I set forth below common defenses to a condominium association’s  actions to collect unpaid assessments.    These defenses apply to  the foreclosure of  claims of lien for unpaid assessments and and to breach of contract claims.  I also discuss prevailing party attorney fees, which a party should always consider before entering litigation.        

Keep in mind that this list is not exhaustive.  For instance, where an association attempts to collect an unauthorized assessment, an owner may counterclaim for breach of contract and breach of fiduciary duty.

         If you missed my last blog post on condominium liens, which provides an introduction to the topic, you may want to read that first.

 I. Defenses:

Failure to Meet Conditions Precedent  (Lack of Notice)

                As I stated in my prior blog post, The Florida Condominium Act (Section 718.116) requires the association to provide the owner specific notices prior to filing its claim of lien, and again, prior to foreclosing its claim of lien. The condominium lien is a statutory creation, so the association is expected to strictly comply with is requirements.  

                   If the association does not give the owner requisite notice before filing its claim of lien, the claim of lien is probably void (though there is not yet any case law on this issue). If the pre-suit notice is not given at least 30 days before the foreclosure action is filed, and if the unpaid assessments—including those due after the claim of lien is recorded—are paid before the entry of a final judgment of foreclosure, the association shall not recover attorney’s fees or costs. Additionally, no foreclosure judgment can be rendered if the proper notices were not served on the unit owner. 

 Statute of Limitations

            An action to foreclose a condominium association’s lien must be brought within one year from the date the lien was recorded.   See   718.116(5)(b). If a lawsuit is not brought to foreclose the lien within this time period, the lien is void. In this situation, the association would have to start the process over by filing a new claim of lien against the owner. 

         The association is also authorized by statute to sue an owner  for damages for breach of contract for unpaid assessments.  Typically, an association will file a 2 count complaint against a delinquent owner for damages and to foreclose its lien. If the foreclosure complaint is dimissed for lack of compliance with technical requirements, the damages suit can still proceed. A claim for breach of contract must be brought in five years to be timely. See 95.11(2)(b).

Selective Enforcement Doctrine

          A unit owner may avoid liability for a delinquent assessment if he can show that other owners are not being sued for similar assessments, and that an association is targeting him for selective enforcement.   A condominium association attempting to enforce a covenant against one violator, while permitting others to continue violating the same covenant, constitutes selective enforcement.  (White Egret Condo., Inc. v. Franklin), 379 So.2d 346 (Fla. 1979). Where the court finds that a restriction is valid yet its enforcement is unequal and arbitrary, it will not allow an association to enforce the regulation.

        The unit owner will need to establish that the association encouraged nonpayment of the assessment at issue, or provide evidence that he reasonably relied on other owners’ nonpayment in order to prove selective enforcement. This is a tall task since the declaration of condominium typically provides that all owners are liable for their respective share of assessments.  The cases on record where an owner has successfully pled selective enforcement against a condominium association usually involve

Violation of Federal and State Debt Collection Laws

              Condominium assessments arise incident to a consumer’s purchase of his unit (Agrelov v Affinity Mgt Svcs LLC”, Case No. 15-14136 (11th Cir., 2016)),  and are therefore consumer debts under state and federal debt collection laws.  

            The Florida Consumer Collection Practices Act (Section 559.72) regulates how debt collectors interact with debtors in important ways and applies to both original creditors and third party debt collectors.   The  Fair Debt Collection Practices Act is a federal law that sets down similar rules (15 U.S.C. §1692) but only applies to third party debt collectors.

         These debt collection  laws require the creditor/debt collector to notify the debtor in its first communication that it is attempting to collect a debt.  It must also give the debtor specific information on how and when he can dispute the validity of the alleged debt.  The laws limit the manner and the time of day (in the case of telephone calls) that a debt collector may contact a debtor.  Finally, The FCCPA  expressly prohibits a creditor from attempting to collect a debt that it knows is not legitimate.

