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Is There a Rule of Civil Procedure or Florida State Statute That Allows an HOA to Pass on its Co-Defendant Legal Costs to a Homeowner During the Foreclosure Process?

Under Florida law, whether through foreclosure or deed-in-lieu, both the previous and the new owner are jointly and severally liable for all unpaid assessments that come due prior to the transfer of title. In a bank foreclosure, the statute’s “Safe Harbor” provision limits your lender’s liability, requiring them to pay the association only up to one year’s worth of past due assessments or 1% of the mortgage—whichever is less—when the foreclosure is complete. When it comes to how and when money is collected from homeowners, your HOA’s authority to make assessments is governed by the HOA’s own declarations and bylaws as well as statutory rules imposed by the state. State statute entitles HOA’s to collect any late fees, interest accrued and attorney fees incurred as a result of past due assessments; however, your HOA has no statutory basis to collect attorney fees as a result of being a named defendant in your bank’s foreclosure suit. Because associations can potentially file a lien for assessments at any time, lenders routinely name HOA’s as defendants whether or not the association filed a lien against you for past due assessments. There is no statutory law or rule of civil procedure that entitles an HOA to pass on legal fees to a co-defendant. Unless your HOA’s declaration and bylaws expressly state otherwise, your association cannot legally pass on attorney costs for doing business as usual—that is, being named in a foreclosure suit. If you are up to date on your assessments, but your association has requested that you cover legal costs pertaining to your foreclosure, consult with an experienced foreclosure attorney in order to examine your association’s bylaws and ensure your interests are being protected. Stephen K. Hachey, a Florida real estate attorney can help your wade through this process and determine a positive solution. Contact him at 866-200-4646. The opinions in this post are solely those of the author. The author takes full responsibility for the content. Like all blog posts, this is offered for general information purposes and does not constitute legal advice. This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.