CopyCited 24 times | Published | Florida 4th District Court of Appeal | 2005 WL 1226127
...mortgage"); Armand's Eng'g, 324 A.2d at 337; Conversion Prop., 994 S.W.2d at 813-14. The purchaser at the foreclosure sale was "jointly and severally liable" with Garcia for "all unpaid assessments that came due up to the time of transfer of title." § 718.116(1)(a), Fla....
...After its dismissal from the foreclosure suit, the Association retained the right to protect its interest by initiating foreclosure proceedings against the real estate or bringing "an action to recover a money judgment for the unpaid assessments." § 718.116(6)(a)....
...768, 775-76 (1927) (emphasis added); see Lockwood v. Pierce,
730 So.2d 1281, 1283 (Fla. 4th DCA 1999); In re Estate of Hatcher,
439 So.2d 977, 980 (Fla. 3d DCA 1983). In this case, before or after its dismissal from the case, the Association filed no pleading concerning its claim of lien. Section
718.116(6)(a) contemplates two possible actions the Association might have pursued "an action to foreclose a lien for assessments" and "an action to recover a money judgment." The Association had *1123 the legal right to collect unpaid ass...
CopyCited 15 times | Published | Florida 4th District Court of Appeal | 2003 WL 187124
...Padow's answer denied any delinquency. In June, 2000, the association filed a motion for summary judgment. In July, 2000, Padow sent the association a $2,000 check. The association acknowledged receipt of the check and indicated that it would apply the payment pursuant to section 718.116(3), Florida Statutes (2000)....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1894
...Gelfand of Becker, Poliakoff & Streitfeld, P.A., West Palm Beach, for appellant. Andrea L. Wolfson, Hollywood, for appellees. DELL, Judge. This appeal concerns the involuntary dismissal of a counterclaim and third-party complaint seeking to foreclose a claim of lien for condominium assessments made pursuant to section 718.116, Florida Statutes (1985)....
...gineer make an inspection to determine whether the building needed to be re-roofed. On September 13, 1984 the board voted to replace the roof. On November 29, 1984 appellant recorded a claim of lien against appellees' condominium unit as provided by section 718.116(4)(a), Florida Statutes (1983)....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal
...e first time that the Thackers pay a monthly maintenance fee for each of their two units. The Thackers, however, steadfastly refused to pay two fees. Thus, the Association filed a claim of lien against their units in 1980 for unpaid assessments. See § 718.116(4)(a), Fla....
...sman's mistake where the instrument, as reformed, would conflict in a material way with provisions of a controlling statute. In this case, paragraph VIII of the Declaration, as reformed, materially conflicts with sections
718.104(4),
718.115(2), and
718.116(8), Florida Statutes (1977)....
...As reformed, paragraph VIII conflicts with sections
718.104(4)(g) and
718.115(2) because the manner of sharing common expenses is no longer the same as the undivided shares in the common elements. The Thackers' share of common expenses is now less than their ownership interest in the common elements. Section
718.116(8) provides in whole:
718.116 Assessments; liability; lien and priority; interest; collection. ... . (8) No unit owner may be excused from the payment of his share of the common expense of a condominium unless all unit owners are likewise proportionately excused from payment... . Paragraph VIII, as reformed, violates section
718.116(8) because its effect is to excuse the Thackers from the payment of their share of common expenses without proportionately excusing the other unit owners....
CopyCited 7 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 322, 2013 WL 2096257, 2013 Fla. LEXIS 1000
superiority for tax deeds except to municipal liens); §
718.116(5)(a), Fla. Stat. (2004) (providing superior lien
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 19783, 2014 WL 6834331
LAWSON, J. In this foreclosure case, plaintiff Beltway Capital, LLC (“Beltway”) appeals from an “Order Granting Defendant’s Motion to Determine Amounts Due,” finding that Beltway could not seek safe harbor under section 718.116(l)(b), Florida Statutes (2013)....
...) GMAC subsequently assigned the mortgage to Beltway, Copies of the assignments were attached to the complaint. The Greens filed an answer and affirmative defenses asserting that Beltway would be liable for unpaid condo association assessments under section 718.116(1), Florida Statutes (2011)....
...Beltway obtained a Final Judgment of Foreclosure and purchased the home at a foreclosure sale. The Greens filed a motion to determine the amounts it was due, specifically seeking a determination of whether Beltway was entitled to safe harbor under section 718.116(l)(b) as a first mortgagee or a subsequent holder of the first mortgage. Following a hearing on the motion, the trial court entered an “Order Granting Defendant’s Motion to Determine Amounts Due,” finding as follows: 2. Section 718.116(l)(b), Florida Statutes, only includes the original lender, the lender’s successor, and the lender’s *332 assignee as parties qualifying for the narrow liability exception....
...qualify for the liability exception. 4. The Plaintiff has failed to pay any amounts due, including amounts coming due before and after issuance of the Certifícate of Title on or about May 12, 2012. 5. The Plaintiff is subject to the requirements of section 718.116(l)(a), Florida Statutes....
...Standard of Review A trial court’s interpretation of a statute presents a pure issue of law subject to de novo review on appeal. Fla. Dep’t of Children & Family Servs. v. P.E.,
14 So.3d 228, 234 (Fla.2009); Kasischke v. State,
991 So.2d 803, 807 (Fla.2008). Merits Section
718.116(l)(a), Florida Statutes (2012), part of the Condominium Act, not only makes a condominium unit owner liable for association assessments that come due while he or she is the owner, but also makes the unit owner jointly and severally li...
...regular assessments that came due in the twelve months preceding acquisition of title or one percent of the original mortgage debt. See also Bay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n,
895 So.2d 1197, 1197 (Fla. 3d DCA 2005) (noting that section
718.116(1) is a “safe harbor provision” that “provides a statutory cap on liability of foreclosing mortgagees for unpaid condominium assessments that become due prior to the first mortgagee’s acquisition of title pursuant to a foreclosure proceeding”)....
...assignee,” which does not include Beltway because it was not a direct assignee of the original lender. Beltway correctly notes that the first fatal flaw in both the trial court and The Greens’ construction of the statute is their equation of “first mortgagee” with “original lender.” Neither section 718.116 nor any other part of the Condominium Act define the term “first mortgagee.” Black’s Law Dictionary defines the term “first mortgage” as “[a] mortgage that is senior to all other mortgages on the same property.” Black’s Law Dictionary 1102 (9th ed....
...2011-CA-15322-0,
2011 WL 8119337 (Fla. 9th Cir.2011) (Order dated May 17, 2012); Avanti Condo. Ass’n, Inc. v. Fed Nat’l Mortg. Ass’n, Case No. 16-2012-CC-009329 (Duval Cnty. Ct.2012) (Order dated May 23, 2013). Id. The above cases demonstrate that when section
718.116(l)(b) is viewed within the broader context of mortgage law, an assignee of the first mortgagee is created by operation of law through ownership of the loan, not by written assignment of the mortgage, much less direct written assignment from the original lender....
...law.” (internal quotations and citations omitted)). Accordingly, we reverse the final judgment and remand for entry of a judgment consistent with this opinion, which recognizes that Beltway is entitled to benefit from the safe harbor provision of section 718.116(l)(b), Florida Statutes (2018)....
CopyCited 6 times | Published | United States Bankruptcy Court, M.D. Florida | 1986 Bankr. LEXIS 4693
...ion on Schedule A-3 as an unsecured creditor with a disputed debt in the sum of $5,854.64. On July 1, 1986, the Association recorded in the public records of Pinellas County, Florida, a claim of lien in the amount of $8,723.92 pursuant to Fla. Stat. § 718.116(4) at O.R....
...Wash.1984) (county's post-petition filing of personal property tax lien violated § 362 because no retroactive effect under state law); In re Rogers,
39 B.R. 295 (Bankr.W. D.Ky.1984) (creditor's post-petition filing of crop lien violated § 362 because no retroactive effect under state law). Nothing in Fla.Stat. §
718.116(4) indicates that post-petition recordation would relate back to a time pre-petition. Based on the foregoing, the post-petition recordation of the claim of lien by the Association constituted a violation of the automatic stay because under Florida law §
718.116(4), the type of lien involved here is only effective when it is recorded in the public records....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...for the court to order the Bank to pay monthly assessment payments to the Association. The trial court agreed. We reverse. As the Association concedes, the Bank is not contractually obligated to pay condominium maintenance fees on this unit. Nor, as section 718.116(1)(b), Florida Statutes (2009) confirms, is it legally obligated to do so before it obtains title: (b) The liability of a first mortgagee ......
...ued or came due during the 6 months immediately preceding the acquisition of title ... or 2. One percent of the original mortgage debt.... See Bay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass'n,
895 So.2d 1197, 1197 (Fla. 3d DCA 2005) (noting that section
718.116(1) is a "safe harbor provision" that "provides a statutory cap on liability of foreclosing mortgagees for unpaid condominium assessments that become due prior to the first mortgagee's acquisition of title pursuant to a foreclosure proceeding")....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1979 Fla. App. LEXIS 15839
...1965, 1971, and 1975 through 1978. The chapter has been renumbered. See Chapter 718. [2] Appellees additionally quote from post-1971 legislation as elucidating upon the intention of the Legislature when it originally enacted the Condominium Act. See § 718.116(8), Florida Statutes which reads: "No unit owner may be excused from the payment of his share of the common expense of a condominium ......
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1995 WL 366682
...irmative defenses. [2] Subsequently, the Association moved for, and was granted, summary judgment on the foreclosure suit. The Association then moved for attorney's fees as the prevailing party in the foreclosure action pursuant to Florida Statutes, Section 718.116(6)(a), (1993)....
...act as to whether the Association properly notified the Auerbachs about the special assessment. We agree. In the instant case, the Association sought to foreclose on the Auerbachs' unit because the Auerbachs failed to pay a special assessment. See §§ 718.116(5)(a), (6)(a) Fla....
...However, in order to foreclose on a unit based upon the unit owner's failure to pay a special assessment, the condominium association was required to prove that it sent written notice of the "specific purpose or purposes" of the assessment to each unit owner. § 718.116(10) Fla....
...We now turn to the appellant's argument on the main appeal relating to the issue of the attorney's fee award. In the underlying case, the trial court granted attorney's fees to the Association as the prevailing party in the foreclosure action. See § 718.116(6)(a), Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2014 WL 3455485, 2014 Fla. App. LEXIS 10898
...FACTUAL AND PROCEDURAL HISTORY
In 2009, Central filed an action to foreclose a mortgage after the borrowers
defaulted on the underlying loan. Central named the borrowers and the
Associations as defendants. In its Answer, the Associations asserted entitlement to
assessments pursuant to sections
718.116 and
720.3085, Florida Statutes (2013).
On October 4, 2011, the trial court entered final judgment of foreclosure in
favor of Central. Paragraph 4 of the final judgment states that Central’s lien is
“superior in dignity to any right, title, interest or claim of the defendants” with the
exception of any assessments that are superior pursuant to section
718.116....
...The final judgment of foreclosure does not state what amount, if any,
was due to the Associations. Rather, paragraph 4 of the final judgment solely
establishes the priority of liens and provides that Central’s lien is superior to the
Associations’ liens, except with respect to assessments under section 718.116.
Simply put, when Central filed its post-judgment motion, there was nothing for the
trial court to enforce....
....
As in Wells Fargo Bank, paragraph 12 of the final judgment in the instant
case contained a general reservation of jurisdiction, and did not specifically reserve
jurisdiction to determine the amount of assessments due pursuant to sections
718.116 or
720.3085....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2002 Fla. App. LEXIS 17559, 2002 WL 31662719
...which required the vote of the entire Association pursuant to section
718.113(2), Florida Statutes (2000). The court awarded Beach Club Villas all sums due on the assessments for termite damage repairs, roof repairs, and roof replacement pursuant to section
718.116(5), Florida Statutes (2000), with a credit to George for damages caused by the roof leaks....
...AWARD FOR ASSESSMENTS NOT PLED We find error, however, in the trial court's assessments for roof repairs and replacement which were not part of the pleadings. We reject the argument that the claim of lien for the mansard replacement and termite damage repairs can also serve to foreclose on these two assessments. Section 718.116(5)(b), Florida Statutes (2002), states: [t]o be valid, a claim of lien must state the description of the condominium parcel, the name of the record owner, the name and address of the Association, the amount due, and the due dates.......
...The word "accrue" references assessments already made before a claim of lien is filed, but coming due afterwards. The trial court thus interpreted the language of the statute as authorizing the inclusion of the two *820 separate assessments made after the filing of the claim of liens in its award to Beach Club Villas. Section 718.116(6)(a) states that the action to foreclose a lien is brought in the same manner as an action to foreclose a mortgage of real property. Section 718.116(3) references interest on assessments and installment payments on those assessments which are not paid when due....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2014 WL 1031407, 2014 Fla. App. LEXIS 3923
...5 Plaintiffs Motion for Partial Summary Judgment, finding that appellant was liable to the Association for the $16,291.61 in unpaid assessments on the condominium unit. The trial court ruled that appellant was liable for the unpaid assessments under section 718.116(l)(a), Florida Statutes....
...Appellant maintains that the provisions of Chapter 197 concerning tax collections control over the provisions of Chapter 718 concerning the collection of condominium assessments. In response, the Association argues that liability for unpaid assessments under section
718.116(l)(a) does not attach until one becomes a “unit owner,” and that section
197.552 does not have any effect on the liability imposed by section
718.116(1)(a)....
...“Thus, under sections
197.552 and
197.573(2), neither covenants governing assessments nor liens for unpaid assessments survive the issuance of a tax deed.” Cricket Props., LLC v. Nassau Pointe at Heritage Isles Homeowners Ass’n, Inc.,
124 So.3d 302, 305 (Fla. 2d DCA 2013). Section
718.116(l)(a), by contrast, addresses liability for assessments on condominiums and provides in pertinent part: A unit owner, regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu...
...ure, is liable for all assessments which come due while he or she is the unit owner. Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title. ... § 718.116(l)(a), Fla....
...5th DCA 2013); Cricket Props.,
124 So.3d at 307 . *456 Although these cases involved liability for assessments under a statute governing homeowners associations, see §
720.3085(2), Fla. Stat., their reasoning applies equally to liability for assessments on a condominium unit. Section
718.116(1)(a) contains language that is identical in all relevant respects to the language of section
720.3085(2). Although section
718.116(l)(a) imposes liability for unpaid assessments on a unit owner of property acquired by “transfer of title,” it is well-settled that acquisition of title by tax deed does not represent a transfer of title but instead constitutes the commencement of a “new, original and paramount” title. See Cricket Props.,
124 So.3d at 306 . Therefore, section
718.116(1)(a) does not save liens for unpaid assessments from extinguishment under Chapter 197 when unit owners acquire title by tax deed....
