of assessments paid to the association.

(c) The association may issue notices under s. 83.56and may sue for eviction under ss. 83.59-83.625 as if the association were a landlord under part II of chapter 83 if the Tenant fails to pay a monetary obligation. However, the association is not otherwise considered a landlord under chapter 83 and specifically has no duties under s. 83.51.

(d) The Tenant does not, by virtue of payment of monetary obligations, have any of the rights of a parcel Owner to vote in any election or to examine the books and records of the association.

(e) A court may supersede the effect of this subsection by appointing a receiver.

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Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 email: RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide! Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com.

See our easy to understand articles at:

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Anonymous

Ken

As a landlord recently effected by this law... How can a HOA legally hijack my lease? Is the amount collected from the full amount past due or only the amount past due since the tenant moved in? Can I create a lease addendum in which a portion of the rent be paid to the HOA and the rest to the owner? Please advise...

Sep 13, 2010 06:01 AM

#16

Richard Zaretsky

THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL

Florida Real Estate Attorney

Ken - the law already protects you regarding this. Keep your assessment current and the law does not apply to you. Go late with your assessments and you can have a bifurcated payment - the HOA gets their share and you get the balance (of the rent) direct from the tenant.

Sep 13, 2010 09:20 AM

Cyd Weeks

Palmcoasting.com Real Estate Corp - Palm Coast, FL

Realtor Palm Coast, Fl

This is all just a mess, IMO. Regarding the notice to the landlord..is that BEFORE, after or at the same time they just tape a notice to the door of the tenant. How is there proof that the notice was delivered at all?

The association here of condominiums just did this to two of the tenants in properties with the same owner. They too are demanding full rent payment without even knowing what that rent is. Assuming you are correct with that there would be split payments, the tenants will be advised to pay only such and such to the association and the balance to the owner of the unit.

I'm also finding it curious that the statute doesn't address those that are not paying the association because the association via their management company are not keeping the properties up as is required via the bylaws.

What a muck. Times are so interesting though!

I've forwarded your blog to the landlord so he can make some informed decisions on how to advise the tenants and figure out which way he wishes to handle the situation.

Enjoy!

Oct 27, 2010 01:30 PM

Richard Zaretsky

THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL

Florida Real Estate Attorney

Cyd and others - thank you for the comments.

It should be noted that not surprisingly, the Associations are taking the line that they are entitled to the FULL rent no matter what. The Association attorneys believe there is an ambiguity in the language on when the full rent is payable to the Association, so they are taking the harder line.

I think the Association take it all attitude is the wrong route to take. It presumes the mortgage is not being paid - but reality is that the mortgage may indeed not be in foreclosure - but the grab of all the rent by the Association will stop the cash flow to the landlord and eventually default the mortgage, putting the Association into a worse situation.

I will stand with my interpretation.

The landlord must be noticed the same time as the tenant - or at least attempted to be noticed at his last known address.

Oct 28, 2010 02:13 AM

Cyd Weeks

Palmcoasting.com Real Estate Corp - Palm Coast, FL

Realtor Palm Coast, Fl

This puts the tenant in a very difficult position once again. And I'm assuming also the Realtor® as they are listing the property and placing the tenant. Do you have any advice for the Realtor®.. like can the association disclose to us that there is something in arrears or what the situation is? I work in an area where most of the condos/associations do not have to 'approve' the tenant or the lease. How do we all protect ourselves?

The situation I'm dealing with now is just plain stressful. While I'm supposed to be an advocate for the landlord, I feel TERRIBLE that the young women I've place in the units are now in a situation they weren't prepared for. They now find themselves in the middle of a fight between the landlord and association. Landlord is saying one thing, association another. Let me ask you...if the tenant doesn't pay the full rent to the association when the association demands it but the landlord is demanding they pay part to the association and the balance to the landlord, isn't it likely that the association would take the stance that they have the right to proceed with an eviction? You know how some of these boards are... :)

Very interesting to say the least.

Oct 28, 2010 02:58 AM

Anonymous

Gwen Allen

"If the parcel is occupied by a Tenant and the parcel Owner is delinquent in paying any monetary obligation due to the association, the association may demand that the Tenant pay to the association the future monetary obligations related to the parcel."

