Perhaps the most critical legislative change contained in SB 56 likely to affect all associations at one time or another is a new requirement that associations send owners who have become delinquent a sort of “courtesy” notice advising of their delinquency prior to requiring payment of any attorney fees for collection to be paid by the owner. Currently, there is no actual statutory requirement that an association first notify an owner of their delinquency before sending the account to the attorney (even though many associations already routinely do so.)
However, SB 56 amends the Florida Statutes governing community association “pre-lien” collection practices to now require associations to first send a delinquent owner a “Notice of Late Assessment,” specifying the amount due on the owner’s account and providing the owner 30 days to pay that amount before any “further collection action” (i.e., attorney collection efforts) and attorney fees for collection are charged to the owner. Form language for these notices is included in the legislation, and, unless the association substantially follows this language, subsequent collection efforts by the association attorney are likely to be negatively impacted. Further, the legislation creates a rebuttable presumption that the “courtesy” notice was mailed if a board member, officer, agent, or licensed community association manager “provides a sworn affidavit attesting to such mailing.” This means that associations will need to have forms prepared and ready attesting that the notice was mailed to each owner it sends to the association attorney for collection.
Secondly, the legislation prohibits associations from changing the method of delivery of invoices or statements of account to owners unless it first sends written notice to each owner by first-class United States Mail at least 30 days prior to changing the method of delivery, and the owner must “affirmatively acknowledge” his or her understanding that the association will be changing its delivery method before the change is implemented for any particular owner. These “affirmative acknowledgements” from owners will now be included in the list of official records associations must maintain, however, will not be accessible by unit owners for inspection. One practical—and likely troublesome—effect of this new requirement is that associations may very well be required to send invoices and statements of account by different methods to different owners; one for owners who have affirmatively acknowledged their understanding, and another for owners who have not.
Finally, of particular importance to condominium and cooperative associations, the legislation increases—from 30 days to 45 days—the statutory time period that pre-lien and pre-foreclosure notices must be delivered to delinquent owners. These new time periods are consistent with those already in place for homeowners’ associations governed by Chapter 720.
Although the foregoing changes to Florida Statutes governing community association maintenance/assessment collection practices may impact some communities more than others, all community associations collect assessments to fund their operations. As a result of SB 56, new policies and practices for collection will need to be implemented, and associations are strongly encouraged to consult with their legal counsel to ensure compliance with these new requirements.
Brian T. Meanley, Esq.
SACHS SAX CAPLAN, P.L.
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