...fic statute is given effect and the general statute is given effect only to the extent that it does not contradict the specific statute.” Lunohah Invs., — So.3d at —, 39 Fla. L. Weekly at D41. Thus, sections
197.552 and
197.573(2) control over section
718.116(l)(a), because they are “the more specific statutes as to the key issue, and any conflict must be resolved in their favor.” Cricket Props.,
124 So.3d at 307 ....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 1152, 2016 WL 347321
...to foreclose. OneWest alleged that its mortgage was superior to any claimed interest in the property, specifically, any interest Hidden Ridge may claim. Hidden Ridge answered, claiming an interest in the condo based upon its lien rights pursuant to section 718.116, Florida Statutes (2013), and otherwise alleging its lack of knowledge regarding the other allegations....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1987 WL 3334
...Subsequent to filing these Liens, the Plaintiff filed this suit in the 17th Judicial Circuit in and for Broward County, Florida, seeking to foreclose these Claims of Lien. The Plaintiff alleged that the Defendant owned "condominium parcels", which were subject to assessment by the Plaintiff under § 718.116 of the Florida Statutes and pursuant to the Declaration of Condominium....
...unit owner, regardless of how title is acquired, including without limitation a purchaser at a judicial sale, shall be liable for all assessments coming due while he is the owner of the unit. 10. § 711.15(1) has been amended and is now codified as § 718.116(1), and the exact wording can be found under that section....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 14788
...ges
the final summary judgment entered in favor of U.S. Bank, N.A. The legal issue before
this court is whether ownership of the note and mortgage is essential to entitlement to
the limited liability for unpaid condominium assessments afforded by section
718.116(1)(b), Florida Statutes (2013) (the safe harbor provision)....
...assessments, but the parties could not
agree on the extent of U.S. Bank's liability for the unpaid assessments. As a result,
Brittany's Place filed a lien foreclosure complaint against U.S. Bank. U.S. Bank
counterclaimed, seeking compliance with section
718.116(1)(b), as well as a declaration
of the parties' rights under the statute and damages pursuant to section
718.303(1)(a).
U.S....
...ovision.
The trial court entered summary judgment in favor of U.S. Bank. The
court found that there were no genuine issues of material fact and that U.S. Bank met
the statutory requirements entitling it to limited liability under section 718.116(1)(b) as a
matter of law.
We review an order granting summary judgment de novo....
...Green COA, Inc.,
153 So. 3d 330, 332 (Fla. 5th DCA 2014) (first citing
Fla. Dep't of Children & Family Servs. v. P.E.,
14 So. 3d 228, 234 (Fla. 2009), then
citing Kasischke v. State,
991 So. 2d 803, 807 (Fla. 2008)).
The statute at issue, section
718.116, is part of the Condominium Act,
chapter 718, Florida Statutes. Subsection (1)(b), the limited liability or safe harbor
provision of section
718.116, provides that "[t]he liability of a first mortgagee or its
successor or assignees who acquire title to a unit by foreclosure or by deed in lieu of
foreclosure for the unpaid assessments that became due before the mortgagee's
acquisition of title is limited to the lesser of" unpaid common expenses and regular
assessments accrued during the twelve months before the acquisition of title or "one
percent of the original mortgage debt." §
718.116(1)(b)(1)(a), (b). The reduced liability
is only available if the association was joined as a defendant in the foreclosure action. §
718.116(1)(b)(1)(b)....
...an.1 Brittany's Place asks
this court to reverse the final summary judgment in favor of U.S. Bank by determining,
as a matter of law, that ownership of the note and mortgage is a requirement for U.S.
Bank to be entitled to limited liability under section 718.116.
"[W]hen the language of the statute is clear and unambiguous and
conveys a clear and definite meaning, there is no occasion for resorting to the rules of
statutory interpretation and construction; the statute must be given its plain and obvious
meaning." Knowles v....
...Bankers Life Assurance Co. of Fla. v. Williams,
212 So. 2d 777, 778 (Fla. 1st DCA
1968))). We are asked to determine whether ownership of the note and mortgage is a
requirement of either category.
The starting point for our analysis is the text of section
718.116....
...and construe related statutory provisions in harmony with one another." Knowles,
898
So. 2d at 6 (quoting Forsythe v. Longboat Key Beach Erosion Control Dist.,
604 So. 2d
452, 455 (Fla. 1992)).
In our recent examination of another provision of section
718.116, this
court identified a first mortgage as the mortgage having priority over all other mortgages
on the property....
...And although the statute does not define first mortgagee, it does define
"successor or assignee": "the term 'successor or assignee' as used with respect to a
first mortgagee includes only a subsequent holder of the first mortgage." §
718.116(1)(g) (emphasis added)....
...(2014).
Under the UCC, a holder is an entity entitled to enforce the note, and "[e]nforcement
rights are independent of ownership of the note." Hagstrom, 41 Fla. L. Weekly at
D1672 n.2. Our conclusion that ownership is not essential to a successor or assignee's
entitlement to limited liability under section 718.116(1)(b) is bolstered by the fact that the
legislature did not use the word owner to restrict limited liability to only owners of the
first mortgage (or note).
Because both parties, in varying degrees, rely upon Beltway Capital and
Bermuda Dunes Private Residences v....
...Bermuda Dunes to conclude that once the first mortgagee assigned the note and
mortgage to another entity it was no longer the owner of the mortgage and therefore not
-9-
entitled to limited liability under section 718.116(1)....
...The
trial court's finding would only be correct if the term successor or assignees—
subsequent holders of the first mortgagee—is not limited to ownership of the note and
first mortgage.
Because we conclude that a successor or assignee of the first mortgage
otherwise entitled to the limited liability of section 718.116(1)(b) need not also be an
- 10 -
owner of the note and mortgage at the time of foreclosure, we affirm the order granting
final summary judgment.
Affirmed.
VILLANTI, C.J....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 16759
...Plantation Road, # 306, LLC (the “LLC”) in case 4D15-3057. 1 The central issue in both cases is whether the doctrine of collateral estoppel precludes PNC Bank from seeking entitlement to the safe harbor protection for unpaid assessments contained in section 718.116, Florida Statutes (2016)....
...y relief. In its complaint, PNC Bank specifically alleged that as a first mortgagee who obtained title to the subject property via foreclosure, its liability for unpaid assessments was limited pursuant to the “safe harbor” provision contained in section 718.116, Florida Statutes.....
...l of the Association from the 2012 foreclosure action operated as an adjudication on the merits regarding the superiority of the assessment lien over PNC Bank’s mortgage lien. Accordingly, the LLC maintained that PNC Bank was no longer entitled to section 718.116’s safe harbor protection....
...In the present case, the trial court dismissed PNC " Bank’s declaratory action baséd on its finding that the involuntary dismissal of the Association from the foreclosure action rendered the assessment lien superior to the mortgage lien, thereby precluding PNC Bank’s entitlement to section 718.116’s safe harbor protection. Section 718.116, Florida Statutes, addresses liability for condominium assessments and provides, in relevant part, that “a unit owner, regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments which come due while he or she is the unit owner.” § 718.116(l)(a), Fla....
...The unit’s unpaid common expenses and regular periodic assessments which accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association; or b. One percent of the original mortgage debt.... §■ 718.116(l)(b)l., Fla. Stat. Subsection 718.116(l)(f) makes clear, however, that the above safe harbor provision “shall not be available in any case where the unpaid assessments sought to be recovered by the association are secured by a lien recorded prior to the recording of-the mortgage.” § 718.116(l)(f), Fla. Stat. For the reasons discussed below, we hold that the Association’s dismissal from the foreclosure action did not preclude PNC Bank’s entitlement to section 718.116’s safe harbor protection and, therefore, dismissal of PNC Bank’s action based on the doctrine of collateral estoppel was not appropriate....
...en recorded prior to the recording of the first mortgage lien. This is because the record evidence establishes that the Association only sought unpaid assessments dating back to 2008, five years after the mortgage lien was recorded in 2003. See *101 § 718.116(5)(a), Fla....
...Accordingly, we reverse the trial court’s dismissal of PNC Bank’s complaint in case 4D15-266 and remand for further proceedings consistent with this opinion. We also reverse the summary judgment in case 4D15-3057 and remand for entry of summary judgment in favor of PNC Bank who is entitled to section 718.116’s safe harbor protection for unpaid assessments....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1994 WL 202961
...e was amortized for five years. Thus, very specific language was required to defeat the mortgagee. The language in this case gives the association a right to a lien only "[i]n the event the monthly mobile type home site charge is not paid when due." Section 718.116(1)(a), Florida Statutes (1993), which governs only condominium assessments, limits the liability of the first mortgagee who acquires title by foreclosure or by deed to the unpaid assessments up to six months or one percent of the original mortgage debt....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1997 WL 30883
...One violation alleged was that RIS, while in control of the association, failed to pay assessments due on developer-owned units, from November 16, 1987, the date the units were created through recordation of the declaration, until the sale of the units, in violation of section *358 718.116(1)(a) and (9)(a), Florida Statutes....
...ary 29, 1997, opinion any reference to appellant's civil penalty being reversed. Appellant conceded it was not appealing the civil penalty, and our reference to it was in error. PARIENTE, J., and TAYLOR, CAROLE Y., Associate Judge, concur. NOTES [1] Section 718.116 is the section of the Condominium Act requiring all unit owners, regardless of how title is acquired, to pay assessments which come due while they are the unit owner, with only limited circumstances when the payment of these assessmen...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1991 WL 105617
...In so far as the final judgment denies the Association attorney's fees and costs, we reverse and remand for the court to award the appellant Association reasonable attorney's fees and costs. REVERSED and REMANDED. PETERSON, J., and ANTOON, J., II, Associate Judge, concur. NOTES [1] See also section 718.116(4)(a), Florida Statutes.
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1993 WL 30570
...The attorney's fees covered the services of the association's attorneys in the rescission action. The problem with the disbursement is that the $100,000 left over after attorney's fees were paid was used to reimburse only some but not all of the unit owners. [1] Section 718.116(9)(a), Florida Statutes (1991), provides that no unit owner may be excused from paying his share of common expenses unless all unit owners are likewise proportionately excused from payment....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2013 WL 3814956, 2013 Fla. App. LEXIS 11632
...ciation’s Corporate Representative, Board President, and Property Manager (collectively, the “Association’s representatives”). For the reasons discussed below, we grant the petition and quash the trial court’s protective order. Pursuant to section 718.116, Florida Statutes (2010), the Association filed an action against Marshall to foreclose two claims of lien for condominium association assessments....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 10842, 2015 WL 4366573
...), appeals the order entered by the trial court ruling that appellee/plaintiff-below, *1224 AmTrust REO I, LLC (REO), was entitled to receive. the protection (regarding its obligation to pay past-due condominium fees) of the safe-harbor provision of section 718.116 of the Florida Statutes (2014)....
...County, Florida. Said interests, if any, are subject and inferior to the lien of Plaintiffs mortgage. Metrowest answered the complaint and asserted a counterclaim for foreclosure on its claim of lien for past-due condominium assessments, pursuant to section 718.116 of the Florida Statutes....
...*1225 Four months later, REO purchased the subject property at the foreclosure sale. Metrowest thereafter forwarded an es-toppel letter to counsel for REO demanding $30,241.28 in past-due condominium assessments. REO responded, by letter, invoking the safe-harbor provisions of section 718.116....
...ed.” The motion requested that the court enter an order requiring Metrowest to provide a detailed accounting of all past-due assessments. Metrow-est filed a response arguing that REO was not authorized to benefit from the safe-harbor provisions of section 718.116 because REO was the servicer of the mortgagee, not the owner of the subject property. The motion further asserted that the trial court lacked continuing jurisdiction to rule on REO’s motion because the court did not retain jurisdiction to rule on a section 718.116 claim in the final foreclosure judgment. The matter proceeded to a hearing. At the close of the hearing, the trial court ruled that REO was entitled to receive the benefit of the safe-harbor provisions of section 718.116. Metrowest challenges this ruling, arguing that the trial court’s order must be reversed because the trial court lacked the authority to issue a post-judgment order on the issue of section 718.116 liability since the trial court had not retained jurisdiction, in its foreclosure judgment, to issue such a ruling....
...In Callahan , Central Mortgage Company filed an action to foreclose a mortgage and named the borrowers, as well as several condominium associations, as defendants. In their answer, the condominium associations asserted entitlement to recover past-due assessments pursuant to section 718.116....
...The trial court ultimately entered a final judgment of foreclosure in favor of Central Mortgage, and paragraph 4 of the judgment stated that Central Mortgage’s lien was “superior in dignity to any right, title, interest or claim of the defendants” with the exception of any assessments that are superior pursuant to section 718.116....
...to the [condominium associations], Rather, paragraph 4 of the final judgment solely establishes the priority of liens and provides that Central’s lien is superior to the [condominium associations’] liens, except with respect to assessments under section 718.116....
...urbed. Id. at 962. Relying on Callahan and Montreux, we conclude that the trial court lacked continuing jurisdiction to rule on REO’s post-judgment motion. Accordingly, we quash the trial court’s order. QUASHED. COHEN and LAMBERT, JJ., concur. . Section 718.116 of Florida's Condominium Act provides, in relevant part: 718.116....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 10883
...claiming by, through or under the defendants or any of them
and the property will be sold free and clear of all claims of
the defendant with the exception of any assessments that
are superior pursuant to sections 718.116 or 20.3085,
Florida Statutes.
(Emphasis added.)
The property was sold on January 28, 2013, more than a year after entry
of the final judgment....
...execution
of the subsequent mortgage." Id.
"The [l]egislature has, however, provided separately for the priority of
certain liens over the priority established under chapter 695." City of Palm Bay,
114 So.
3d at 928. For example, section
718.116(5)(a), Florida Statutes (2011), provides:
The association has a lien on each condominium parcel to
secure the payment of assessments....
...relief from judgment pursuant to rule 1.540(b) and to vacate the final judgment of
foreclosure.
Reversed and remanded with instructions.
5TheAssociation may enforce its interests in the unpaid assessments
through foreclosure of its claim of lien. § 718.116(6)(a).
- 10 -
CASANUEVA and SALARIO, JJ., Concur.
- 11 -
CopyCited 2 times | Published | United States Bankruptcy Court, S.D. Florida. | 2011 Bankr. LEXIS 2867, 55 Bankr. Ct. Dec. (CRR) 66
...This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). II. The Bankruptcy Code Preempts the Condominium Act OneWest relies on several sections in Chapter 718 of Florida Statutes, the Condominium Act. [12] The heart of OneWest's argument is Florida Statutes section 718.116(1)(b), which specifically limits a mortgagee's liability for assessments. Section 718.116(1)(b) provides that: (b) The liability of a first mortgagee or its successor or assignees who acquire title to a unit by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became due before the mortgagee's acquisition of title is limited to the lesser of: 1....
