Condominium Foreclosure & Entitlement Assessments
In Losner v. The Australian of Palm Beach Condominium Association, Inc., the Fourth District Court of Appeal recently held that a condominium association may not foreclose and collect on special assessments in addition to the quarterly assessments when the special assessments are not contained within the association’s condominium foreclosure pleadings, i.e., the complaint, response to interrogatories, etc.
In section 718.116(5)(b), Florida Statutes, states that a claim of lien by a condominium association for unpaid assessments “secures all unpaid assessments that are due and that may accrue after the claim of lien is recorded and through the entry of final judgment.” Citing to George v. Beach Club Villas Condo Ass’n, the Losner court found that the aforementioned section does not refer to additional assessments for other purposes, such as separate assessments that are assessed against an owner after the time the complaint to foreclose the lien is filed, and that to allow such litigation would violate an owner’s due process rights.
The holding in Losner makes it clear that a condominium association must plead entitlement to not only the regular maintenance assessments, but also any special assessments in the past and to be incurred in the future. To protect against a similar fate on post-lien condominium foreclosure filings, it is imperative that the condominium association’s attorney include an allegation that the monies secured by the claim of lien include all regular maintenance assessments to the present date, in addition to interest, late fees, costs, attorney’s fees, and any and all additional assessments, both general and special, which have, will and/or may accrue after the recording date of the claim of lien. If the condominium association is currently in litigation, the Losner court’s holding seemingly allows for the allegation of entitlement to additional assessments to be raised in any pleading, which can include the condominium association’s answers to interrogatories. As such, if the condominium association’s complaint does not contain the aforementioned allegation, then it is important to either amend the complaint to raise such entitlement, or provide a detailed response to an interrogatory question on damages highlighting the association’s entitlement to and claim for any and all additional assessments, both general and special, which have, will, and/or may accrued after the claim of lien recordation date.