What if the unit occupied by the Tenant is current on monthly assessments, but the Owner lives in and owns another unit that is $200, 20 days late, can the Association collect the rent from the tenant to cover the $200 due the association on the owner occupied unit?

Dec 29, 2010 12:09 AM

#21

Richard Zaretsky

THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL

Florida Real Estate Attorney

What a great question, Gwen!

I am going to take a guess that the court would interpret the statute to mean each unit stands on its own, regardless of any common ownership.

Dec 29, 2010 04:01 AM

Anonymous

Kristina

Would a tenant have the right to demand their last months rent and/or security deposit be put forth for the late HOA fees? What guarantee can be given that eviction is not just around the corner and these monies will be lost?

Mar 08, 2011 03:00 PM

#23

Anonymous

Ashley

I have tenants that don't like me, and gave me a 30 day verbal notice to vacate on March 25th, on the 26th, I sent them the notice in writing. They flipped out and went to the HOA's, who I own money to, and decided to pay them April's rent. Their lease expired in 2010 and they have a month to month provision in the lease agreement. Am I not able to evict them under this new law? They have been threatening me saying they will stay in the property as long as they want and if I come for a scheduled inspection they will have me arrested for trespassing because the HOA is the new owner. Is this information correct? Any idea on how I can get them out of the condo? Your help would be greatly appreciated.

Apr 02, 2011 01:13 PM

#24

Richard Zaretsky

THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL

Florida Real Estate Attorney

Ashley

Your tenants are very wrong and are trying to intimidate you and rake you over the coals.

You are the owner.

You are the landlord and paying the rent to the association without the association not making the necessary written demand on them to pay the rent means they did not pay the rent at all and you can evict them for non-payment.

The key is the demand for payment of the rent by the condo assocation - if they did not make that demand then the tenant owes the rent to you. Paying the rent to the association is not an "option" of the tenant - in other words it is not up to the tenant to make that decision, it is up to the association to make that demand.

It sounds like you should be evicting them for non-payment of the rent.

Apr 03, 2011 07:47 AM

Anonymous

Cyd Weeks

I'm not an attorney and Richard can confirm, but I believe since you have already sent them notice ending the month to month lease, you can evict them. You also should then be able to make claim on their security deposit for the rent they did not pay. (as long as the association did not post notice that they pay the association) That has nothing to do with the 'new law', it's Florida statutes. They have a month to month lease, you can require them to leave by serving notice 15 days before the next rent payment is due.

But..it seems to me you are going to have file for eviction. You have a couple of reasons to use. And, by the way, no they can not have you arrested for trespassing. You notify them you are coming to inspect, you keep a record of it, you go and inspect with notice and lease in hand. Should they call the police, you show the police the forms, etc. They may or may not get involved, may just say it's a civil matter and tell you to handle it in court but you would not be arrested.

Apr 03, 2011 01:19 PM

#26

Anonymous

Isaac

The HOA made a demand for rent to me under Florida Statutes 720.116(11) to collect my rent for delinquent assessment balances. The letter had a few lines of the real statute, Florida Statute 718.116(11) cited to me; the rest of the material was the writer's interpretation. The owner received a different letter, but it also cited 720.116(11) and NOT the correct statute, 718.116(11) as its authority and explicity said that it was collecting my rent to pay delinquent assessment balances. Both my letter and the owners letters were unsigned by an individual, but from the management company for the HOA. I paid the rent in its entirety so as to not be evicted and have not received any written receipt as I requested. What do I do; to whom do I report this?

Apr 06, 2011 06:21 AM

#27

Anonymous

Isaac

P.S. When I say report this, I mean to whom (what Florida agency) would I report this improper demand for rent letter.

Apr 06, 2011 06:46 AM

#28

Richard Zaretsky

THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL

Florida Real Estate Attorney

Under Governor Scott proposal, you would not report it to anyone - just file a complaint for an injunction to compel the association to give you a receipt - not a very judicious way to proceed. Write and call the association and ask them to send you a receipt for the rent once your check clears - otherwise your cancelled check can probably be your receipt.

