One of the more significant provisions in the Legislative changes for 2010 was the authorization of an association to compel the tenant of a non-paying owner to pay the rent directly to the Association or face eviction. While in concept, the authority that has been created by these statutory changes can be beneficial to struggling associations, there are common situations in existence in many communities that will make pursuing the full enforcement available in the Statute problematic.
Many of the instances of the tenant failing to pay the rent are situations when the association has not approved the occupancy in advance. Consequently, association records do not contain the pertinent information regarding the tenancy. By way of example as to how the lack of information creates a problem, Section 83.56(3) of Florida Statutes (within the “Landlord Tenant Act”) provides that if the tenant fails to pay rent, a 3-day notice is required to be posted at the property. The Statute contains a form for the 3-day notice which must be substantially complied with in order to proceed to an eviction if payment is not made. One of the provisions of the notice is the specific amount of the rent that is unpaid. If this information is unknown, the 3-day notice can be found to have failed to substantially comply with the requirements of the Statute. In that event, the association would be unable to secure the eviction.
Another important consideration to the association that is missing from the statutory provisions is the handling of the costs and attorney’s fees of the association in the eviction process. While the Landlord Tenant Act contains a prevailing party attorney fee recovery provision, this applies between the landlord and the tenant. A fee award can be obtained against the tenant, but once they have moved on, collecting a fee award may prove unlikely. There is no provision for charging the fees and costs against the delinquent unit owner, preferably as an assessment against the unit.
To best address the deficiencies of the statutes, as it applies to those tenants who participate in the approval process of the association, we recommend the use of the separate Authorization Agreement to Collect the Rent as a condition to the approval. The terms contained in this document cover all of the statutory authorizations, as well as provides for the recovery of attorneys fees and costs from the delinquent owner, as an assessment. We are available to discuss and/or provide such a form document for the Association.