           Perhaps the most important part of these debt collection laws from the point of view of the condo owner is that they afford him a private cause of action against an association that is atttempting to collect an illegitimate debt.  They also provide for substantial damages for breaches. The FCCPA allows the following remedies for a successful claimant:

-          Actual damages

-          Statutory damages of up to $1,000 per violation

-          Attorney fees and court costs

 Payment

                  Occasionally condominium associations do not properly credit payments of assessments to the payee owner.   If an association later mistakenly files a claim of lien against the owner’s unit for nonpayment, the owner can defeat its claim by showing that the payment was tendered.

Accord and Satisfaction

                 Sometimes a creditor and debtor agree to settle a claim for an amount less than the debt that the creditor originally alleged.   This is called an accord.  When the debtor fulfills the accord by tendering payment to the creditor of the agreed settlement amount, satisfaction occurs.  

                If a condominium association bills an owner for an assessment, but then agrees to accept less than the billed amount,  AND receives the compromised sum from the owner, its original claim is discharged. 

Noncompliance with Foreclosure Procedures

          Florida law strictly regulates the foreclosure process.  Once a plaintiff obtains a final judgment of foreclosure, a sale is scheduled.   The clerk of court must advertise the sale for at least 2 consecutive weeks in a publication of general circulation.   The defendant has the right to make the first bid on the foreclosed property.  Once the property is sold, the defendant has an absolute right to redeem the property within 10 days.  Failure to follow the correct procedures could be grounds for delaying sale of a foreclosed property or vacating a final judgment of foreclosure.

II. Prevailing Party Attorney Fees:

            In nearly all legal actions involving condominium associations, the prevailing party is entitled to recover its attorney fees by statute.  Very often, there is also a contractual basis for prevailing party attorney fees. Section 718.116(5)(b) provides that “The claim of lien secures all unpaid assessments that are due and that may accrue after the claim of lien is recorded and through the entry of a final judgment, as well as interest, administrative late fees, and all reasonable costs and attorney fees incurred by the association incident to the collection process.”   Thus, Florida law provides that an association can recover its attorney fees incurred in both the pre-suit lien process and the foreclosure process against the owner.  If the association ultimately proves the underlying debt to the court’s satisfaction, The court will add these fees to the final judgment of foreclosure. 

        But what if the association’s claim of lien is wrong?  Can an owner recover his attorney fees from an association for having to defend a frivolous foreclosure?  YES

          Section 718.303 (1) provides for prevailing party attorney fees in any action for damages brought by either a unit owner or an association against each other for failure to comply with provisions of the condominium’s governing documents.  Also, most declarations of condominium provide that the Association is entitled to recover its attorney fees for collecting assessments from an owner.  Florida courts, however,  read mutuality into any contractual provision for prevailing party attorney fees pursuant to Section 57.105(7).  In summary, both owners and associations are usually entitled to prevailing party attorney fees based on statute and contract

              A party may also seek fees pursuant to other provisions of Section 57.105, which awards a litigant attorney fees as a sanction against the losing party and the losing party’s attorney for asserting a frivolous claim or defense. The standard for obtaining 57.105 fees is exacting, however. The court must find that, at the time the claim was filed, it lacked a basis in material facts or then-existing law. Case law also suggests that the court must make a finding that the losing party acted in bad faith.

III. Summary:

             Florida law authorizes condominium association liens against the units of its member owners, and provides for a fast-track foreclosure process for unpaid assessments. The Florida Condominium Act also authorizes the recovery of attorney fees, costs, and interest expended in the collection of delinquent assessments from the unit owner. These tools give condominium associations tremendous financial leverage over owners to compel payment of asserted debts. 

              These facts should give a unit owner pause before entering into litigation against a condominium association. If, however, an owner can show that an assessment was not duly authorized, was already paid, or that required notices were not given, he can defeat or delay the collection of the assessment.  Furthermore, an owner can recover his own attorney fees and costs from the association when he prevails in litigation concerning assessments.

            If you are facing a condominium lien or other urgent legal issue, contact John Clarke Esq. at (305) 467-5560 for a free consultation.  The hiring of an attorney is an important decision that should be made after careful research and deliberation.