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special assessment
Jeffrey Rembaum, Esq., Kaye Bender RembaumMay 9, 20244 min read

Why Is This Special Assessment Different from All Others and the Need for a Legislative Fix

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Not too long ago a condominium association foreclosed its assessment lien against a deceased unit owner and the sole heir. With the statutory prerequisites completed, including the recordation of the lien, the association commenced its foreclosure lawsuit. Ultimately, due to the failure of the defendants to respond, a final summary judgment in favor of the association was ordered, This judgment also included two special assessments that were properly levied by the association and remained unpaid. Here is where things begin to get interesting.

The special assessments were levied by the association after the lien was recorded and after the association commenced its foreclosure lawsuit. Therefore, the special assessments were not specifically referenced in the lien or in the foreclosure complaint because they were adopted after the lien was recorded and after the foreclosure action commenced. It is important to note that Section 718.116 (5)(b), Fla. Stat., provides the following, in pertinent part:

…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…(emphasis added)

Therefore, one might logically conclude that the special assessments, even though adopted after the claim of lien was recorded, were properly included in the final summary judgment. However, ultimately, the heir appealed the final summary judgment which had included the two special assessments, arguing that it was improper for the trial court to have included such amounts in the final judgment. In its decision in Orfanos v. 45 Ocean Condominium Association, Inc. 368 So.3d 995 (4th DCA, August, 2023), the 4th DCA concluded that a special assessment that was adopted after all of the pleadings were filed could not be included because they are not the “assessments that accrued” under the above-referenced statutory provision. The appellate court concluded that their decision was supported by a prior 4th DCA decision in Losner v. Australian of Palm Beach Condominium Ass’n, 139 So. 3d 986 (Fla. 4th DCA 2014). (Probably not coincidentally, two of the judges on the Losner appellate panel were also on the Orfanos appellate panel.) It was the Losner decision that provided the following:

…However, the word “accrue” references assessment already made before a claim of lien is filed, but coming due afterwards, but it does not refer to additional assessments for other purposes, such as separate assessments that are assessed against an owner after the time the complaint to foreclose on a claim of lien is filed…

In Orfanos the appellate court held that in order for the special assessments to have been included in the final summary judgment, the association should have either amended its complaint and/or the lien.

While this author and many experienced association lawyers may disagree, that is of little consequence, as the appellate court has spoken. To resolve these problems, a change to 718.116(5)(b) should be considered. Suggested proposed language could read as follows:

…The claim of lien secures all unpaid assessments, including, but not limited to special assessments, that are due and that may accrue and/or be adopted 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…

Failure of the Florida legislature to pass such legislation, and similar legislation as may be needed for homeowner and cooperative associations, not only leads to waste of judicial economy due to the need for additional legal proceedings but also leads to unnecessary expenditure on association legal fees. Under current legislations the association will need to either amend the existing complaint and/or lien, thereby causing additional pleading and hearings, or require a whole new collection action to be filed beginning with the statutory required collection letters.

Therefore, without a legislative fix, additional court hearings will likely be necessary, causing the association to incur additional legal fees. The association will ultimately force the debtor to pay for those additional fees if the association successfully concludes its collection/foreclosure action. All of this could be avoided by the Florida legislature undertaking the simple fix suggested above.

Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations.  His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.