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Law360, New York (June 25, 2014, PM EDT) -- Based on the recent influx of mortgage foreclosure actions in Florida, banks and lenders (mortgagees) have acquired ownership of thousands of condominium units and properties located within a homeowners association.

After acquiring title, mortgagees have certain liability for assessments associated with owning these properties.

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This includes the Florida Condominium Act (Chapter 718 of the Florida Statutes)[1] as well as numerous court opinions and agency rulings by the Florida Division of Condominiums, Timeshares and Mobile Homes.

[2] Living the condo life is different from living in a suburban community, a rural setting, or even other kinds of communal living options.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice.

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The condominium can be self-managed, or the Condo Association can hire a third party manager to manage things.

If there are over 10 units or an annual budget exceeding 0,000, then Florida law requires that this manager be licensed by the State of Florida as a “Community Association Manager”. For instance, the Condo Board has the right to enter the individual condo units of every condo on the property, a threat to privacy that someone living in a single family home will not face.

Since the subsidiary was neither a foreclosing mortgagee nor a subsequent holder of the first mortgage, but was instead an assignee of the final judgment, it was not entitled to the safe harbor protections under the statute's terms. Answer: Yes, but the extent of liability depends on whether the foreclosing association acquiring title was an HOA or a condominium association.

the entry of the final judgment of foreclosure so the affiliate or other third party would then be the "subsequent holder of the first mortgage" (as the statute requires) and thus be entitled to the statutory safe harbor. If a mortgage is recorded after July 1, 2008 (in the HOA context) then the claim of lien "relates back" to the date the Declaration was filed. However, as to first mortgagees, the lien is effective after a claim of lien is recorded in the public records of the county where the property is located. 1995), where the Florida Supreme Court held "in order for a claim of lien recorded pursuant to a declaration of covenants to have priority over an intervening recorded mortgage, the declaration must contain : HOAs should make a practice of recording liens against homeowners in the public records to put third parties on notice of the lien. Lenders should name HOAs as a defendant in the mortgage foreclosure action in the initial complaint so as to obtain the limitation on first mortgagee liability set forth in Florida Statutes Section 720.3085 (2)(c) (the "Safe Harbor"). As to HOAs, effective July 1, 2013, a foreclosing HOA is not liable for past due assessments after it acquires title to a parcel.

The most important action servicers can take in addressing this issue, not surprisingly, is foresight and preparation by putting procedures … Continue Reading The mortgage lending community was dealt a serious blow in September 2014, when the Nevada Supreme Court held that an HOA’s foreclosure of its nominal super-priority lien could extinguish a first lien interest in SFR Investments Pool 1, LLC v. Continue Reading As the lending community is well aware, the mortgage industry in the state of Nevada remains in flux. Continue Reading The first Nevada state court ruling on the federal Housing and Economic Recovery Act (HERA) holds that a deed of trust owned by a GSE cannot be extinguished by a homeowners’ association’s (HOA) foreclosure sale, a promising development for Fannie Mae, Freddie Mac, and lenders embroiled in quiet title cases with purchasers from HOA foreclosure … As addressed in our prior blog posts, those shockwaves continue to reverberate … Numerous arguments are currently being raised by the mortgage community, such … District Court for Nevada issued significant decisions in three cases, holding that a foreclosure on a Nevada HOA’s super-priority lien could not extinguish a deed of trust securing a debt owned by a Government-Sponsored Enterprise (GSE). In SFR Investments, the Nevada Supreme Court held that a homeowners association (HOA) lien is a true … Continue Reading On May 28, 2015, Nevada Governor Brian Sandoval signed into law Senate Bill 306, which will fundamentally alter the HOA foreclosure sale landscape in Nevada. Bank (holding that NRS 116.3116 was a true priority lien and an HOA foreclosure … However, recent decisions from the state and federal courts in …

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