While many areas of the country have experienced a drop-off in foreclosures—initial filings, foreclosure auctions and bank owned properties, the state continues to sift through the backlog of foreclosure cases.
Most people know that mortgage lenders and local government can create liens that require foreclosure action, but many people don't know that condominium and homeowner's associations (HOAs) also can create liens that require them to avail themselves of foreclosure laws in Florida. HOAs have specific legal rights and powers over properties in the community.
This authority includes initiating the Florida foreclosure process for issues related to delinquent monthly fees, dues and special assessments.
Under Florida laws, when a property owner becomes delinquent on fees, a lien automatically becomes attached to the homeowner property as of the date the assessment became due. The HOA records a lien at the county recorders’ office, which provides a public notice that the lien exists. It may include:
The lien puts a “cloud” the title to the property, which obstructs the homeowner’s ability to sell or refinance. The HOA has 90-days in which to file foreclosure action to enforce the line, but cannot file the paperwork until 45 days after the owner has been provided notice of the association’s intent to foreclose and collect the unpaid amount. Failure to file the lawsuit means the lien becomes void after 90-days.
Since Florida is a “judicial state,” the HOA must file a lawsuit to obtain a judgment from the court. The HOA can foreclose on the property and take title subject to the right of the first mortgagee.
The property will continue to have the encumbrance from the lien of the first mortgage. The HOA will have to take additional action to work with the lender to eliminate the mortgage on the property. However, the HOA can lease the unit at market value to recover the costs of the unpaid assessments.
Once the HOA officially forecloses on its lien for unpaid assessments, the borrower remains responsible for making the mortgage payments. The first mortgage lien and any tax lien hold a superior position to the HOA’s lien. The HOA also takes on the responsibility for or taxes, utilities, insurance and maintenance. The HOA must secure the unit and ensure the systems are functioning properly
Under a new law, a lien holder such as a homeowners’ association can request the court for an expedited foreclosure. This will give you less time to pursue the available options for keeping your home, including
1. Applying for a loan modification
2. Arranging another solution to avoid foreclosure, such as a short sale transaction or a deed in lieu of foreclosure
If you are having financial challenges and looking to find a solution to avoid foreclosure, you should move immediately to try and work out a solution for your overdue HOA assessments to prevent the acceleration of the foreclosure process.
Contact an experienced attorney who can help clarify what your option are for keeping your home. You may be eligible for a loan modification or other solutions. You must act quickly if you are already in Florida's foreclosure process. If you're not sure exactly where you stand in the foreclosure process, click below to download the Florida foreclosure timeline.
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