The problem is that the association cannot be relied upon to actually deposit your rent check. Explain that to the assocation management firm and I think then you should get a receipt "pending clearance of the check", which would be fine.

Apr 06, 2011 12:23 PM

Anonymous

Isaac

Thank you. I photocopied the check and sent it by certified mail. (as well as my written request to receive a written receipt)

Apr 07, 2011 01:03 AM

#30

Anonymous

Vycke

I'm in receipt of a demand letter from the condo association where I am a tenant, that the condo association is demanding rents to be paid to the association because my landlord is delinquent on his assessments since July 2, 2011. The dues are paid quarterly at this subdivision. The letter was dated for the 8th of August, but I signed for it on the 10th of August (ceritifed mail).

I have already paid my rent to the lordlord for August, the letter states that "in this case, the Tenant (myself) must provide the association with written proof of their payment within 14 days after receiving this notice and the Tenant's obligation to pay rent to the association would then begin with the next rental period." On August 19, my fob to enter through the guard gate (resident section) was turned off and my access to the manned guard (visitor section) was denied. I gained access to the property by having my neighbor call me in as her guest. I went to the association office and asked why my access to the property was denied being that I had a few more days to show proof that my August rent was paid. A little side note: I was placed on bed rest and returning home from my doctor's office when I was not able to get back in. The assistant property manager informed me that the unit owner was deliquent on his assessment as of July 2, 2011 and a previous water bill that he was suppose to pay directly to the water company since the association did not have the water included in the association fee. The association started including the water in the association fee in October 2010. When I said to the assistant property manager that I am aware of the delinquency, although I am not sure of the amount, but it can not be that much since he is only behind on his quarterly assessment since July 2, 2011 when all the assesments are due. She said, well that is why your access has been denied. I asked about the quoted Fl. Statute 718.116(11) that stated I had 14 days, she said that doesn't apply to me having access only to show proof of rental funds paid to the lordlord. The access denied is because the landlord is delinquent. When I read the Fl. Statute 718.116(11) that is not what the law states. She continued to mentioned that I will not gain access to the premises until I pay my Sept. 1 rent to them and then she will discuss it with the property manager about me having access to all the common areas as well as access through the guard gate. I mentioned that pursuant to the same florida statute that was quoted in the demand letter that "I am to pay my rent to the association according to my lease agreement, which states that I pay rent the first of the month and I also mentioned that the association can not make me pay more than my lease amount nor can they force me to pay rent prior to the rental due dates.

I truly believe that the management company that the association hired are handling legal matters (UPL) that are out of their control and abusing the law my intimidation and unlawfull acts. The unit owner is not delinquent 90 days or more on his assesment, which by law the association would have legal grounds to deny me access to the pool, gym, and clubhouse but not access to park my car in the unit's driveway or access onto the premises.

Is there any legal action and or damages I can pursue against the association and property manangement company? I have a high risk pregnancy and they are totally stressing me out right now because they are abusing their position, power, authority and the law.
Two more questions, I am going to start by my rent to the association starting Sept. 1, 2011, but how can I get the association to tell me how much the unit owner is delinquent and it seems like every quarter I will be paying the assesments, next assessment due Oct.2, 2011. Can I demand that the Association release me from rental obligation once the delinquencies have been satisfied and the unit owner is now current or can the association continue to demand that I pay rent even though the unit owner is no longer delinquent?

Can the association demand rents without going through the lein foreclosure process to obtain title? And do the association have to give me 14 day notice when then are going to deny me access to the premises and common areas or does the demand letter which states the 14 day encumberance all?

Lastly, the unit owner wants to renew my lease, I have rented from him going on 6 years with the renewing of the lease, if I bring up these matters, they may deny my renewal, the managment is nasty like that. How can I tread lightly, but still maintain my rights as a tenant? Please help before I go into pre-term labor!!!!!

Aug 20, 2011 08:15 AM

#31

Richard Zaretsky

THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL

Florida Real Estate Attorney

Yes - you can have an action against the management company and / or the homeowners association for denial of access to you property, physical harm and damages you have incurred, along with attorney fees. The possibility of your success is all about the facts as they are presented and believed by the court.