...Joinder of the association is not required if, on the date the complaint is filed, the association was dissolved or did not maintain an office or agent for service of process at a location which was known to or reasonably discoverable by the mortgagee. Fla. Stat. §
718.116(1)(b) (2010). Section
718.116(1)(b) "makes it clear that the first mortgagee is required to pay assessments only after acquiring title," and cannot be compelled to pay assessments during a protracted foreclosure proceeding. Coral Key,
32 So.3d at 196. Citing section
718.116(1)(b), at least two Florida appellate courts denied essentially the same relief sought by the Debtor in this case: an order requiring a mortgagee to pay its fair *906 share of the costs of maintaining a condominium's common elements during the pendency of a drawn-out foreclosure action. Coral Key,
32 So.3d at 196; U.S. Bank Nat'l Ass'n v. Tadmore,
23 So.3d 822 (Fla. 3d DCA 2009). OneWest asserts that section
718.116(1)(b) requires the same result in this case....
...352 (Bankr.S.D.Fla.2011) (Bankruptcy Code preempted Florida's constitutional homestead exemption); In re Old Carco LLC,
442 B.R. 196 (S.D.N.Y. 2010) (Bankruptcy Code preempted state franchise law that interfered with debtor's power to reject contracts). In this case, applying section
718.116(1)(b) would shield OneWest from being surcharged even if the requirements of § 506(c) are satisfied. The Supremacy Clause dictates a contrary result. Therefore, § 506(c) preempts Florida Statutes section
718.116(1)(b)....
...ned to a respective Unit. [5] Similarly, pursuant to the Plan, the Common Elements constitute part of the collateral securing all of the Allowed Secured Claims in the First Mortgage Classes. [6] As discussed below, OneWest relies on Florida Statutes section 718.116(1)(b) for the proposition that the first mortgagee on a condominium may not be compelled to pay assessments prior to taking title to the condominium. Neither party addressed whether the Declaration itself, which essentially incorporates section 718.116(1)(b), prevents the Debtor from seeking to compel OneWest to pay Assessments prior to OneWest's taking title to its Units....
...[13] Preemption aside, the Court notes that OneWest's reliance on sections
718.115 and
718.303 is misplaced. Essentially, OneWest argues that these sections preclude the possibility that a condominium association may recover assessments from a mortgagee. This argument is untenable considering that section
718.116(1)(b) specifically provides that a first mortgagee may be liable for assessments, albeit in the context of limiting that liability....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 4953, 2010 WL 1460264
...Tadmore,
23 So.3d 822 (Fla. 3d DCA 2009), which addressed this precise issue. In Tadmore, the court rejected the notion that equity and fairness support an order requiring a bank to pay condominium assessments while foreclosure proceedings are pending since section
718.116(1)(b), Florida Statutes (2009), makes it clear that the first mortgagee is required to pay assessments only after acquiring title, and equity follows the law....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 14056, 2011 WL 3903069
...foreclose a claim of lien. See, e.g., Berg v. Bridle Path Homeowners Ass’n,
809 So.2d 82 (Fla. 4th DCA 2002). In this case, the claim of lien that the association sought to foreclose was for two assessments from April and May 2006 plus a late fee. Section
718.116(5)(b), Florida Statutes, provides that “[t]o be valid, a claim of lien must state ......
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1993 WL 154282
...NOTES [1] On remand, it is possible that Sunfield Homes could establish that the title it received is outside the declaration of condominium. [2] The 1981 condominium statute makes it clear that a unit owner is liable for assessments "regardless of how title is acquired." Section 718.116(1)(a), Fla. Stat. (1981). The assessments cannot be avoided by waiver of the use or enjoyment of the common elements. Section 718.116(2), Fla. Stat. (1981). The declaration, under limited circumstances, can excuse a unit owner, especially the developer, from the payment of its share of the common expense. Section 718.116(8), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2014 WL 885720, 2014 Fla. App. LEXIS 3308
...of fact regarding the capacity in which Bank of America took title to a condominium unit, and that Bank of Amer *610 ica is not entitled to judgment as a matter of law on the issue of whether its liability for the assessments is limited pursuant to section
718.116, Florida Statutes. Through an amended complaint, Bank of America requested: (Count I) judgment requiring Bermuda Dunes to issue an es-toppel certificate that complies with the limited liability protection afforded under section
718.116(l)(b), Florida Statutes; (Count II) declaratory judgment as to its rights under section
718.116(l)(b), Florida Statutes; and (Count III) judgment for damages, costs, and attorney’s fees pursuant to section
718.303(l)(a), Florida Statutes....
...Plaintiff, in preparation of entering into a contract of sale for the Property as “seller” with a non-party “buyer,” requested an estoppel request from Defendant in preparation for the sale. 13. Plaintiff, as an assignee or successor of the first mortgagee of the foreclosed Property, is protected under Fla. Stat. § 718.116 (l)(b) and required to pay the Defendant the lesser of 1% of the original mortgage, or the last 12 months of unpaid common expenses and regular periodic assessments which came due or accrued before Plaintiffs acquisition of title and which were not paid by the previous owner. 14. Defendant has issued a letter demanding payment from the Plaintiff. 15. In defiance of Florida law, Defendant has refused to account for the protection provided to Plaintiff under the safe harbor provisions of Fla. Stat. § 718.116 and demanded a total amount of $17,987.84, a copy of which is attached hereto as Exhibit “E” and incorporated herein. 16. Plaintiff has provided Defendant with an explanation of the safe harbor provision of Fla. Stat. § 718.116 , and the limited liability afforded to first mort *611 gagees or their successors or assigns for past arrearages....
...ee nor the successor to the first mortgagee.” The trial court denied the motion on July 3, 2012. Thereafter, on July 5, 2012, Bermuda Dunes filed an answer and affirmative defense. As an affirmative defense, Bermuda Dunes asserted: Florida Statute § 718.116(l)(b)(l) applies solely to a first mortgagee, its successor or assignee. On December 9, 2009 BANK OF AMERICA assigned away its interest in the mortgage recorded at book 9288 page 1799 in the Orange County Official Records, therefore it no longer fall [sic] under the purview of Florida Statute § 718.116(l)(b)(l) but rather falls under the purview of Florida Statute § 718.116(l)(a)....
...ge — the first mortgagee, in this case the Plaintiff, to pursue this action through a ser-vicer or a company such as Freddie Mac or Fannie Mae. I don’t think that eliminates Bank of America’s, in this situation, right to pursue it, okay, under 718.116....
...That per Rule 1.510, the Plaintiff, is seeking a Summary Final Judgment against the Defendant. 5. There are no genuine issues of material fact in this case wherefore the only determination for the Court to make is *614 whether the Defendant has failed to comply with Florida Statute 718.116....
...Plaintiff is an assignee of the first mortgagee by virtue of an Assignment of Mortgage recorded on August 26, 2009, in Official Records Book 23410, at page 639, of the Public Records of Orange County. 3 The unpaid assessments due to Defendant is limited by Fla. Stat. § 718.116 (l)(b), to the lesser of twelve months of unpaid common expenses or one percent of the original mortgage debt....
...Title recorded on November 2, 2011 in Official Records Book 10289 at Page 2008 of the Public Records of Orange County.... 8. That Plaintiff, as a successor or as-signee of the first mortgagee of the foreclosed Property, is protected under Fla. Stat. § 718.116 (l)(b) and required to pay the Defendant the lesser of 1% of the original mortgage, or the last 12 months of unpaid common expenses and regular periodic assessments which came due or accrued before Plaintiffs acquisition of title and which were not paid by the previous owner....
...Defendant stipulated to the authority of the documents presented by the Plaintiff in support of its Motion for Summary Final Judgment. 12. This Court finds that the Plaintiff is entitled to Summary Final Judgment that is limited to the amount specified in this Judgment. (Emphasis added). The protection provided under section 718.116(l)(b)l., Florida Statutes, which limits the liability for unpaid condominium unit assessments, forms the basis for Bank of America’s amended complaint. Section 718.116(l)(b)l....
...The key is who had rights and obligations under the mortgage at the time of foreclosure, whether as a first mortgagee or as a successor or assignee. If that entity takes title to the condominium unit by the foreclosure, its liability for unpaid, past-due assessments is limited pursuant to section 718.116(l)(b)l....
...LE, N.Y. 14068-9000,” was granted the lien. The confusion in this record is compounded by the fact that the trial court’s order contains an express finding that Bank of America was an assignee of the first mortgagee and, as such, is protected by section 718.116(l)(b)....
...This is the assignment that shows Bank of America to be the assignor to Federal Home Mortgage Corporation. *616 Bank of America alternatively asserts that, even if the assignment of mortgage transferred to Federal Home Mortgage Corporation all of its rights and obligations as first mortgagee, section 718.116, Florida Statutes, did not require it to hold the mortgage at the time Federal Home Loan Mortgage Corporation initiated the foreclosure action; it was sufficient that, once upon a time, it was the first mortgagee....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 68 Collier Bankr. Cas. 2d 1717, 23 Fla. L. Weekly Fed. B 515, 2013 WL 163479, 2013 Bankr. LEXIS 245
...In this ease, a condominium association holds a lien for unpaid assessments that is secured by the debt- or’s principal residence. However, because the amount of the first mortgage exceeds the value of the property, under bankruptcy law, the condominium association’s lien is unsecured. And while Florida statutes section 718.116 does give the condominium association certain rights against the bank holding the first mortgage, those rights do not include subordination of the bank’s lien on the residence....
...re subordinate to a prior mortgage. The Court will then apply these legal principles to the facts of this case and conclude that the Debtor is entitled to strip off the assessment lien in this case. A. Florida Case Law As Modified by Florida Statute 718.116. The historical Florida case law dealing with assessment liens is now subject to section 718.116 of the Florida Statutes....
...Given this explicit language, the court concluded that it was “fair to assert the ‘first in time, first in right’ rule against [the mortgage holder], based on the Declaration which was recorded.” 13 To some extent, these principles were modified by the Legislature in 1990 and subsequent amendments by the enactment of section 718.116 dealing with assessments generally and the respective liens and priorities to which they may be accorded....
...Accordingly, section 1322(b)(2) allows a debtor to strip off a wholly unsecured lien on the debtor’s principal residence. 24 Applying this statutory analysis to the facts of this case, the Court concludes as follows. As discussed above, in the first instance, the Association’s lien rights derive from Florida case law and section 718.116, Florida Statutes....
...ion’s first mortgage is not subordinate to the Association’s lien for unpaid fees by virtue of the language contained in the Declaration of Condominium. 25 This language specifically subordinates the assessment lien to a first mortgagee. Second, section 718.116(5)(a) specifically provides the holder of a first mortgage with priority over a lien for assessments unless the mortgage is recorded after the recording of the claim of lien. Here the mortgage was recorded years before the filing of a claim of lien. The only plausible argument that the Association has to any priority with respect to its lien rights is found under section 718.116(1)....
...otice of lien provisions contained in a declaration of covenants, the acceptance of the deed manifests the intent to let the property stand as security for the obligation. Alternatively, condominium assessment liens are statutory liens arising under section 718.116, Florida Statutes....
...g. 35 The Association also argues that foreclosure of a first mortgage does not operate to extinguish a condominium association’s lien. No citation of authority is given for this proposition. And this contention is not supported by the language of section 718.116(5)(a) that makes condominium assessment liens subordinate to first mortgages of record, except in the limited instances where a claim of lien was filed prior to the mortgage being recorded....
...Clearly, in a mortgage foreclosure action, the court could enter a final foreclosure judgment dealing with these relative priorities. Of course, the condominium association would still have the right to counterclaim stating a cause of action against the mortgage holder based upon the liability established under section 718.116(l)(b) for certain assessments....
...r the limited assessments for which the mortgage holder would be liable and order these paid prior to any distribution to the mortgage holder. However, the right to be paid these assessments derives from a statutory liability under subsection (1) of 718.116, not by virtue of superior lien rights—those having been subordinated to the rights of the first mortgage holder under subsection (5)....
...ipped off. However, consistent with Judge Cristol’s well-reasoned opinion in Gonzales, 36 nothing in this opinion or in the order stripping the Association’s lien will affect the right of the Association to be paid the amounts provided for under section 718.116(l)(a) from the Credit Union if, in the future, the Credit Union acquires title to the property through foreclosure....
...Of course, the power to strip off liens is limited to liens existing on the date of the petition. It does nothing to insulate a debtor who is a unit owner for liability for assessments that come due after the date of the petition that would otherwise be owed under Florida Statute 718.116(l)(a)....
...Gersten,
381 So.2d 1344 , 1347 (Fla.1980). . Id. at 1348. . Id. . Id. . Holly Lake Ass’n v. Fed. Nat'l Mortgage Ass’n,
660 So.2d 266, 267 (Fla.1995). . Id. at 268 . . Id. at 269 . .Id. .
724 So.2d 585 (Fla. 5th DCA 1998). . Id. at 587 . . Fla. Stat. §
718.116 (5)(a). . Id. . Id. . Fla. Stat. §
718.116 (l)(a). . Fla. Stat. §
718.116 (l)(b)(l). . Fla. Stat. §
718.116 (5)(a)....
...A lien against the first mortgage holder would only arise if the mortgage holder had received title to the property at its foreclosure sale and had not paid the statutorily due amount to the association within 30 days after transfer of title. See Fla. Stat. § 718.116 (c)....
CopyCited 1 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 19275, 2014 WL 6969570
...* * ❖ This is the only communication regarding this matter that you will receive prior to the filing of a claim of lien. Any partial or lesser payment which is received after the date of this letter will be applied in accordance with Florida Statute § 718.116(3), and you will be responsible for all additional attorney’s fees and costs____Any further communication regarding this matter shall be in writing for your own protection....
...nths. This is the only communication regarding this matter that you will receive prior to the filing of a claim of lien. Any partial or lesser payment which is received after the date of this letter will be applied in accordance with Florida Statute § 718.116(3), and you will be responsible for all additional attorney’s fees and costs....
CopyCited 1 times | Published | United States Bankruptcy Court, N.D. Florida
...usal to release a lien that served a legitimate economic purpose “was a coercive attempt to enforce Plaintiffs personal obligation”) (internal quotation marks omitted). . Doc. 1, at 3. . Doc. 1-3, Exhibit I, at 6-12. . Id. at 9, 11. . Fla. Stat. § 718.116 (2014)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 18408
...for the court to order the Bank to pay monthly assessment payments to the Association. The trial court agreed. We reverse. As the Association concedes, the Bank is not contractually obligated to pay condominium maintenance fees on this unit. Nor, as section 718.116(l)(b), Florida Statutes (2009) confirms, is it legally obligated to do so before it obtains title: (b) The liability of a first mortgagee ......
