As most of us are by now familiar with, in 2021 the Florida legislature enacted significant statutory changes to Chapters 718, 719, and 720, requiring a new notice to delinquent owners that must be mailed by an association before demanding payment of attorney’s fees related to the collection of unpaid assessments. Since July 1, 2021, the effective date of the legislation, most associations and management companies have experienced preparing and sending the Notice, or “NOLA.”
However, some questions remain which create a gray area and which leave association boards and managers to navigate the potential risk of failing to strictly comply with the content requirements of the statute as no case law currently provides guidance.
So, this question from boards and managers frequently arises, “We prepared and mailed this notice; does it comply with the statute?”
Properly preparing and mailing the NOLA saves time and money as well as reduces the risk that an owner can effectively and successfully challenge the association’s compliance with the statute. If a NOLA does not comply with the statute, at best it must be re-sent prior to demanding payment for attorney’s fees incurred in collections, resulting in at least a 30-day delay. A NOLA which does not comply with the statute could be the basis for an owner making a claim that the association violated fair debt collection laws by attempting to collect a debt which was not actually owed or slander of title if a claim of lien has been recorded based on a noncompliant NOLA, among other possible claims.
Fortunately, Sections 718.121(5), 719.108(3)(c), and 720.3085(3)(d) Florida Statutes, provide the same form and state that the Notice “must be in substantially the following form”; however, there is still room for interpretation.
The Notice of Late Assessments must include the following information:
NOTICE OF LATE ASSESSMENT
RE: Unit of (name of association)
The following amounts are currently due on your account to (name of association), and must be paid within 30 days of the date of this letter. This letter shall serve as the association’s notice to proceed with further collection action against your property no sooner than 30 days of the date of this letter, unless you pay in full the amounts set forth below:
*Interest accrues at the rate of percent per annum.
Although required in the form, many associations neglect to include the due dates for the maintenance or assessments being demanded. We advise that an association must include the due dates for the “maintenance” (or “assessments”). Although there is no case law addressing this issue, many associations choose to attach an accounting ledger to the NOLA, providing the due dates, description, and amount due for the assessments. We also recommend distinguishing “regular” assessments from “special assessments” as separate line items as applicable.
Late fees may be included if the governing documents for the association authorize late fees. We recommend reviewing the declaration and bylaws for the association to confirm entitlement to charge late fees before including them in the NOLA. Late fees must also be no greater than the maximum allowed by the applicable statute.
Interest may be calculated and included to the extent the association chooses to do so. The rate may be designated in the association’s governing documents or may default to the statutory 18 percent per annum if no rate is specified. If the association chooses to not include an interest total, we recommend the association must include the rate of interest as required by the form, “Interest accrues at the rate of ____ percent per annum.”
In the absence of case law on this issue, we recommend adhering strictly to the form, language, and types of charges allowed in the statutory form. Although arguments may be able to be made for variation in the language and inclusion of other charges such as administration fees, following the statutory form as closely as possible will most effectively reduce the risk of an owner successfully challenging your NOLA.
To read the original FCAP article, please click here.