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Offices in Miami-Dade (by appointment)
Reach any office: 800.974.0680

1200 Park Central Blvd. S., Pompano Bch, FL
9121 N. Military Trail, Ste. 200, Palm Bch Gdns, FL
11486 Corporate Blvd., Suite 130,Orlando, FL
1211 N. Westshore Blvd., Ste. 409, Tampa, FL
Offices in Miami-Dade (by appointment)
Reach any office: 800.974.0680

Legal Morsel | Court Concludes That Mistakes on a Claim of Lien Does Not Invalidate the Claim


The Florida Fourth District Court of Appeal recently provided a ruling regarding the ability of a homeowner’s association to successfully complete a foreclosure for unpaid assessments when there was an error in the amount indicated as being owed on the claim of lien.  In the case of Pash v. Mahogany Way Homeowners Association, Inc., Case No. 4D19-3367, January 27, 2021, the Appellate Court was faced with the challenge of a lower court ruling in favor of the homeowner’s association in which the homeowner, Mr. Pash, had claimed that the amount indicated on the claim of lien was overstated from what was owed.  The record also reflected that the homeowner’s association admitted that it made a mistake in its calculation of the assessments on the lien but corrected the amount when it filed the foreclosure case.  It was not disputed that some assessments were delinquent when the foreclosure case began.

In a split decision, a majority of the Court focused on the requirements of Section 720.3085(1)(a) of Florida Statutes, as well as the provisions of the Declaration of Covenants for the Community.  The Statute provides the following:

To be valid, a claim of lien must state the description of the parcel, the name of the record owner, the name and address of the association, the assessment amount due, and the due date.  The claim of lien secures all unpaid assessments that are due and that may accrue subsequent to the recording of the claim of lien and before entry of a certificate of title, as well as interest, late charges, and reasonable costs and attorney fees incurred by the association incident to the collection process.  The person making payment is entitled to a satisfaction of the lien upon payment in full.

While the case was reversed for other reasons, the majority of the Court stated that “Nothing in section 720.3085(1)(a) suggests that the claim [of lien] must be free of error for it to serve as an otherwise valid claim of lien.”  The Court also concluded that the statute, as written, does not provide that an error in the amount stated in the claim of lien invalidates an otherwise valid claim by an association.  Rather, the Court indicated that the association is merely asserting “a claim” in the lien and the association remains obligated to prove its claim in order to prevail in its case and homeowners have the ability to contest the claim made.

The Florida Condominium Act contains substantially the same provision as set forth above in Section 718,116(5)(b) F.S.  Consequently, it is anticipated that a lower court would likely apply the conclusions of this case to a condominium association foreclosure case.

It remains to be seen whether this holding is going to be viewed as an anomaly or will be followed by the remaining District Courts in Florida.  Notwithstanding this easing of the perception of association requirements on this point, it remains the recommendation that all collection efforts by associations be fully documented to a “zero” balance on the specific homeowner account to minimize any possible adverse conclusion in an assessment foreclosure case.  Legal counsel familiar with community association law should be involved to assist in the formal collection efforts against any homeowner.

Florida’s 2021 HB 7, SB 72 and SB 630

The following Florida House and Senate Bills were referenced during our February 17, 2021 appearance on KW Property Management & Consulting’s webinar:

House Bill 7 (HB 7) | Civil Liability for Damages Relating to COVID-19; Provides requirements for civil action based on COVID-19-related claim; provides that plaintiff has burden of proof in such action; provides statute of limitations; provides retroactive applicability.

Senate Bill 72 (SB 72) | Civil Liability for Damages Relating to COVID-19; Providing requirements for a civil action based on a COVID-19-related claim; providing that the plaintiff has the burden of proof in such action; providing a statute of limitations; providing severability; providing retroactive applicability, etc.

Senate Bill 630 (SB 630) | Community Associations; Prohibiting insurance policies from providing specified rights of subrogation under certain circumstances; authorizing a condominium association to extinguish discriminatory restrictions; providing requirements for natural gas fuel stations on property governed by condominium associations; authorizing parties to initiate presuit mediation under certain circumstances; revising the allowable uses of certain escrow funds withdrawn by developers, etc.

KBR Palm Beach Gardens to Host “Ask the Attorneys” on Thursday, Feb. 18th | Live on Zoom

On Thursday, February 18th, 4:00pm to 6:00pm, attorneys from our Palm Beach Gardens office will host, via Zoom, a live “Ask the Attorneys” event. You will determine the course of discussion for the evening in this town hall-style format. While we look forward to holding these in person in the near future, we will join you on Zoom, back by popular demand!

Click HERE to reserve your free seat.

Covid Vaccine, National Relief & Legislative Updates for Community Associations | February 17th

Click the image to enlarge

On Wednesday, February 17th KBR joins KW Property Management & Consulting for a LIVE Webinar with US Congressman Ted Deutch, from Florida’s 22nd Congressional District. Rep. Deutch will be offering us updates on vaccinations and the new relief package coming from Washington, DC.