...d or came due during the 6 months immediately preceding the acquisition of title ... or 2. One percent of the original mortgage debt.... See Bay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n,
895 So.2d 1197, 1197 (Fla. 3d DCA 2005) (noting that section
718.116(1) is a “safe harbor provision” that “provides a statutory cap on liability of foreclosing mortgagees for unpaid condominium assessments that become due prior to the first mortgagee’s acquisition of title pursuant to a foreclosure proceeding”)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2014 WL 3882458, 2014 Fla. App. LEXIS 12220
...declaring that no accord and satisfaction occurred when the condominium association
accepted a check that the unit owner tendered in full satisfaction of the association's
disputed claim for past due assessments and other charges. Because the circuit court
erred in relying on section 718.116(3), Florida Statutes (2011), in ruling that an accord
and satisfaction did not occur, we reverse the final summary judgment.
I....
...In its order, the
circuit court determined that the Trust was jointly and severally liable with the previous
unit owner for all amounts claimed by the Association through the date of the
foreclosure sale, less the $840 payment. The circuit court's ruling was as follows:
1. Florida Statutes Section 718.116(1)(a) provides
that a parcel owner, regardless of how his or her title to
property was acquired, including by purchase at a
foreclosure sale, is jointly and severally liable with the...
...Therefore, [the Trust]
became jointly and severally liable with the prior owner for
unpaid assessments that were due and owing to [the
Association] when [the Trust] took title to the subject
property, pursuant to Florida Statutes Section 718.116(1)(a).
3. By operation of § 718.116(3), Fla....
...Hilton Dev. Co.,
802 F. Supp. 434, 439 (N.D. Fla. 1992)
(applying Florida law). "Simply put, the [Association] cannot have [its] cake and eat it
too." Id.
-6-
The Association argues that section
718.116(3) of the Condominium Act
requires a different result. Section
718.116(3) provides as follows:
Assessments and installments on assessments which
are not paid when due bear interest at the rate provided in
the declaration, from the due date until paid....
...accord and satisfaction in favor of condominium associations when they accept
payments for assessments and related charges.
The pertinent legislative history confirms our interpretation of the statute.
The language in question was added to subsection three of section 718.116 by chapter
-7-
91-103, section 9, at 735, Laws of Florida (1991). The staff analyses for the House and
Senate explain the purpose of the amendment as follows:
Subsection (3) [of section 718.116] addresses the late fee
which is charged for unpaid assessments....
...Florida law concerning accord and satisfaction solely for the benefit of condominium
associations.
We recognize that part of the discussion in Ocean Two Condominium
Ass'n v. Kliger,
983 So. 2d 739 (Fla. 3d DCA 2008), can be read to interpret section
718.116(3) differently. We think that the Third District reached the correct result in
Kliger. However, we do not find its discussion of section
718.116(3) persuasive here for
two reasons....
...This fact is sufficient to distinguish Kliger from the case under
review.
Second, it does not appear from the discussion in Kliger that the Third
District had the benefit of the pertinent legislative history as an aid to its interpretation of
section 718.116(3) when it issued the opinion in that case....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 12740, 2016 WL 4446527
...Devo argued that the Association's acceptance of Devo's $2412
payment constituted an accord and satisfaction of that debt, pursuant to section
673.3111, Florida Statutes (2014). The Association countered that accord and
satisfaction principles were inapplicable to the collection of unpaid fees and
assessments under section
718.116(3), Florida Statutes (2014)....
...While the litigation was
pending in the trial court, this court decided St. Croix Lane Trust v. St. Croix at Pelican
Marsh Condominium Ass'n,
144 So. 3d 639 (Fla. 2d DCA 2014), review denied,
160 So.
3d 898 (Fla. 2015). In St. Croix Lane Trust, we held that section
718.116(3), the text of
which is incorporated into the Association's Declaration of Condominium (Declaration),
did not operate to limit or alter the law concerning accord and satisfaction....
...at 643.
Relying upon St. Croix Lane Trust, the trial court granted summary judgment to Devo.
During the pendency of this appeal and in the legislative session
immediately following our St Croix Lane Trust decision, the legislature passed an
amendment to section
718.116(3) expressly clarifying that section
718.116(3) applies
notwithstanding the law of accord and satisfaction under section
673.3111....
...$840 check in full
satisfaction of the more than $36,000 in various assessments and fees owed to the
condominium. St. Croix Lane Tr.,
144 So. 3d at 642. The trial court granted summary
judgment in favor of the condominium association, ruling that section
718.116(3),
Florida Statutes (2011), rendered ineffective any accord and satisfaction offered by the
trust. Id. at 641. At the time of the controversy in St. Croix Lane Trust, section
718.116(3) read, in pertinent part:
Any payment received by an association must be applied
first to any interest accrued by the association, then to any
administrative late fee, then to any costs an...
...The foregoing is applicable
notwithstanding any restrictive endorsement, designation, or
instruction placed on or accompanying a payment.
(Emphasis added.) Thus, the trial court in St. Croix Lane Trust held that when a
condominium association negotiates a check, the order of priority set out in section
718.116(3) governs how the check must be applied to amounts due, irrespective of the
law of accord and satisfaction.
-4-
On appeal, this court disagreed, holding that nothing in section
718.116(3)'s legislative history revealed any intention to make the accord and
satisfaction principles set forth in section
673.3111 inapplicable to condominium
associations....
...The Association pointed to
paragraph 13.10 of its Declaration and argued that St. Croix Lane Trust did not apply
because it concerned statutory interpretation, whereas the litigation concerned
contractual interpretation. Paragraph 13.10, which tracks the statutory language of
section 718.116(3), reads:
13.10 Application of Payments....
...endorsement, designation or instruction placed on or
accompanying a payment.
(Emphasis added.) The Association argued that this contractual language precluded
accord and satisfaction, even though St. Croix Lane Trust held that the same language
in section 718.116(3) had no such effect. In the alternative, counsel for the Association
alerted the trial court that the legislature was considering an amendment to section
718.116(3)....
...e. After
the hearing, the trial court granted summary judgment to Devo on the grounds that "a
full accord and satisfaction took place pursuant to Florida Statutes."
-6-
D. The Clarifying Amendment to Section 718.116(3)
On June 2, 2015, the clarifying amendment, which the Association had
pointed out to the trial court was pending in the legislature, was approved by the
governor after passing both houses of the legislature....
...2015-97, § 9, at 18-19,
Laws of Fla. The approval occurred almost one month after Devo filed its notice of
appeal, two months after the trial court had granted summary judgment, and ten months
after this court decided St. Croix Lane Trust. As amended, the pertinent part of section
718.116(3) now reads as follows:
(3) Any payment received by an association must be applied
first to any interest accrued by the association, then to any
administrative late fee, then to any costs a...
...appeal, the Association's position on appeal shifted from its primary position in the trial
court. Whereas the Association once argued that the statutory language should not
trump the language of its Declaration, it now argues that the recent statutory
amendment to section 718.116(3) clarified the legislature's original intent and should
therefore result in reversal....
...Clause); Metropolitan Dade County, 737 So. 2d at 502-03 (treating the application of
controversy rule as distinct from the retroactive application of an amended statute). The
Association asks us to revisit our prior construction of the pre-amended section
718.116(3), not to retroactively apply a newer version of section 718.116(3)....
...But in the case
before us, the legislature did not do "nothing." It instead passed legislation effectuating
its intent shortly after our decision in St. Croix Lane Trust. And, to the Association's
credit, it brought to the trial court's attention that there was legislation in the works which
would amend section
718.116(3).
That is, upon this court's decision in St. Croix Lane Trust, the bill
amending section
718.116(3) was introduced into the legislature six months later and,
- 10 -
upon passage, received final gubernatorial approval. See Bill History, CS/CS/HB 0791
(2015), https://www.flsenate.gov/Session/Bill/2015/791/?Tab=BillHistory (last visited
June 23, 2016). The plain language of the amended section
718.116(3) states that the
order of priority for delinquent payments laid out in the statute "is applicable
notwithstanding [section]
673.3111" or "any purported accord and satisfaction." The
amended section
718.116(3) then states, "The preceding sentence is intended to clarify
existing law."1
It is clear to us that the legislature amended section
718.116(3) in
response to a recent controversy arising out of our construction of that statute in St.
Croix Lane Trust, and our disavowal in St....
...Hence, we believe it is proper to reexamine St. Croix Lane Trust in light of
1
The legislative staff analyses, for those who choose to rely on them,
highlight that the purpose of the amendment was to apply the payment structure in
section 718.116(3) "in spite of" any accord and satisfaction, and that this amendment
was "intended to clarify existing law." See, e.g., Fla....
...2008)
(citing Bautista v. State,
863 So. 2d 1180, 1185 (Fla. 2003)).
C. A Reexamination of St. Croix Lane Trust
Having distinguished retroactive application from the recent controversy
rule and having explained why the recent legislative clarification to section
718.116(3)
permits us to reexamine our precedent, we now must revisit our St. Croix Lane Trust
decision. We do so with the benefit of hindsight and the legislature's recent clarifying
amendment.
The opinion in St. Croix Lane Trust sought to determine whether the
language in section
718.116(3) concerning a "restrictive endorsement, designation or
instruction placed on or accompanying a payment" meant that the payment procedure
for delinquent assessments in the statute applied despite accord and satisfaction.
144
So. 3d at 642. Our analysis of this question in St. Croix Lane Trust contains an inquiry
into legislative intent principally guided by section
718.116(3)'s legislative history. Id. at
643. Finding no indication in the legislative materials that section
718.116(3) was
meant to abrogate accord and satisfaction, we decided that it was not meant to do so.
"To discern legislative intent, a court must look first and foremost at the
actual language used in the statute." Larimore,
2 So. 3d at 106 (emphasis added)
(citing Bautista,
863 So. 2d at 1185). As previously noted, the version of section
718.116(3) analyzed by the St....
...1988); Hixson v. Cox, 633 S.W.2d 330,
331 (Tex. App. 1982). Our interpretation of "restrictive endorsement," guided by the
legislature's recent clarifying amendment, leaves only one possible outcome. The
legislature abrogated our interpretation of section 718.116(3) in St....
...Pennzoil Co. v. F.E.R.C.,
645 F.2d 360, 386 n.54
(5th Cir. 1981) (citing Skelly Oil Co. v. Phillips Petroleum Co.,
339 U.S. 667, 678
(1950)). In the absence of evidence that the Association and Devo intended to execute
a contract beyond the scope of section
718.116(3), it is proper to look to evidence of the
meaning of section
718.116(3) in seeking to determine the meaning of a contract which
mimics that statute....
...4th DCA 2005) ("[W]hen parties
contract upon a matter which is the subject of statutory regulation, the parties are
presumed to have entered into their agreement with reference to such statute, which
becomes a part of the contract, unless the contract discloses a contrary intention.").
Section 718.116(3), and by extension paragraph 13.10 of the Declaration,
is not impacted by Devo's offer of accord and satisfaction. As evidenced by the
legislature's clarifying amendment, it clearly intended for section 718.116(3) to function
this way all along....
...Accordingly, the Association's depositing Devo's check did not
provide grounds for granting summary judgment in favor of Devo.
- 14 -
IV. CONCLUSION
Guided by the legislature's recent clarification of section 718.116(3), our
preceding analysis leads us to reverse the decision of the trial court and conclude that
our prior interpretation of section 718.116(3)'s holding in St....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2013 WL 4081702, 2013 Fla. App. LEXIS 12725
...condominium units at foreclosure sales. The dispute underlying the Bank’s claims for attorney’s fees concerned the extent of its liability to the Association for unpaid assessments after purchasing the condominium units at the foreclosure sales. Section 718.116(l)(b), Florida Statutes (2012), capped the Bank’s liability for condominium assessments at no more than one percent of the original mortgage debt....
...See Ganz,
605 So.2d at 872 ; Cooper,
16 So.3d at 159 . Accordingly, the Bank was entitled to its attorney’s fees incurred in successfully prosecuting its claim that the Association’s assessments were capped at the statutory máximums mandated by section
718.116(l)(b)....
CopyPublished | Florida 2nd District Court of Appeal | 2003 Fla. App. LEXIS 13938, 2003 WL 22103529
...(Developer) was the developer of a twenty-building, eighty-unit condominium project in Manatee County that is now operated by Fairway Gardens at Tara Condominium Association, Inc. (Association). Prior to turnover of control of the association, the Developer was operating under the developer guarantee provision of section 718.116(9)(a)(2), Florida Statutes (1995), which states in relevant part: A developer ......
...e the units came into existence when the declaration was recorded and the Developer did not vote to waive or reduce the reserves. Finally, the Association acknowledged that the condominium was being operated under a developer guarantee authorized by section 718.116(9)(a)(2) and asserted that the Developer’s obligation under this provision included funding reserves for un-built units because maintenance reserves are a common expense incurred upon the recording of the declaration....
CopyPublished | Florida 4th District Court of Appeal
...“The recording of the mortgage affords notice thereof to all
concerned, and gives it priority over all liens accruing thereafter.” People’s
Bank of Jacksonville v. Arbuckle,
90 So. 458, 460 (Fla. 1921); see also Bank
of Am., N.A. v. Kipps Colony II Condo. Ass’n, Inc.,
201 So. 3d 670, 675 (Fla.
2d DCA 2016) (citing §
718.116(5)(a), Florida Statutes, to find that a bank’s
first mortgage was superior to a condominium association’s liens and
voiding the trial court’s judgment stating otherwise).
The mortgage in the instant case was recorded over ten years before the
circuit court’s imposition of the equitable lien. Accordingly, the mortgage
has priority over the equitable lien.
The Association’s reliance on section
718.116(5)(a), Florida Statutes
(2020), is misplaced....
CopyPublished | Florida 3rd District Court of Appeal
...affected three condominium units recently subject to FNMA foreclosure proceedings, and to determine the amount owed by FNMA to Cedar Woods Homes Condominium Association, Inc., the appellee ("Association"), under the so-called "Safe Harbor Statute," section 718.116(b), Florida Statutes (2014)....
...tion reported that the Association appeared to be insolvent and had received final notices that water, common area electricity, and garbage service would soon be terminated. The Association's petition was based on a provision of the Condominium Act, section 718.116(6)(c), Florida Statutes (2009): If the unit is rented or leased during the pendency of the foreclosure action, the association is entitled to the appointment of a receiver to collect the rent....