For the managment company to be making legal decisions is not UPL. Anyone with authority to make legal decisions can do so........ it is providing legal advice that is UPL if not provided by an attorney.

Seek the advice of an attorney. Although you probably now have the matter all resolved, your action for damages is still valid. The key is what are the monetary damages and is it worth while to seek them.......... or is it merely a matter of principal?

On the last item - you must pay the association until the pending instruction is released by the association. It is not your responsibility to determine or even know if the association is paid in full -- that is between the owner and the association. Don't insert yourself where you should not be involved.

Sep 21, 2011 03:03 PM

Anonymous

Gary

I filed bankruptcy and homeonwers association is now trying to collect unpaid association dues listed in bankruptcy. I have unit rented and am trying to short sell. I agree I have to pay the current association dues from the time I filed bankruptcy forward but not the unpaid assocation dues listed in bankrupcy. Any suggestions?

Jul 10, 2012 10:18 PM

#33

Richard Zaretsky

THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL

Florida Real Estate Attorney

If they try to collect the funds from you personally they will be violating the bankrupcy court order and could be found in contempt of court.

However....... the lien of the HOA on the real estate remains notwithstanding your bankruptcy. So they can demand payment for those amounts from which YOU no longer have a personal obligation to clear the way for a short sale. Alternatively the unit can be foreclosed by the lender and the association will be out the funds anyway.

The big question is can the association collect the rents based on the old amounts still due and unpaid even though you have paid current since your bk filing. I don't think you want to hear my opinion on that issue............. .

Jul 11, 2012 04:39 AM

Anonymous

Thomas Kulpa

Sir: (Sunday 10/21/2012)

I purchased a Townhouse in Palm Beach Gardens Florida; lived there 3 years prior to moving to Texas

Have been renting the Townhouse since.

Current Tenant could not afford the $2,100 monthly rent after being there 3 months; so I wrote an addendum stating they are now on a month to month notice, all rules of the Origianal Lease Agreement remain in force, and they are to pay me (Owner) $1,200 per month with 1 months notice. If they are late in a payment I have the right to request their removal within 3 to 5 business days for non-payment (even if they are late). The Townhouse is furnished with my furniture, paintings, etc.

I am behind on my Mortgage; and the bank is aware and cooperative

I am behind on my Association fees ($550/month).

I filed Chapter 13 in 2011; nothing was done by the Association or Bank at that time.

Now the Association is filing Foreclosure which a sale date of October 11, 2012 (past).

I spoke with their Legal Firm who said it will take time for them to obtain title; and I am allowed to enter the property as the owner, remove my furniture and have the tenant move out - providing I gave the Tenant notice. I did give the tenant notice on the 10th of this month (October/2012) via certified/return-receipt mail, email, and regular mail with no return receipt received yet, no response via email and she even block my cell phone call number.

The Association Attorneys verbally gave me until the end of October to remove my belongings, and have the tenant move out as well. I have all the necessary paperwork that I've submitted.

What would you suggest I do in this situation; I am scheduled to Fly from Texas to Florida this Thursday, returning on the 31st of October. On October 30th, movers are scheduled to remove my furniture and belongings and put into storage in Florida.

The Mortgage company stated they want to pay the Association the past arrear monies so they can keep title; and allow me to remain in the unit and/or rent it until the Chapter 13 is discharged (in about another 3 to 4 years).

The Association did not have the Tenant sign an ammendment to my Original Lease Agreement; whereby the Tenant must pay any Assoc Dues if I default (which I did). So, do they have the right to go into foreclosure being they didn't notify Tenant that they must pay?

What would you suggest I do. The property is worth approx $90,000 less than what should be True Market Value based on the market decline in Florida.

I'm not clear if I should try to let the Mortgage company work this out and me keep the property or just remove my belongings and say good bye. I owe about $1,4000 to the Association (which the Bank is willing to pey per their Tax Accounting Department; and I have not paid my mortgage in 2 years...but the bank is aware of this as I was unemployed...we will work it out after the Chapt 13 Discharge per the Bank.

Your suggestions.....also, please write to me at Tommy1TMk@gmail.com in case i lose this bookmark/URL.

Thank You

Tommy

Oct 21, 2012 07:36 AM

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