Monthly Archives: August 2016

Condominium Assessment Liens in Florida, Part IV: Overcoming Defenses and Sale of the Unit

A condominium association’s governing documents in conjunction with Section 718.116, Florida Statutes, are the genesis of the condominium association’s authority to impose and perfect assessment liens against individually owned units within the community. This four-part blog will discuss the condominium association’s right to lien, perfecting the condominium association lien, and collection practices for condominium associations. Part IV of this blog will discuss overcoming Unit Owner defenses to the foreclosure and the ultimate sale of the condominium unit.

Just like all other lawsuits, the unit owner is entitled to assert defenses. Below is a discussion on the most common. Read Full Post

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Consumer Financial Protection Bureau Compliance: What Banks Need to Know, Part II

The CFPB is authorized to conduct investigations to determine whether any person is, or has, engaged in conduct that violates federal consumer financial law. The investigations often include subpoenas and other investigative demands for testimony, responses to written questions, documents, or other materials. Once a potential violation is discovered, the CFPB can pursue administrative proceedings or civil actions in Federal District Court. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas: ,

Title Search: A Must for Associations Filing Foreclosures

The recent case of Bank of America, N.A. v. Kipps Colony II Condominium Association, Inc., — So. 3d —-, 2016 WL 3766582 (Fla. 2d DCA 2016), is instructive for attorneys representing condominium and homeowners’ associations and emphasizes the need for such attorneys to have a firm grasp of Florida’s lien law with respect to prior mortgagors. Read Full Post

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Condominium Assessment Liens in Florida, Part III: Assessment Foreclosure Actions

A condominium 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 it may also bring an action to recover a money judgment for the unpaid assessments. The association is entitled to recover its reasonable attorney’s fees incurred in either a lien foreclosure action or an action to recover a money judgment for unpaid assessments. See 718.116(6)(a). Condominium lien foreclosure is not subject to the alternative dispute resolution proceedings found under Section 718.1255, Florida Statutes, which means that the parties do not have to engage in mediation or arbitration. Read Full Post

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Community Association Members’ Right to Information

The right of a community association member to information differs slightly depending on whether the person is a member of a homeowners’ association or a condominium association. However, in analyzing a person’s right to information, it is important to understand that the relevant statutes are meant to balance the member’s access to information while protecting the association from a member whose requests are harassing (intentional or not). Read Full Post

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Consumer Financial Protection Bureau Compliance: What Banks Need to Know, Part I

The financial crisis of 2007-08 triggered a substantial adjustment in the federal government’s regulation of the banking and lending industry; one notable result being the establishment of the Consumer Financial Protection Bureau (CFPB) under the Dodd-Frank Act (the Act) in 2010. The general goal of the CFPB is to protect consumers by restricting unfair, deceptive, or abusive practices, promoting financial literacy among consumers, researching consumer behavior, and monitoring financial markets to detect risks to consumers. Proper compliance with the CFPB’s continuously developing regulations can be elusive. Violations can result in fines, penalties, or civil liability in addition to bad publicity for an alleged violator. It is therefore important for all business entities to understand the scope of the regulations, proactively ensure compliance, and be prepared to deal with enforcement action from the CFPB. Read Full Post

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Condominium Assessment Liens in Florida, Part II: Perfecting Condominium Liens

The Florida Condominium Act sets forth the process and procedure for perfecting a condominium assessment lien for delinquent assessments. A condominium lien creates an interest in real property in favor of the association. In many instances, it has been said that the association has a “perpetual” right to lien, so long as the association remains in existence. The condominium lien will take its priority in right based on the date the declarations were recorded. Because Florida association liens require the inclusion of a legal description, and liens create real property rights, only attorneys who are members of The Florida Bar may draft liens. A non-Florida attorney’s preparation of a lien on Florida real property constitutes the unauthorized practice of law. This is so, even if the non-attorney is a licensed community association manager. See The Florida Bar re Advisory Opinion — Activities of Community Ass’n Managers, 681 So.2d 1119 (Fla. 1996). Read Full Post

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Is Your Association’s Declaration Stuck in the Past?

Florida’s community associations are largely governed by two main sources of authority: (1) the Florida Condominium Act (for condo associations) and the Florida HOA Act (for homeowners’ associations); and (2) the association’s governing documents. While court opinions, State of Florida arbitration decisions and the Florida Administrative Code also govern community associations, these sources largely rely on the Florida Statutes, association governing documents, or both, for any given issue. Concerning the hierarchy of this authority, the Florida Condominium Act and the Florida HOA Act (collectively referred to as the “Acts”) will trump community association documents (i.e., declarations, bylaws, articles of incorporation and rules and regulations). Stated another way, the Acts ultimately have the final say if the governing documents are silent or contradict the Acts on any issue. Because association documents are subordinate to the Acts, an association’s declaration that does not contain Kaufman Language is stuck in the past. Read Full Post

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Condominium Assessment Liens in Florida, Part I: Authority for Condominium Liens

A condominium association’s governing documents in conjunction with Section 718.116, Florida Statutes, are the genesis of the condominium association’s authority to impose and perfect assessment liens against individually owned units and parcels within the community. This four-part blog will discuss the condominium association’s right to lien, perfecting the condominium association lien, and collection practices for condominium associations. Part I will discuss the condominium association’s authority for asserting liens. Read Full Post

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Effective Document Retention in the Construction Industry

Often leaders in organizations view a document retention policy as simply a written document that a company creates or obtains and then saves on its server with every other document the company has created or obtained and now retains. Best practices dictate that an effective document retention policy be seen as a living, breathing policy memorialized in writing that is to be thoughtfully created, managed, communicated to and understood by everyone at every level in the organization—starting at the top. Read Full Post

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