...Corp. v. Vitale ,
566 So.2d 1343 , 1344 (Fla. 3d DCA 1990). As already noted, the Condominium Act expressly authorizes the appointment of a receiver to collect rent payable by the occupant of a unit during the pendency of "the foreclosure action." §
718.116(6)(c). When read in context, however, this refers to the foreclosure of a condominium association's lien on a unit "to secure the payment of assessments," section
718.116(5)(a) ; section
718.116(6)(a) authorizes an action in the association's name "to foreclose a lien for assessments in the manner a mortgage of real property is foreclosed." So the statutory authority in the Condominium Act for a receiver relates to a unit whi...
...n Association lien. We need not reach the validity of the receivership orders insofar as they purported to affect units other than the three units involved in this appeal. This power, whether based on (1) the court's statutory authority conferred by section 718.116(6) of the Condominium Act, or (2) the court's inherent equitable authority, was limited in scope to the owners and occupants of the units subject to an Association lien for unpaid assessments....
...consideration and without notice"). City of Palm Bay v. Wells Fargo Bank, N.A. ,
114 So.3d 924 , 927 (Fla. 2013). Applying these statutes and the particular provision governing liens for condominium assessments vis-a-vis first mortgages of record ( section
718.116(5)(a) ), the FNMA mortgage liens enjoyed priority over the condominium assessment liens, save for (1) those arrearage amounts for which the mortgage lenders became responsible under the Safe Harbor Statute, and (2) duly-imposed Associ...
...MA's certificate of title and continuing through FNMA's subsequent conveyance of title, if that has occurred. The Receiver's compensation, attorney's fees, and costs, are payable by the non-prevailing party if the receivership was commenced under subsection 718.116(6)....
...One can posit circumstances in which, for example, a foreclosing lender lacking a security interest in rents paid by a non-borrower tenant during the foreclosure case nevertheless received those rents-in derogation of the right of a court-appointed receiver designated under section 718.116(6)(c) to collect those rents....
...ed by the association ," and (b) one percent of the original mortgage debt. (Emphasis provided). The "one percent" alternative would be considered here because the foreclosing lender "joined the association as a defendant in the foreclosure action." § 718.116(1)(b) 1.a., 1.b....
CopyPublished | Florida 3rd District Court of Appeal
...ecently subject to
FNMA foreclosure proceedings, and to determine the amount owed by FNMA to
Cedar Woods Homes Condominium Association, Inc., the appellee
(“Association”), under the so-called “Safe Harbor Statute,” section 718.116(b),
Florida Statutes (2014)....
...d
that the Association appeared to be insolvent and had received final notices that
water, common area electricity, and garbage service would soon be terminated.
The Association’s petition was based on a provision of the Condominium
Act, section 718.116(6)(c), Florida Statutes (2009):
If the unit is rented or leased during the pendency of the foreclosure
action, the association is entitled to the appointment of a receiver to
collect the rent....
...Vitale,
566 So. 2d 1343, 1344 (Fla. 3d DCA 1990).
As already noted, the Condominium Act expressly authorizes the
appointment of a receiver to collect rent payable by the occupant of a unit during
the pendency of “the foreclosure action.” §
718.116(6)(c). When read in context,
however, this refers to the foreclosure of a condominium association’s lien on a
unit “to secure the payment of assessments,” section
718.116(5)(a); section
718.116(6)(a) authorizes an action in the association’s name “to foreclose a lien for
assessments in the manner a mortgage of real property is foreclosed.”
So the statutory authority in the Condominium Act for a receiver relate...
...subject to an Association lien. We need not reach the validity of the receivership
orders insofar as they purported to affect units other than the three units involved
in this appeal.
This power, whether based on (1) the court’s statutory authority conferred
by section 718.116(6) of the Condominium Act, or (2) the court’s inherent
equitable authority, was limited in scope to the owners and occupants of the units
subject to an Association lien for unpaid assessments....
...Wells Fargo Bank, N.A.,
114 So. 3d 924, 927 (Fla. 2013).
Applying these statutes and the particular provision governing liens for
condominium assessments vis-a-vis first mortgages of record (section
10
718.116(5)(a)), the FNMA mortgage liens enjoyed priority over the condominium
assessment liens, save for (1) those arrearage amounts for which the mortgage
lenders became responsible under the Safe Harbor Statute, and (2) duly-imposed
Association...
...of
title and continuing through FNMA’s subsequent conveyance of title, if that has
occurred.
The Receiver’s compensation, attorney’s fees, and costs, are payable by the
non-prevailing party if the receivership was commenced under subsection
718.116(6)....
...3 One can posit circumstances in which, for example, a foreclosing lender lacking
a security interest in rents paid by a non-borrower tenant during the foreclosure
case nevertheless received those rents—in derogation of the right of a court-
appointed receiver designated under section 718.116(6)(c) to collect those rents.
But no such facts are apparent in this record, and we therefore decline to address
the merits or outcome of such a hypothetical case.
4 The Safe Harbor Statute is clear that the liability of FNMA is for...
...association,” and (b) one
percent of the original mortgage debt. (Emphasis provided). The “one percent”
alternative would be considered here because the foreclosing lender “joined the
association as a defendant in the foreclosure action.” § 718.116(1)(b)1.a., 1.b....
CopyPublished | Florida 1st District Court of Appeal
...(2017) (providing that funds for payment of
common expenses be collected by assessments on units in
percentages set forth in condominium declaration). Even if the
owner pays the assessments at a later time, the owner incurred
the obligation to pay during the purchase transaction. See §
718.116(1)(a), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 15320, 2015 WL 6023164
...(“Legacy Parc”). This case involves a complaint for declaratory and injunctive relief filed by Fannie Mae to clarify the amount of condominium assessments it owes Legacy Parc. Fannie Mae argued that the amount was limited under safe harbor provisions in section 718.116, Florida Statutes (2014), and Legacy Parc’s Declaration of Condominium (“the Declaration”)....
...We accordingly reverse the or *94 der and remand the case for further proceedings. It was error for the trial court to require Fannie Mae to attach more documents to survive the motion to dismiss. Its cause of action was based not upon the underlying foreclosure suit but upon section 718.116 and the Declaration....
...ovision. Beltway Capital, LLC v. Greens COA, Inc.,
153 So.3d 330, 331 (Fla. 5th DCA 2014). Fannie Mae alleged in its complaint that it purchased the note and first-priority mortgage at issue and was therefore entitled to the safe harbor provision of section
718.116 and the Declaration....
CopyPublished | Florida 3rd District Court of Appeal | 1993 WL 406628
...ent. We reverse. Appellee Ocean Village Condominium Association, Inc., filed a complaint in circuit court against Brooks, the owner of a condominium unit at Ocean Village. Count I sought to foreclose a claim of lien for condominium assessments under section 718.116, Florida Statutes (1991)....
CopyPublished | District Court of Appeal of Florida
II). Both counts were brought pursuant to section
718.116, Florida Statutes, and the Declaration. At
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 17369
...Greenfield, of
Aldridge & Pite, LLP, Boca Raton, for
Appellee.
PER CURIAM.
Village Square Condominium Association, Inc. (“Village Square”) appeals from a
final summary judgment finding that U.S. Bank National Association (“U.S. Bank”)
qualified for safe harbor under section 718.116(1)(b), Florida Statutes (2014), which limits
a first mortgagee’s liability for past-due condo association assessments....
...2d DCA Oct. 5, 2016). We agree with Judge Black’s
well-reasoned opinion, which concluded that ownership of the note and mortgage is not
required in order for a foreclosing party to limit its liability pursuant to the safe harbor
provisions of section 718.116(1)(b), Florida Statutes (2014).
AFFIRMED.
LAWSON, C.J., ORFINGER and EVANDER, JJ., concur.
2
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 17315, 2015 WL 7273417
...PLCA Condominium
Association (“Association”) was named as a defendant in the foreclosure
action. Five months after the final judgment, AmTrust filed a motion to
determine the amounts due to the Association. AmTrust argued that it
was entitled to the safe harbor provision of section 718.116(1)(b), Florida
Statutes (2013), which limits liability for past due assessments.1 The
1 Specifically, section 718.116(1)(b) provides:
(b) 1....
CopyPublished | Florida 4th District Court of Appeal
...proper procedure is for a defendant to move to quash service”).
Gateland also argues the trial court erred in dismissing based on
Gateland’s purported failure to satisfy statutory conditions precedent to
2
suit found in sections
718.116(5)-(6) and
718.121(4), Florida Statutes
(2020). In a written order of dismissal, the court ruled as follows:
The Condominium Act sets out preconditions that must be
satisfied before the Association can file to foreclose on Holly.
See Florida Statute
718.121(4) and
718.116(5) and subsection
(6)....
....
preconditions to foreclosure by (1) failing to send Holly a
notice of intent to file a claim of lien, (2) failing to record a
claim of lien against Holly, and (3) failing to send Holly a notice
of intent to foreclose a claim of lien.
This was error. Section 718.116(6) does not provide for a condition
precedent to the filing of a foreclosure suit. Rather, it provides for written
notice of intent to foreclose on a lien for unpaid assessments before a
foreclosure judgment may be entered. See § 718.116(6)(b), Fla....
...Further, because Gateland’s suit also sought injunctive relief and
damages based on a breach of the condominium’s governing documents,
the trial court erred in dismissing the entire suit based on a finding that
applied only to Gateland’s request for a foreclosure judgment.
Additionally, section
718.116 does not contain an absolute requirement
of pre-lien notice or recordation of a claim of lien. Instead, section
718.116(5)(a) provides that “[t]he association has a lien on each
condominium parcel to secure the payment of assessments” and that “the
lien is effective from and shall relate back to the recording of the original
declaration of condominium.” As we explained in Calendar v. Stonebridge
Gardens Section III Condo. Ass’n,
234 So. 3d 18 (Fla. 4th DCA 2017):
Section
718.116 clearly states that an association has a lien
on each parcel, and implies that a claim of lien against a unit
owner for assessments becomes necessary only in cases
where a mortgagee is also asserting a claim:...
...However,
as to first mortgages of record, the lien is effective from
and after recording of a claim of lien in the public records
of the county in which the condominium parcel is
3
located.
§ 718.116, Fla. Stat. Consequently, under section 718.116,
where a declaration of condominium is recorded, such as in
the instant case, recording a claim of lien is not an absolute
prerequisite to the enforcement of a lien for unpaid
assessments....
CopyAgo (Fla. Att'y Gen. 1991).
Published | Florida Attorney General Reports
persons described in s.
197.522(1)(a), F.S. 2 Section
718.116(5)(a), F.S. (1990 Supp.), provides that the
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 1221, 1986 Fla. App. LEXIS 8077
...nd the sale of her unit pursuant to the foreclosure. Although appellee contends to the contrary, we find the present record insufficient to demonstrate legal notice to the appellant of the foreclosure proceedings or compliance with the provisions of Section 718.116, Florida Statutes (1983) governing the establishment and foreclosure of assessment liens against condominium property....
CopyPublished | Florida 4th District Court of Appeal | 1994 Fla. App. LEXIS 4955
...s amortized for five years. Thus, very specific language was required to defeat the mortgagee. The language in this case gives the association a right to a lien only “[i]n the event the monthly mobile type home site charge is not paid when due.” Section 718.116(l)(a), Florida Statutes (1993), which governs only condominium assessments, limits the liability of the first mortgagee who acquires title by foreclosure or by deed to the unpaid assessments up to six months or one percent of the original mortgage debt....
CopyPublished | Florida 3rd District Court of Appeal | 2014 WL 853846, 2014 Fla. App. LEXIS 3057
...tgage payments. This delinquency gave both the Association and the Bank the right to foreclose on the property— with the Bank’s superior rights stemming from the note and mortgage, and the Association’s secondary rights statutorily provided in section 718.116, Florida Statutes (2009)....
...After Aventura Management acquired the Unit, Spiaggia attempted to recover from Aventura Management the past-due assessments, late fees, and interest that had accrued dating back to the original owner’s default. Spiaggia argued that Aventura Management was liable under section 718.116(l)(a), which provides in pertinent part: A unit owner, regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments which come due while he or she is the unit owner. Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title, (emphasis added). The trial court interpreted section 718.116- as providing that Aventura Management, as the current owner, was jointly and severally liable with the original owner, but not with Spiaggia, for the past-due assessments and ordered Aventura Management to pay the full amount of the unpaid assessments....
CopyPublished | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 689, 1987 Fla. App. LEXIS 7078
affirmative defense — immunity pursuant to section
718.116(8)(a) and (b), Florida Statutes (1983), and
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 1983 Bankr. LEXIS 6505
...inst said property, and said liens were transferred to the proceeds of the sales upon the payment of the proceeds to the Debtor. 4. The Defendant CAPTAIN’S PARADISE CONDOMINIUM ASSOCIATION, hereafter “ASSOCIATION”, pursuant to Florida Statutes Section 718.116, claims a lien or interest in the proceeds of sale of the real property to secure payment of delinquent and unpaid maintenance assessments....
...ssion under Section 547 of the Bankruptcy Code. Condominium Association 6. The ASSOCIATION has and is entitled to the rights of a condominium association pursuant to Florida Statute Section
718.117, subject to the rights of the first mortgagee under Section
718.116(6) and, accordingly, has a lien upon the proceeds of sale in the hands of the Debtor-in-Possession resulting from the sale of Apartment Unit 502....
...rded in Official Records Book 8924, at Page 88, of the Public Records of Broward County, Florida. 2. The Court will determine the extent to which interest on said sum is payable and assess a reasonable attorney’s fee as provided in Florida Statute Section 718.116 upon proper application....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 4889
...3900
Condominium Ass’n,
670 So. 2d 1182 (Fla. 4th DCA 1996), for the proposition
that they are required to apply payments in accordance with the formula set forth in
subsection (3)(b), adds nothing to their argument. St. Croix and Ward addressed
section
718.116(3), Florida Statutes, the section of the condominium association
statutes that is analogous to section
720.3085(3)(b)....
CopyPublished | Florida 4th District Court of Appeal | 1998 Fla. App. LEXIS 2918, 1998 WL 130164
PER CURIAM. We hold that section 718.116, Florida Statutes (1993), limits the mortgagee’s liability in this ease to the lesser of six months of unpaid assessments or one per cent of the original mortgage debt....
...f a unit. The trial court expressed concern that a delinquent owner could set up a sham sale, foreclose, and then use the statute to wipe out a liability. Such an owner would remain liable for the assessments as a “grantor” within the meaning of section
718.116(l)(a); in addition, this type of conduct would run afoul of the unclean hands doctrine in a foreclosure case, since foreclosure is an equitable remedy. See Ocean View Towers, Inc. v. First Fidelity Sav. & Loan Ass’n,
521 So.2d 325, 326 (Fla. 4th DCA 1988). Application of the statute does not amount to a constitutional violation. Under section
718.116(5)(a), an association’s lien for unpaid assessments is effective as to a first mortgagee “from and after recording of a claim of hen.” The hen in this case was recorded approximately three months after appellant obtained title....
