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

Written by: Kaye Bender Rembaum

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…[Read the rest]