Attorneys Jeffrey A. Rembaum and Michael S. Bender from Kaye Bender Rembaum will speak about what community association legislation is currently being discussed in Tallahassee and what board members need to be aware of.

Pre-registration for this webinar, taking place on February 17th at 3:00 PM is required. You can register by clicking HERE.

Hosting Virtual Meetings via Zoom

The most asked question of 2020 is this: Can our association host our board and annual meetings using Zoom or another similar virtual/electronic platform? There is no doubt that technology will always advance faster than legislation. In fact, advances in technology seem to take place in light speed whereM as advances in legislation seem to travel at the speed of your average turtle.

As to board meetings, §718.112(2)(b)5 of the Condominium Act provides, “A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting.” Note that similar provisions are provided for cooperative associations in… Read the rest in Rembaum’s Association Roundup

Association Leadership | Season 2; Episode 9 | Kaye Bender Rembaum Joins Castle Group on Feb. 3rd

Castle Group invites you to join us for Season 2, Episode 9 of Association Leadership: “Part 2 of Navigating Annual Meeting Pitfalls”. The live webinar will be hosted by Craig Vaughan, Castle Group President, who will be joined by Attorneys Jeffrey A. Rembaum & Michael S. Bender- Kaye Bender Rembaum, each Board Certified Specialists in Condominium and Planned Development Law. There will be a Q&A with Florida’s Condominium Ombudsman,
Spencer Hennings.

Wednesday, February 3, 2021  |  12:00 PM – 1:00 PM

HOA Board Member Certification on February 16th!

February 16, 2021 at 5:30pm

This webinar covers the essentials of HOA board membership, and is updated regularly to remain current with Florida legislative amendments. In addition, this webinar satisfies Florida’s requirement for new HOA board members. It also serves as an excellent refresher course. Licensed CAMS will receive two (2) CE credits as IFM or ELE.

Course # 9630140 | Provider # 0005092 | 2 CEs in IFM or ELE
Instructor: Emily Gannon, Esq.

Financial Screening of Purchasers: How Far Is Too Far?

A few months back a case came before the county court in the 20th Judicial Circuit for Collier County, wherein a prospective buyer challenged the validity of a board-adopted rule which required that all prospective buyers provide two years of tax returns with their application for ownership approval. This requirement was in addition to the background check and credit check that were also required. While this is only a county court case and, therefore, has no precedential value other than to the parties themselves, there are principles addressed of which associations and managers should be aware; even though many learned attorneys would opine that the conclusions of the court are legally flawed under the facts of the case and, if appealed, would likely be overturned. Nevertheless, there are still nuggets of knowledge that can be gleaned from this case.

In this case, Mech v. Crescent Beach Condominium Association, Inc., Case No. 19-SC-3498, decided June 2020, the purchaser, who was the plaintiff, was seeking to buy a unit at Crescent Beach Condominium for $400,000, which was to be paid in cash. The purchaser purportedly had a clean background and a credit score of 800. Nonetheless, the board required that, like all other prospective purchasers at the condominium, this purchaser needed to produce his tax returns in order for the association to approve the transfer. The purchaser refused to provide his tax returns and cited his good credit score and clean background as evidence enough for approval. Eventually, an impasse was reached, and the purchaser canceled the contract. Then he brought the county court lawsuit challenging the requirement. (Generally speaking, typically under current Florida law, the purchaser would not have legal standing to even bring the claim against the association; but it does not appear that this legal infirmity was raised by the association, which allowed the case to proceed.)

The purchaser challenged the rule, arguing that the rule was not within the scope of the association’s authority to adopt, nor did it reflect reasoned decision-making. (It is noteworthy to point out that, after…

Back by Popular Demand – Guest Restrictions Webinar Presented on January 14th

Jan 14, 2021 at Noon

Join attorney Peter C. Mollengarden for a one-hour webinar addressing the authority to review and approve tenants and owners, including issues related to transfer fees/security deposits, potential “good cause” to deny an applicant, restricting guest occupancy, and common pitfalls in the “screening” process.

Course # 9630142 | Provider # 0005092 | 1 CE in OPP or ELE
Instructor: Peter C. Mollengarden, Esq., B.C.S.

KBR presents the Condominium Association Board Member Certification January 19th, Free and Live via Zoom

This webinar covers the essentials of condominium board membership, and is updated regularly to remain current with amendments to Florida legislation. In addition, this webinar satisfies Florida’s requirement for new condominium board members. It also serves as an excellent refresher course.
This course is for Condominium Association Board Members only.

Jan 19, 2021 12:00 PM

Instructor: Andrew B. Black, Esq., B.C.S.
Course #: 9630075 | Provider #: 0005092
CAM CE credit: 2 credits in IFM or ELE