CopyPublished | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 708, 1986 Fla. App. LEXIS 6979
with failure to pay assessments required by section
718.116(1), Florida Statutes (1981). The Division and
CopyPublished | Florida 3rd District Court of Appeal | 1996 Fla. App. LEXIS 2309, 1996 WL 106439
...cretion where there is no legal or equitable basis for it, citing Morgan v. Kelly,
642 So.2d 1117, 1118 (Fla. 3d DCA 1994). We need not decide whether the law regarding deficiency judgments in mortgage foreclosure actions is applicable here, because section
718.116(1)(a), Florida Statutes (1993) provides that a unit owner is liable for all assessments, and this declaration of condominium also makes this unit owner liable....
CopyPublished | Florida 4th District Court of Appeal
...original declaration of the community was recorded. However,
as to first mortgages of record, the lien is effective from and
after recording of a claim of lien in the public records of the
county in which the parcel is located.
Id.; see also § 718.116(5)(a), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 1995 Fla. App. LEXIS 6636, 1995 WL 366687
...
649 So.2d at 231 ; see also
625 So.2d at 112 (leaving open Brooks’ alternative arguments for relief). Brooks is the owner of a condominium unit at Ocean Village Condominium. Appellee Ocean Village Condominium Association, Inc., filed a complaint to foreclose a claim of lien for condominium assessments under section
718.116, Florida Statutes (1991)....
...However, the parties' affidavits are in conflict regarding the length of the extension of time. We need not explore that issue in order to resolve this appeal. . Brooks has asserted in this court that the notice of intent to foreclose the lien was deficient under subsection 718.116(6), Florida Statutes (1991)....
CopyPublished | Florida 4th District Court of Appeal | 2014 WL 2589046, 2014 Fla. App. LEXIS 8855
...court’s order of final summary judgment of foreclosure on the unit for unpaid condominium assessments. Appellant’s first two *987 challenges concern the sufficiency of the service by publication and the content of the amended claim of lien under section 718.116(5)(b), Florida Statutes (2012)....
...“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P.,
760 So.2d 126, 130 (Fla.2000); Fla. R. Civ. P. 1.510(c). Section
718.116(5)(b), Florida Statutes, states that a claim of lien by a condominium association for unpaid assessments “secures all unpaid assessments that are due and that may accrue after the claim of lien is recorded and through the entry of final judgment.” (emphasis added)....
CopyPublished | Florida 3rd District Court of Appeal | 2008 Fla. App. LEXIS 8447, 2008 WL 2356852
...the payments will be applied on account, without prejudice to the association’s and unit owner’s respective positions, even if the unit owners place a “restrictive endorsement, designation, or instruction ... on or accompanying the payment.” § 718.116(3), Fla....
...eferenced matter.” 4 In this case, a non-lawyer did, in the name of a law firm, precisely what no lawyer is supposed to do — reject a payment tendered to reduce the amount in controversy in a collection action — despite the clear protection of section 718.116(3) 5 and the well-known duty to mitigate....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 8288, 2016 WL 3066374
...Agreeing with
the trial court that FNS6 is entitled to recover from Bona Vista the amounts FNS6
has been asked to pay based on the parties’ joint and several liability for unpaid
assessments under the prior version of the statute at issue here, we affirm. See §
718.116(1)(a), Fla....
...ona
Vista held title to the unit, that is, from July 29, 2011, when Bona Vista took title
through February 13, 2014, when FNS6 took title.1 FNS6 then sought declaratory
relief in the court below seeking a determination as to its obligations under section
718.116(1)(a) of the Florida Statutes (2013) to pay condominium assessments
which came due during the period of time that Bona Vista held title to the
condominium.2
Following a hearing on the matter, the court below determined that...
...because even though Bona Vista and FNS6 were “jointly and severally [liable]” for
these assessments, FNS6’s right to recover any amounts it paid to or on behalf of
Bona Vista made FNS6’s obligation “basically a wash.” We agree.
The 2013 version of section 718.116(1)(a) provides that while the current
owner (here FNS6) and immediate-prior owner (here Bona Vista) are jointly and
severally liable for unpaid assessments which came due while the immediate-prior
1 There is no dispute that FNS6 is responsible for all assessments that came due
after it took title. And, Bona Vista agrees that FNS6 cannot be assessed for
delinquent assessments that came due during Brito’s ownership.
2 FNS6 and Bona Vista agree that the 2013 version of section 718.116(1)(a) applies
to this case.
3
owner (Bona Vista) owned or held title to the condominium unit at issue, the
obligation to pay such assessments is without prejudice to the right of the current...
...Additionally, a unit owner is jointly and
severally liable with the previous owner for all unpaid assessments
that came due up to the time of transfer of title. This liability is
without prejudice to any right the owner may have to recover from the
previous owner the amounts paid by the owner.
§ 718.116(1)(a), Fla....
...Spiaggia Ocean Condominium Ass’n, Inc.,
149
So. 3d 690, 693 (Fla. 3d DCA 2014) (Spiaggia II), and Park West Professional
Center Condominium Ass’n, Inc. v. Londono,
130 So. 3d 711, 712 (Fla. 3d DCA
2013) (quoting Spiaggia I,
149 So. 3d at 639) make clear, under the 2013 version
of section
718.116(1)(a) which applies here: (1) a condominium association is a
“unit owner” as that term is used in section
718.116(1)(a), even if that association
has secured title or become an owner by foreclosing its own assessment lien3; (2) a
3In 2014, the Florida Legislature amended section
718.116(1)(a) so that “[f]or the
purposes of this paragraph, the term ‘previous owner’ does not include an
association that acquires title to a delinquent property through foreclosure or by
4
c...
...Bona Vista held title; and
(5) FNS6 is solely responsible for all assessments which have come due since it
took title.
deed in lieu of foreclosure.” Ch. 2014-114, § 10, Laws of Fla.
5
Thus, as section 718.116(1)(a) confirms, because Bona Vista and FNS6 are
jointly and severally liable for the assessments that came due during Bona Vista’s
ownership, roughly $21,000, Bona Vista may well recover that sum from FNS6.
However, this same provision also provides that FNS6 has the right to promptly
seek to recover said amounts from Bona Vista. See § 718.116(1)(a), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2001 Fla. App. LEXIS 9166, 2001 WL 746733
...As a result of Defendant's actions, the Plaintiffs have had to retain an attorney *1159 and is obligated for payment of a reasonable attorney's fee and costs. 40. The Plaintiffs are entitled to the recovery of attorney’s fees and costs as the prevailing party pursuant to Florida Statute § 718.116 and the Declaration of Condominium.
CopyPublished | District Court, M.D. Florida | 2011 U.S. Dist. LEXIS 82225, 2011 WL 3169486
...The Condominium Act plainly states not only that an association must maintain the common elements but states also that "[t]he liability for assessments may not be avoided by waiver of the use or enjoyment of any common elements or by abandonment of the unit for which the assessments are made." Fla. Stat. § 718.116(2). In this action, a majority of the members effectively attempted to avoid liability for assessment by waiving en masse the "enjoyment of any common elements" (which eventually deteriorated beyond use). This attempt violated en masse Section 718.116(2)....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 8895, 1999 WL 445687
...The Association sought alternate remedies in its complaint, either foreclosure of the lien it had filed against each unit for the unpaid assessments, or a money judgment. There is nothing unusual in this methodology and chapter 718, the Condominium Act, contemplates this very procedure. See § 718.116(6)(a), Fla....
...that the Association might elect to seek foreclosure as to some units and a money judgment as to others, such relief is certainly not precluded by the language of the pleadings, inasmuch as the two avenues of relief are recognized alternatives. See § 718.116(6)(a); see also Mellor v....
CopyPublished | Florida 1st District Court of Appeal
...appeals the trial court’s final summary judgment in favor of
Appellee, FLA Trust Services LLC, and raises three issues on
appeal. We affirm without discussion as to the first and third
issues. Appellant argues in the second issue that the trial court
erred in interpreting section 718.116(1)(a), Florida Statutes
(2017), to limit the present condominium owner’s joint and several
liability to assessments and related expenses that came due during
the immediate prior owner’s ownership....
...int for lien
foreclosure and damages. The Association alleged that it levied
assessments against the property for common expenses during the
ownership of FLA Trust and any former owners with whom FLA
Trust is jointly and severally liable pursuant to section 718.116,
Florida Statutes, and that FLA Trust has failed to pay
assessments and related expenses that have come due since
August 15, 2015....
...tted
that assessments have come due during its ownership of the
property, which are due and owing to the Association, but argued
that the Association has demanded payment to which it is not
entitled. Specifically, FLA Trust asserted that pursuant to section
718.116(1)(a), Florida Statutes, the present owner shares joint and
several liability with only the previous owner and, therefore, FLA
Trust’s joint and several liability is limited to the assessments that
came due during Homes HQ’s ownership of the property from June
13, 2016, through July 26, 2016....
...the Original Owners for all unpaid assessments that came due
from July 25, 2007, through June 13, 2016; maintained that FLA
Trust is not responsible for assessments that came due during the
2
Original Owners’ ownership because section 718.116(1)(a) limits
such liability to “the previous owner”; and sought a judgment
declaring who is responsible for the assessments and related
expenses incurred during the Original Owners’ ownership.
The Association and FLA Trust filed competing motions for
final summary judgment, disputing whether pursuant to section
718.116(1)(a) FLA Trust’s joint and several liability is limited to
assessments that came due during Homes HQ’s ownership or also
encompasses assessments that came due during the Original
Owners’ ownership....
...Much of the
discussion at the hearing focused on the Third District’s Aventura
Management, LLC v. Spiaggia Ocean Condominium Association,
Inc.,
105 So. 3d 637 (Fla. 3d DCA 2013), line of cases interpreting
the 2013 version of the statute. The trial court ultimately
interpreted section
718.116(1)(a) as limiting FLA Trust’s joint and
several liability to assessments that came due during the
immediate prior owner’s ownership....
...v.
FINR II, Inc.,
221 So. 3d 1162, 1165 (Fla. 2017). Additionally,
“amendments enacted shortly after controversies as to the
interpretation of the original act arise may be considered useful
guidance for the original intent.” Id. at 1166-67.
Section
718.116(1)(a), Florida Statutes (2017), which is part of
the Condominium Act, provides as follows:
A unit owner, regardless of how his or her title has been
acquired, including by purchase at a foreclosure sale or
by deed in lieu...
...foreclosure or by deed in lieu of foreclosure.
4
(Emphasis added.) The last two sentences of the statute were
enacted on July 1, 2014. See Ch. 2014-133, § 10, Laws of Fla.
The issue before us is whether, pursuant to section
718.116(1)(a), the present owner of a condominium unit is jointly
and severally liable with the previous owner for unpaid
assessments that came due during the ownership of both the
previous owner and the original owner (as contended by the
As...
...me due during
the ownership of the previous owner (as argued by FLA Trust and
found by the trial court).
The Third District has addressed this issue in a series of
cases—in which the association was the previous owner and the
2013 version of section 718.116(1)(a) applied—and held that (1) a
condominium association is a unit owner within the meaning of
the statute, and (2) a present owner is solely responsible for
assessments coming due during its ownership and is jointly and
severally...
...Spiaggia
Ocean Condo. Ass'n., Inc.,
149 So. 3d 690, 692-93 (Fla. 3d DCA
2014); Park W. Prof'l Ctr. Condo. Ass'n, Inc. v. Londono,
130 So.
3d 711, 712 (Fla. 3d DCA 2013); Aventura Mgmt., LLC,
105 So. 3d
at 637. Shortly after the Third District interpreted section
718.116(1)(a), the Legislature amended the statute by adding the
last two sentences, whereby it expressly excluded the association
from the term “previous owner.” Before we proceed to interpret
the 2017 version of section
718.116(1)(a), which applies in this
case, we note that the fact that the association was an intervening
owner in the foregoing cases does not appear to have had a bearing
on the Third District’s analysis.
The parties’ primary focus...
...3d DCA 2014), Park West Professional Center Condominium
Association, Inc. v. Londono,
130 So. 3d 711 (Fla. 3d DCA 2013),
and Aventura Management, LLC v. Spiaggia Ocean Condominium
Association, Inc.,
105 So. 3d 637 (Fla. 3d DCA 2013), to the extent
they limit the current owner’s joint and several liability pursuant
to section
718.116(1)(a) to unpaid assessments that came due
during the ownership of the immediate prior owner, and not the
original owner.
REVERSED; CONFLICT CERTIFIED.
B.L....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 202, 2016 WL 72585
...and Nationstar Mortgage, LLC, the bank
that purchased the subject property at the foreclosure sale. The issue is
whether the trial court retained jurisdiction to determine the amount due
to Meadows for unpaid assessments under the Condominium Act. See §
718.116, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 42
Levine, J. In this case, the trial court found that a servicer, which is a company that is authorized to collect payments under a loan, was entitled to the benefit of the safe harbor provision of section 718.116(l)(b), Florida Statutes (2015)....
...Thereafter, a dispute arose between Freddie Mac and the San Matera the Gardens Condominium Association regarding Freddie Mac’s liability for past unpaid assessments. The trial court entered summary judgment in favor of Freddie Mac, finding that as the first mortgagee, Bayview was protected under section 718.116(l)(b), Florida Statutes. The trial court further found that when Freddie Mac acquired title to the property from Bayview, Freddie Mac became jointly and severally liable with any balance owed by Bayview pursuant to section 718.116(l)(b). From this order, the Association appeals. On appeal, the Association argues that the safe harbor provision of section 718.116(l)(b) is limited to the owner of the loan....
...Aberdeen at Ormond Beach, L.P.,
760 So.2d 126, 130 (Fla. 2000). “A trial court’s interpretation of a statute presents a pure issue of law subject to de novo review on appeal.” Beltway Capital, LLC v. Greens COA, Inc.,
153 So.3d 330, 332 (Fla. 5th DCA 2014). Section
718.116(l)(a) provides that “a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title.” However, the statute carves out a safe harbor provision that caps liability for “a first mortgagee or its successor or assignees who acquire title” by foreclosure. §
718.116(l)(b)(l), Fla....
...h payment in full has not been received by the association; or *1019 b. One percent of the original mortgage debt. The provisions of this paragraph apply only if the first mortgagee joined the association as a defendant in the foreclosure action.... § 718.116(l)(b), Fla. Stat. The statute defines “successor or assignee” as “a subsequent holder of the first mortgage.” § 718.116(l)(g), Fla....
