Page 15 - Boca Viewpointe - December '19

December 2019 Viewpointe, Page 15

Should Associations Amend Their Documents

To Address Mortgagee Liability For Assessments?

Located within most associations’ governing documents In order to make sure that your association will be able purchaser liability issues in homeowners’ associations, and,
are provisions that benefit mortgage holders including, to take advantage of statutory changes making purchasers notably, many of these cases have turned on whether or
typically, provisions that make association liens inferior responsible for the payment of assessments that were not paid not the homeowners’ association involved had amended
to first mortgage liens. Often these provisions state that by a home’s previous owner, associations are encouraged to its governing documents to incorporate the assessment
foreclosure sale purchasers are not responsible for paying review their governing documents with their legal counsel liability statutes that it was attempting to enforce. In
assessments that came due before such purchasers obtain and to, where necessary, amend them to incorporate the contrast, condominium associations have not recently been
title. In contrast, the Florida Statutes affecting both assessment collection and lien rights found within Florida the subject of such cases. Nevertheless, it is still possible
homeowners’ associations and condominium associations Statutes. Doing so is more important for homeowners’ for condominium associations that have not amended
contain provisions that can be interpreted to hold foreclosure associations than for condominium associations because, their governing documents to be challenged on purchaser
sale purchasers—including foreclosing lenders that obtain while the condominium statute (Chapter 718) has contained assessment liability, and condominium associations which
title—responsible for the payment of at least a portion of purchaser assessment liability provisions for decades, are amending their governing documents for other reasons
assessments which were not paid by a home’s previous the homeowners’ association statute (Chapter 720) was are encouraged to consider including an amendment adopting
owner. silent on purchaser assessment liability until July 1, 2007. Chapter 718’s collections provisions.
Ordinarily, when an association’s governing documents Accordingly, purchasers at mortgage foreclosure sales arising Before deciding whether or not to attempt to amend your
conflict with the state statutes, the statutes should be from mortgages given in homeowners’ associations before association’s governing documents, it is important to consult
followed. However, an exception to this general rule applies this date, including foreclosing lenders, have successfully with your association’s legal counsel to confirm that doing
when the governing documents have provided contractual argued that, in the absence of an amendment incorporating so would be beneficial and to ensure that the association’s
rights which would be impaired if later-enacted statutes are the statute, they are not responsible for paying assessment actions meet the requirements of law.
followed. In such cases, the governing documents control balances left over from a home’s previous owner.
and the statutes are not applied. Several recent appellate cases have reviewed foreclosure Sachs Sax Caplan, P.L., Peter S. Sachs 

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