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Thursday, November 8, 2007

Real Estate Attorney in Aventura Speaks

It's no secret that the City of Aventura is packed with condos. The real estate in Aventura has developed quickly and is supporting our booming town. Unfortunately with growth, problems arise in various unforeseen areas. There are many real estate law issues that need to be highlighted when a city's economy is based on a real estate market. Ilan A. Nieuchowicz is a real estate attorney in Aventura who has submitted an article titled, The Claim of Lien – A Condominium’s Assessment Collection Tool. Our blog is proud to post the work of Ilan Nieuchowicz, the premier Aventura real estate attorney, as the first featured professional contributing content to benefit Aventura residents. Enjoy his work.

The Claim of Lien – A Condominium’s Assessment Collection Tool

The tightening real estate finance sector and dropping property values have left many real property owners in severe financial distress. These market conditions have resulted in increased financial delinquencies amongst thousands of real property owners, including condominium unit owners who have failed to honor their financial responsibilities to their individual condominium associations.

A condominium, as defined by section 718 of the Florida Statutes, is a “form of ownership of real property created pursuant to [Florida law], which is comprised entirely of units that may be owned by one or more persons, and in which there is, appurtenant to each unit, an undivided share in common elements.”1 Under this system of real property ownership, each and every owner of a condominium unit is unconditionally obligated to pay their portion of the common expenses.2

A unit owner’s failure to pay assessments when they become due has a detrimental effect on the association’s ability to meet its budgeted financial obligations, making it difficult to upkeep and maintain the common elements. As a result, the paying unit owners are often left shouldering the burdens of the nonpaying unit owners. To protect condominium associations from reaching this unjust result, the Florida legislature has enacted laws that provide the associations with tools to collect from unit owners who fail to pay their assessments.3

An important and instrumental tool in condominium assessment collecting is the statutory claim of lien.4 Florida Statutes section 718.116 provides condominium associations with the right to impose a claim of lien on an individual unit owner’s condominium property for failing to pay assessments as they become due. This claim of lien establishes the condominium associations priority against the unit owner’s unit and can be foreclosed upon by the association should the debt remain unpaid.

When a condominium is formed via the recording of its declaration of condominium, the condominium association establishes a lien against each individual condominium unit throughout the property to “secure the payment of assessments.”5 Consequently, a claim of lien reverts back and is effective from the date the original declaration was recorded.6 However, if a first mortgage is recorded against the unit, the association’s lien would be effective as of the date the claim of lien was recorded.7

Florida law outlines the necessary elements a claim of lien must contain to be valid.8 Specifically, the claim of lien must clearly describe the land that makes up the condominium, provide the property owner’s name along with the name and address of the association, and illustrate the amount due and the respective due dates.9 Finally, an authorized agent of the association must sign the claim of lien and the claim of lien must be recorded in the public records.10

Once filed with the county recorder’s office, the claim of lien secures the condominium’s assessments, late charges, interest, costs, and reasonable attorney’s fees relating to the collection of past due assessments.11 Generally, the claim of lien remains effective for 1 year, subject to statutory exceptions which may shorten the condominium’s time to proceed with foreclosure to 90 days12 or which may lengthen the time beyond the year.13 Furthermore, Florida statute imposes a 6-month cap on the amount of assessments that can be collected under certain situations. Accordingly, it is imperative that condominium associations timely assert their rights by filing and, if necessary, foreclose upon a claim lien. Acting quickly to recoup unpaid assessments from delinquent unit owners will keep the condominium strong and will help alleviate the financial burdens placed on paying unit owners.

By: Ilan A. Nieuchowicz, Esq.
Roth, Rousso & Katsman, L.L.P.
18851 N.E. 29th Avenue, Suite 900
Aventura, FL 33180
Phone: (786) 279-0000
Fax: (786) 279-0001
Real Estate Fax: (786) 279-0002

Disclosure: Ilan A. Nieuchowicz, Esq. is an associate attorney with the law firm of Roth, Rousso & Katsman, L.L.P., located in Aventura, Florida. Although this article provides legal information, it is not and should not be considered legal advice. This article has been provided solely as an educational tool to provide general insight into the law and is not intended as legal advice or a legal opinion. Because specific factual circumstances may alter the manner in which law is applied and/or interpreted, we strongly recommend that you consult with an attorney to be certain that your interpretation of the legal information provided is appropriate in light of your particular circumstances.

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