...mortgagee must be a prior holder of the priority mortgage.” Id. A holder, in turn, means “an owner or a possessor of the instrument.” Id. Thus, “ownership is not essential to a successor or assignee’s entitlement to limited liability under section 718.116(l)(b).” Id....
...Bank National Ass’n, 41 Fla. L. Weekly D2603 (Fla. 5th DCA Nov. 18, 2016), also concluded “that ownership of the note and mortgage is not required in order for a foreclosing party to limit its liability pursuant to the safe harbor provisions of section 718.116(l)(b).” Applying these principles to the instant case, we hold that Bayview, as the holder of the note, qualified for the safe harbor provision as the first mortgagee....
CopyPublished | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 82
...h the original declaration of the community was recorded. However, as to ftfst mortgages of record, the lien is effective from and after recording of a claim of lien in the public records of the county in which the parcel is located. Id,.-, see also § 718.116(5)(a), Fla....
CopyPublished | District Court, S.D. Florida | 2014 WL 28723, 2014 U.S. Dist. LEXIS 488
...incident to the collection process.” DISCUSSION A. HUD’S LIABILITY TO THE CONDOMINIUM ASSOCIATION FOR UNPAID ASSESSMENTS PRIOR TO TAKING TITLE In the event of an unpaid assessment, a condominium association is authorized to charge interest and late fees. See § 718.116(3), Fla....
...Forest Hills Gardens East’s declaration of condominium sets the rate of interest at 18% and additionally makes the unit owner liable for the costs of collection plus reasonable attorney’s fees. The liability of a foreclosing first mortgagee for a unit owner’s unpaid assessments is addressed in section 718.116(l)(b)l, Florida Statutes, which provides as follows: The liability of a first mortgagee or its successor or assignees who acquire title to a unit by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became...
...This is so because courts presume that the Legislature “said what it meant and meant what it said.” Rine v. Imagitas, Inc.,
590 F.3d 1215, 1222 (11th Cir.2009) (internal quotation marks omitted). Florida’s Third District Court of Appeal described section
718.116(l)(b)l as a “safe harbor” which provides “a statutory cap on liability of foreclosing mortgagees____” Bay Holdings, Inc....
...Individualized charges such as interest, late fees, collection costs and attorney’s fees simply do not fit within the statutory or common sense understanding of “regular periodic assessments.” 7 One hesitates to speculate on the policy underlying section 718.116(l)(b)l, but by limiting a foreclosing first mortgagee’s liability to certain, readily verifiable figures, the Legislature smoothed the way for the prompt sale of a condominium unit following foreclosure....
...— are added to the equation, the door is open wide for disputes as to reasonableness and necessity. Counsel for HUD represented to the court during oral argument that two potential sales were lost due to the protracted nature of this litigation. Properly applied, section 718.116(l)(b)l provides certainty to the resale process and removes potential impediments to reconstituting the condominium community....
...The association, however, maintains that section 7.7 is no longer valid. The provision was contained in the original declaration of condominium, recorded on October 28, 1980, but the association contends it was nullified by implication when the Florida Legislature amended section 718.116(1) in 1991....
...There is an insignificant difference between the verbiage of the safe harbor provisions in chapters 718 and 720. For condominium associations, the safe harbor limits liability to twelve months of “unpaid common expenses and regular periodic assessments.” § 718.116(l)(b)l.a, Fla....
....§
718.115(2), Fla. Stat. (providing that common expenses be collected "in the proportions or percentages provided" in the condominium’s declaration). . §
718.112(2)(c) 1, Fla. Stat.; see §
718.103(24), Fla. Stat. (defining "special assessments”). . §
718.116(3), Fla. Stat. .This holding is consistent with numerous Florida circuit courts that have also not permitted condominium associations to recover late fees, interest, collection costs, or attorney’s fees from first mortgagees under §
718.116(1)1....
...declaration of condominium, protects the members’ reliance interests in a document which they have knowingly accepted....”). . Declaration of Condominium, § 7.7 [ECF No. 61] (emphasis added). . Fla. CS for 1465 § 9 (1991) (introducing current § 718.116(1), Fla....
...claration of condominium that adopted the "the provisions of the Condominium Act as presently existing, or as it may be amended from time to time.... ”). . §
720.303, Fla. Stat.; see §
720.301(8), Fla. Stat. (defining "governing documents"). . §§
718.116(1) Fla. Stat.; §
720.3085(2)(a), Fla. Stat. . §
718.116(3), Fla....
CopyPublished | Florida 1st District Court of Appeal
...the first mortgage, where the association's subsequent lien was imposed under the association's declaration of covenants recorded before the first mortgagee recorded its notice of lis pendens"), review denied ,
2017 WL 2559143 (Fla. Jun. 13, 2017) ; §
718.116(5)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal
...rendering a transcript of the summary judgment hearing unnecessary for our
review.
7
In Saar v. Wellesley at Lake Clarke Shores Homeowners Association,
Inc.,
68 So. 3d 417 (Fla. 4th DCA 2011), we considered a claim of lien filed
under section
718.116(5), which is nearly identical to section
720.3085.
There, the HOA filed suit against the homeowner for two unpaid
assessments....
CopyPublished | District Court of Appeal of Florida
So. 3d 639 (Fla. 2d DCA 2014), holding that section
718.116(3), Florida Statutes (2014), never intended
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 238222, 2013 Fla. App. LEXIS 956
...After Appellant had acquired the Unit, Appellee attempted to recover from Appellant the past due assessments, late fees, and interest that had accrued since the original owner defaulted. 1 Appellee maintained that, as third party purchaser, Appellant was liable under section 718.116(l)(a), Florida Statutes (2009) (the Statute), which provides in pertinent part: A unit owner, regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments which come due while he or she is the unit owner....
...3 The trial court further held that Appellee was not jointly and severally liable to Appellant for any amounts. This appeal followed. The Statute clearly provides that “a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title.” § 718.116(l)(a) (emphasis added)....
...oid an otherwise absurd result. The Statute is one portion of a general framework, according to Appellee, designed to provide condominium associations with a mechanism for the preservation of their rights with regard to fee assessments. To that end, section 718.116(5)(a) provides “[t]he association has a hen on each condominium parcel to secure the payments of assessments.” § 718.116(5)(a), Fla. Stat. (2009). Similarly, section 718.116(6)(a) states, in pertinent part, “[t]he association may bring an action in its name to foreclose a hen for assessments in the manner a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for unpaid assessments without waiving any claim of hen.” § 718.116(6)(a), Fla....
...ts. . We note, however, that nothing in the Statute precludes entities, such as appellee, from attempting to collect unpaid assessments from the prior owner from whom it purchased the Unit, subject of course to any applicable statute of limitations. § 718.116(l)(a), Fla....
...Joint and several liability for unpaid assessments between the current and prior owner is established by the Statute "at the time of transfer of title,” and it is not extinguished by subsequent transfers of title. . The portion of the Declaration of Condominium cited by Appellee contains identical language to section 718.116(6)(a), stating, in pertinent part, “The association may bring an action in its name to foreclose a lien for assessments in the manner a mortgage of real property is foreclosed and may also bring an action to recover a money judgment...
CopyPublished | Florida 3rd District Court of Appeal
...The amended complaint asserts claims for breach of contract,
injunctive relief, and negligence against PBT and PBC. In addition, the PBT
unit owners alleged claims for breach of contract, breach of fiduciary duty,
negligence, and violation of section 718.116(10), Florida Statutes (2021),
arising out of PBT’s failure to maintain the PBT building and to repair
damage.
In July 2023, following discovery, plaintiffs sought leave to amend their
complaint to assert a claim for punitive damages against PBT....
...Plaintiffs allege ten counts against PBT: Counts One through Eight
allege claims of breach of contract, injunctive relief, negligence, and breach
of fiduciary duty, Count Thirteen seeks an equitable accounting and Count
Sixteen alleges a violation of section 718.116(10), Florida Statutes (2023).
As for Counts One through Four, there are simply no allegations of
reckless or wanting care, conscious disregard, or indifference to the life,
safety and rights of persons exposed to such conduct....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 18642
...condominium, and the condominium by-laws which all require that each unit owner bear a share of the common expenses proportionate to his or her ownership interest. Plaintiffs specifically relied upon Section
718.115(2), Florida Statutes (1981), and Section
718.116(8), Florida Statutes (1981)....
...assessments against unit owners in the proportions or percentages provided in the declaration. In a residential condominium, unit owners’ shares of common expenses shall be in the same proportion as their ownership interest in the common elements. Section 718.116(8), Florida Statutes (1981), prohibiting the waiver of rent provides: “No unit owner may be excused from the payment of his share of the common expense of a condominium unless all unit owners are likewise proportionately excused fro...
CopyPublished | Florida 3rd District Court of Appeal | 2013 Fla. App. LEXIS 1760, 2013 WL 440086
...date the Association was issued the Certificate of Title. The issue before this Court is the exact issue raised in Aventura Management, LLC, v. Spiaggia Ocean Condominium Association, Inc.,
105 So.3d 637 (Fla. 3d DCA 2013), where we held that under section
718.116(1)(a), Florida Statutes (2009), there is no exception to be made for joint and several liability for unpaid assessments that come due up to the transfer of title when the “previous owner” is the condominium association....
CopyPublished | District Court of Appeal of Florida
sought the “Safe Harbor” amounts pursuant to section
718.116(1)(b)1., Florida Statutes (2017).1 The Association
CopyPublished | United States Bankruptcy Court, M.D. Florida | 75 Collier Bankr. Cas. 2d 257, 26 Fla. L. Weekly Fed. B 31, 2016 Bankr. LEXIS 582, 2016 WL 769997
includes this quoted language. . Fla. Stat. §
718.116. . Doc. No. 60-4, Sec. I. . Doc. No. 60-4
CopyPublished | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 2013, 2005 WL 415996
SHEPHERD, J. Bay Holdings, Inc., a wholly-owned subsidiary of Bank United FSB, appeals an adverse judgment below holding that it does not come under the safe harbor provision of section 718.116(1) of the Florida Statutes. Bay Holdings was the subsequent assignee of a final judgment of foreclosure obtained by Bank United, after Bank United became the foreclosing first mortgagee on a condominium unit in Miami-Dade County, Florida. Section 718.116(1) provides a statutory cap on liability of foreclosing mortgagees for unpaid condominium assessments that become due prior to the first mortgagee’s acquisition of title pursuant to a foreclosure proceeding. Because the statute clearly and unambiguously affords this safe harbor only to first mortgagees or “a subsequent holder of the first mortgage,” (emphasis supplied), we affirm. See § 718.116(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...claiming by, through or under the defendants or any of them
and the property will be sold free and clear of all claims of
the defendant with the exception of any assessments that
are superior pursuant to sections 718.116 or 20.3085,
Florida Statutes.
(Emphasis added.)
The property was sold on January 28, 2013, more than a year after entry
of the final judgment....
...execution
of the subsequent mortgage." Id.
"The [l]egislature has, however, provided separately for the priority of
certain liens over the priority established under chapter 695." City of Palm Bay,
114 So.
3d at 928. For example, section
718.116(5)(a), Florida Statutes (2011), provides:
The association has a lien on each condominium parcel to
secure the payment of assessments....
CopyPublished | Florida 2nd District Court of Appeal | 13 Fla. L. Weekly 119, 1987 Fla. App. LEXIS 11822, 1987 WL 29026
...ominium clearly anticipate that the vendor under an agreement for deed would be personally liable as a "unit owner" for the condominium assessments regardless of whether the vendee under such an agreement might also be so liable. We do not find that section 718.116 is a model of clarity in establishing the personal liability of parties who may jointly own varying degrees of ownership in a condominium unit. It is clear from section 718.116(1)(a) that a "grantee shall be jointly and severally liable with a grantor" for unpaid assessments "up to the time of transfer of title." We perceive that the overall intent of the legislative scheme concerning personal liability for...
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 13393, 1995 WL 757901
...of petitioner. The circuit court, in its appellate capacity, affirmed the county court judgment. However, the circuit court did not rule on petitioner’s pending motion for appellate attorney’s fees, pursuant to the Declaration of Condominium and section 718.116(6)(a), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal
...r granting rehearing and reinstating
an equitable lien in favor of Gulfstream of Las Olas Condominium
Association (“Association”) for receivership fees. The trial court found that
Christiana Trust was not entitled to safe harbor protection under section
718.116(1)(b)(1), Florida Statutes (2020), and that Christiana Trust failed
to intervene in the receivership action within thirty days of the recording
of notice of lis pendens.
The issue for our consideration on appeal is whether a receiver
appointed at the request of a condominium association pursuant to
section
718.111(5), Florida Statutes (2020), is subject to the safe harbor
provision of section
718.116(1)(b)(1), which limits liability for past due
condominium assessments....
...ntervene, to determine amounts
due and owing, to terminate receivership, and to vacate the equitable lien.
Christiana Trust argued that because it took title by foreclosure of its first
mortgage lien, it was entitled to the safe harbor protection of section
718.116(1)(b)(1)....
...language of the statute and its plain meaning. Id. “When the language of
2
a statute is clear and unambiguous, a court may not resort to the rules of
statutory construction.” Id.
This case presents an issue of the interplay between section
718.116(1)(b)(1), which limits the liability for past due assessments, and
section
718.111(5), which permits recovery for the expenses incurred by a
receiver. The safe harbor provision of section
718.116(1)(b)(1) limits the
liability of a first mortgagee, and its successors and assigns, for past due
condominium assessments....
...2014-133, Laws of Fla. Section
718.111(5)(b), Florida
Statutes (2020), states, in relevant part:
3. Any expense incurred by an association pursuant to this
paragraph is chargeable to the unit owner and enforceable as
an assessment pursuant to s.
718.116, and the association
may use its lien authority provided by s.
718.116 to enforce
collection of the expense.
3
4....
...We find the trial court was correct the first time and erred when it
granted rehearing. The trial court failed to apply the plain language of the
safe harbor provision. The safe harbor provision expressly limited
Christiana Trust’s liability for “unpaid assessments.” § 718.116(1)(b)(1),
Fla....
...1
In conclusion, the trial court erred when it granted rehearing. The trial
court got it right initially when it vacated the equitable lien, terminated the
receivership, and found Christiana Trust was entitled to the safe harbor
protection provided for by section 718.116(1)(b)(1)....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 3, 1984 Fla. App. LEXIS 16143
...The fine is not collectible from all unit owners in proportion to their ownership interest, and therefore cannot be a common expense without violating section
718.115(2). Although the condominium documents purport to transform a fine into a common expense and thus make the fine enforceable under section
718.116, 1 the condominium documents cannot lawfully provide procedures which are inconsistent with the Condominium Act....
CopyPublished | Florida 1st District Court of Appeal
...the complaint—had been recorded in the official records of Okaloosa County prior
to the filing of U. S. Bank’s complaint. 1 The Association answered the complaint
and asserted a counter claim for foreclosure on its claim of lien for the
condominium assessments. § 718.116(5)(a), Fla....
...as recorded prior to the
liens of other defendants and was thus superior in interest to those liens. The
1
The record contains subsequently recorded claims of lien by the Association,
perhaps to preserve the effectiveness of the claim under section 718.116(5)(b), Fla.
Stat.
3
Association then filed its motion to dismiss and for sanctions against U.S....
...2
See City of Palm Bay v. Wells Fargo Bank, N.A.,
114 So. 3d 924 (Fla. 2013)
for additional discussion of priority of interests in real estate.
7
assessments, and mortgagees seeking foreclosure, in section
718.116(5)....
...discretion and require reversal. See U.S. Bank Nat’l Ass’n v. Tadmore,
23 So. 3d
822 (Fla. 3d DCA 2009) (reversing sanctions for delays in litigation which
required plaintiff Bank to pay condominium assessments earlier and in amounts in
excess of those required by section
718.116(1)(b)); Deutsche Bank Nat’l Trist Co.
v. Coral Key Condo. Ass’n,
32 So. 3d 195 (Fla. 4th DCA 2010) (same).
The sanction imposed here actually determined a material, disputed issue in
the litigation. The declaration of lien priority did not rely on any evidence of
3
Section
718.116(5)(a) provides:
(5)(a) The association has a lien on each condominium parcel to secure the
payment of assessments....
...The case is remanded for a
determination by the trial court of the relative priority of the parties’ liens, based
9
on any evidence submitted by the parties and the application of sections
695.11
and
718.116(5), Florida Statutes to that evidence....
CopyPublished | Florida 4th District Court of Appeal
...(“the association”)
based on its claim for unpaid assessments. She contends the trial court
erred in ordering the funds to be distributed to the association where it
did not record a claim of lien or obtain a final judgment. Because the
association has a lien on the unit by virtue of section 718.116(5)(a),
Florida Statute (2016), we disagree and affirm.
Condominiums are governed by chapter 718, Florida Statutes.
Section 718.116 clearly states that an association has a lien on each
parcel, and implies that a claim of lien against a unit owner for
assessments becomes necessary only in cases where a mortgagee is also
asserting a claim:
(5)(a) The associa...
...original declaration of condominium . . . . However, as to
first mortgages of record, the lien is effective from and after
recording of a claim of lien in the public records of the
county in which the condominium parcel is located.
§ 718.116, Fla. Stat. Consequently, under section 718.116, where a
declaration of condominium is recorded, such as in the instant case,
recording a claim of lien is not an absolute prerequisite to the
enforcement of a lien for unpaid assessments....
...2d 1344, 1348 (Fla. 1980) (holding that a valid
contractual lien was created at the time the respondents accepted a
property deed with actual or constructive notice of the lien provision of a
recorded declaration of restrictions).
This interpretation of section
718.116(5)(a) is consistent with a
dissenting opinion in a case involving a foreclosure sale, Aventura
Management., LLC v. Spiaggia Ocean Condominium Association,
105 So.
3d 637, 640 (Fla. 3d DCA 2013). There, Judge Shepherd of the Third
District dissented with respect to an issue unrelated to the instant
matter, but his dissent sheds light on section
718.116. He indicated that
a “statutory lien” is created by section
718.116(5)(a) and that a recorded
claim of lien is not required under the section in most circumstances:
The majority opinion . . . . first concludes, correctly in my
view, that [the] Condominium Association’s statutory lien,
afforded by section
718.116(5)(a), Florida Statutes (2008),
“survives the foreclosure.” Maj....
...at 5; see also Lassiter v.
Kaufman,
581 So. 2d 147, 148 (Fla. 1991); Contos v. Lipsky,
433 So. 2d 1242, 1245-46 (Fla. 3d DCA 1983). . . .
....
. . . [I]t is apparent the fundamental purpose of the
Legislature in promulgating section
718.116 was to assist
condominium associations to be made whole in the collection
of past due assessments, while at the same time not unduly
impairing the value of collateral held by first mortgagees....
...ction, to secure
payment of assessments without the necessity of filing a
2
claim of lien in the public records, with the single exception
of first mortgagees, where record notice is required. §
718.116(5)(a).
Id....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 8198
...This foreclosure action had been pending for more than three years when the condominium association filed a motion with the trial court requesting that the court order FDIC to pay the assessments due on the foreclosure property. The trial court denied the motion, concluding that, under section 718.116, Florida Statutes (1991), the owner was liable for such assessments and *582 FDIC, as a foreclosing mortgagee, was not the owner of the property....
...sale or postponing the sale conditioned on the payment of these assessments. 3 REVERSED. HARRIS, C.J., and GRIFFIN, J., concur. . We have jurisdiction to review this order pursuant to rule 9.130(a)(4), Florida Rules of Appellate Procedure. . Compare § 718.116, Fla.Stat. (1992). . Because of our disposition of this matter, we do not reach the other issues raised by FDIC. These issues include whether section 718.116, Florida Statutes (1991), precludes imposing such assessments on FDIC as a foreclosing mortgagee prior to the time that it becomes the owner of the property and whether such assessments constitute a penalty under the provisions of 12 U.S.C.A....
CopyPublished | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 9190, 1992 WL 203888
...as to resolve all claims against the real property involved. Cf. Yost v. American Nat’l Bank,
570 So.2d 350, 352 (Fla. 1st DCA 1990) (failure to raise a compulsory counterclaim constitutes a waiver of the claim). We also agree with appellants that section
718.116(4), Florida Statutes (1985), would apply to any assessment liens filed by the association .to secure the collection of past rent or to pay for the prior purchase of the recreation lease....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 12799
...Ass’n, Inc.,
201 So.3d 670, 676 , 41 Fla. L. Weekly D1657 , D1659,
2016 WL 3766582 (Fla. 2d DCA July 15, 2016); U.S. Bank Nat'l Ass’n v. Bevans,
138 So.3d 1185, 1187 (Fla. 3d DCA 2014); Citimortgage, Inc. v. Henry,
24 So.3d 641, 643 (Fla. 2d DCA 2009). See also §
718.116(5)(a), Fla....
...1 The third party purchaser filed a counterclaim to quiet title. Those actions are pending and are not the subject of this appeal. Relevant to this case, the Bank moved to vacate the April 2010, final judgment of foreclosure. The Bank directed the trial *699 court to section 718.116(5)(a), Florida Statutes, which establishes the priority of first mortgages of record over the association’s lien as follows: The association has a lien on each condominium parcel to secure the payment of assessments....
...Nothing in this subsection shall be construed to bestow upon any lien, mortgage, or certified judgment of record on April 1, 1992, including the lien for unpaid assessments created herein, a priority which, by law, the lien, mortgage, or judgment did not have before that date. § 718.116, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 12557, 2015 WL 4965912
...(BOA), challenges the trial court's
order denying BOA's motion to enforce the final judgment of foreclosure. Because The
Enclave at Richmond Place Condominium Association (Association) affirmatively
pleaded that BOA was entitled to the benefit of the assessment liability limitation under
section 718.116(1)(b), Florida Statutes (2013) (safe harbor provision), we reverse.
The facts relevant to our holding are few....
...inferior. Additionally, the Association affirmatively pleaded:
The mortgage which is being foreclosed is a first
purchase money mortgage which was recorded after April 1,
1992. Pursuant to Fla. Stat. § 718.116, the Plaintiff's lien is
superior to any title and interest to any condominium
assessments, except for those unpaid dues, which are not to
exceed six (6) months' unpaid assessments or one percent...
...gh, or under the
defendants or any of them and the property will be sold free
and clear of all claims of the defendants, with the exception
of any assessments that are superior pursuant to Sections
718.116 or
720.3085, Florida Statutes.
Neither the Association nor any other defendant appealed the final judgment.
BOA purchased the property at the foreclosure sale and a certificate of
title was issued....
...In response, the Association claimed entitlement to more
than $36,000 in unpaid assessments, interest, and various fees. As a result of the
Association's claim, BOA filed the motion to enforce the final judgment. BOA argued
that its liability for unpaid assessments was limited pursuant to the express terms of
section 718.116(1)(b) and the Association's declaration of condominium....
...-3-
b. One percent of the original mortgage debt. The provisions
of this paragraph apply only if the first mortgagee joined the
association as a defendant in the foreclosure action.
§ 718.116(1)(b)....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 12475, 2015 WL 4927073
...Citation Way Condominium Association, Inc. (“the Association”)
appeals a trial court’s order granting Wells Fargo Bank, N.A.’s (“Wells
Fargo”) motion to enforce final judgment and to determine amounts due to
the Association for unpaid assessments under section 718.116, Florida
Statutes (2013)....
...t
Leslie Linder, the then owner of the subject condominium unit. In its
amended complaint, Wells Fargo alleged in part that its lien was superior
to any other claims against title and interest except for unpaid
condominium assessments as provided in section 718.116, Florida
Statutes....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 12406, 2015 WL 4923677
...ion brought by Space Coast Credit Union.
Because the trial court lacked jurisdiction to enter the order, we reverse. We therefore
need not address the issue of whether Space Coast was entitled to the statutory
limitation on liability set forth in section 718.116(1)(b), Florida Statutes (2013).
The final judgment of foreclosure was entered in favor of Space Coast in
its foreclosure action against Robert Hayden after he failed to pay his mortgage on his
condominium unit.1 After...
...to enforce final judgment or alternatively to amend certificate of title, seeking a
determination of the amount of unpaid condominium assessments due to Grand
Central. Specifically, Space Coast sought a ruling that it was entitled to the safe harbor
provision of section 718.116(1)(b), which limits the liability of the "first mortgagee or its
successor or assignees who acquire title to a unit by foreclosure" to "the lesser of ....
..., Grand Central argued that the
trial court lacked jurisdiction because the final order contained only a general
reservation of jurisdiction. The trial court disagreed and granted Space Coast's motion,
limiting Space Coast's liability pursuant to section 718.116(1)(b)....
...This was error.
The trial court lacked jurisdiction because entitlement to assessments was
neither litigated nor adjudicated and the trial court did not specifically reserve jurisdiction
to determine the amount of assessments due pursuant to section 718.116(1)(b)....
...Id.
Finally, in Callahan, the Third District specifically concluded that the
general reservation of jurisdiction in that case "did not specifically reserve jurisdiction to
determine the amount of assessments due pursuant to section[ ] 718.116 ....
CopyPublished | Florida 5th District Court of Appeal
...bankruptcy, except as may otherwise be provided in
this judgment; to enter a reforeclosure judgment/order
to correct errors or omissions in this foreclosure action;
or to determine the amounts due any association
under §
718.116 or §
720.3085....
CopyPublished | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 4511, 2010 WL 1329881
...and that involves the expenditure of labor or money and is distinguished from ordinary repairs"). 2. On the other hand, the statutory perquisites to a valid "special assessment" as provided by the Condominium Act were simply not demonstrated below. § 718.116(5)(b) Fla. Stat. (2008) [2] ; § 718.116(10) Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2017 WL 1494004, 2017 Fla. App. LEXIS 5755
...o such fees
and costs.
I. The Lawsuits
In circuit court case 12-690, the Association petitioned for appointment of a
receiver for the 75 units within the 312-unit condominium that were delinquent in
their payment of assessments, section 718.116(6)(c), Florida Statutes (2012)....
CopyPublished | Florida 4th District Court of Appeal
...he renovation project,
appellants sought a temporary injunction to halt the project. The circuit
court denied temporary relief. After this ruling, appellants apparently paid
the assessment, a prudent act that avoided a lien foreclosure lawsuit
under section 718.116, Florida Statutes (2017)....
CopyPublished | Florida 3rd District Court of Appeal
...The fact that the legislature has recognized a problem and, subsequent to the filing of the present declaration in 1972, passed legislation which limits the time a developer can avoid assessments to a maximum of four months after the closing and sale of the first unit, see ch. 76-222, § 1, Laws of Fla.; § 718.116(8)(a), Fla....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 3916, 22 Fla. L. Weekly Fed. D 950
PER CURIAM. We find no error in a trial court holding that condominium maintenance charges levied pursuant to condominium documents recorded in 1974 take priority over a second mortgage recorded in 1980 pursuant to Section 718.116(6) of the Florida Statutes as it existed in 1980....
CopyPublished | Florida 3rd District Court of Appeal
...Concluding that
the trial court had no discretion to reduce the amount of such interest,1 we reverse
the trial court’s interest award and remand for calculation consistent with the
requirements of the relevant provisions of chapter 718 of the Florida Statutes.
Section 718.116(1)(a) provides that a condominium unit owner “is liable for
all assessments which come due while he or she is the unit owner.” §
718.116(1)(a), Fla Stat....
...See Bosem v. Musa Holdings,
Inc.,
46 So. 3d 42, 44 (Fla. 2010).
2
July 13, 2003 to February 28, 2008. The Amended Final Judgment awarded the
Association $40,420.34 for unpaid assessments, plus interest.
Section
718.116(3)2 further provides that unpaid assessments shall bear
interest from the due date until paid at the interest rate provided by the Declaration
of Condominium.3 Pursuant to section
718.116(3) and the Declaration of
Condominium, the Association sought to recover interest on the unpaid
assessments at the highest rate allowed by law (eighteen percent).4
While apparently acknowledging that the Association had ca...
...which are not paid when due bear interest at the rate
provided in the declaration, from the due date until paid. The rate may
not exceed the rate allowed by law, and, if no rate is provided in the
declaration, interest accrues at the rate of 18 percent per year.
§ 718.116(3), Fla....
...recovery in interest for the claimant, the trial court lacked the discretion to reduce
an interest award based on equitable considerations, despite the claimant being
responsible for an unexcused and excessive delay in attempting to perfect and
collect on an unpaid claim). In section 718.116(3), the Legislature has expressly
provided for entitlement to interest – for a specified duration and at a specified rate
– in claims for unpaid condominium assessments....
...“[E]quity
6 The trial court awarded interest only for the two-year period between the filing of
the instant action in January 2013, and the entry of final summary judgment in
January 2015.
4
has no role.” Id. Under the plain and unambiguous language of section
718.116(3), the Association was entitled to recover interest “at the rate provided in
the declaration, from the due date until paid.” The trial court had no discretion to
award anything less in this case. Id.7
We therefore reverse only the interest award, and remand with instructions
that the trial court award the Association all interest as provided by section
718.116(3) and the Declaration of Condominium....
