The HOA had foreclosed on the previous owner and got title, but later, the Bank foreclosed, and I bid & won the county foreclosure auction and got title.
1. There is a question whether the HOA lien is remedied or wiped out by the HOA's foreclosure. There is no general consensus about this issue, it seems. For instance, http://www.avvo.com/legal-answers/does-a-hoa-foreclosure-extinguish-the-hoa-lien--af-674952.html
2. Regardless of #1, from my understanding, when it took title, the HOA became responsible for all previous and current dues. Therefore, the HOA can not collect these dues from the subsequent owner (me), because they had a duty to make assessments current like any other buyer, and it would be unfair to treat themselves differently.
Is lien still valid? How to remove lien?
One attorney said I should pay the entire balance (HOA lien + hoa attorney fees + past/current fees), and this will remove lien. Another attorney is telling me we should file a "Quiet Title Action", and if the HOA responds, they won't have any defense to the amount due (for reasons listed above), and as a result I should get a clean title from the Quiet Title Action. Can and will this work? FIrst attorney will charge less (but I pay more), but second attorney is not guarnteeing outcome. So, now I am left in this situation where I don't know what to do. I thought the law is clear, but it's not clear enough to prevent me from paying a whole bunch one way or another. Would a title search/report show that this lien is still present and valid? Should I even have to do anything in this case? HOA sent me a ledger about the property showing it's 16k behind, but no formal demands, lis pedens, etc. Should I wait longer?
That's precisely why it's still called the "practice of law", sometimes problems may have more than one viable solution. Regardless of the way you decide to go, if you haven't already, I suggest obtaining an opinion of title to determine the validity and extent of liens. Remember, the gold standard is what will happen if you want to sell this property. If you can sell this property to a buyer who can obtain title insurance, then nothing else really matters.
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No attorney could possibly guarantee the outcome of your question. However, the fact that the HOA foreclosed and owned the property for some period of time DOES NOT wipe out the balance due. The balance travels with the interest in the unit, so is now your obligation. During the period when the association owned the property it was responsible to pay just like any other owner. While itt may also be the association's obligation to pay the arrears as well as yours, the association can, and will no doubt proceed to file a lien against you and then commence foreclosure of the lien. The statute is less than clear about whether the association's ownership of the property would prevent it from collecting against you, or prevent you from seeking recovery from the association. One thing you can be sure about is that you will be embarking on a major and expensive piece of litigation, which I am sure the association's attorney will take very seriously and fight you to the last appellate court that will hear it, since if the outcome is that the HOAs ownership of the property was to wipe out its ability to collect th balance from a subsequent owner, that would impair HOAs' ability to collect what is due in delinquent assessments on foreclosed units. That results in a major policy battle which they are virtually obligated to fight.
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
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Florida Statutes, Chapter 718.116 Assessments; liability; lien and priority; interest; collection.—
This statute is from Chapter 718 dealing with Condo Assocations. We don't know if you bought a condo or a house. But whether a house or a condo, if these assesment/liens are not covered by the statute, it is probably covered by a declaration that was written by the developer's attorney way back when. These declarations go with the land and if you die 80 years from now and your grandson inherits it, he will be liable.
Basically, from what information I have from your question (so this answer is not guranteed) you are defnitely liable for future assessment/dues/fees from the HOA. I'm sure of that becasue you are now the owner. As far as past dues and fees, probably you, the bank, the hoa, AND the previous owner are ALL liable. Whoever owned the property, was supposed to pay the assessment/fees/dues. So your big issue it seems is that maybe they want you to pay ALL OF IT because the bank and hoa and previous owner did not pay for PAST dues. It could have been deliberate, it could have been accidental. The statute says joint and several liability for condo associations, which means EVERYONE is liable for the full amount. That does not mean if $5,000 is owed, then everyone pays $5,000 each, for a total of $20,000 rather it means the HOA can collect $5,000 from one person or $2,500 from 2 people or $1,250 from 4 people. But if you are paying the whole $5,000 then you have a cause of action and can sue the other people (bank, hoa, previous owner) who is liable. In the meantime, you have to pay current dues. You can choose not to pay past dues if you want, but the HOA attorneys will send you notices and sue you. You could pay the past assessments and sue to get them back. You can wait and defend or counter-sue IF YOU BELIEVE YOU ARE NOT LIABLE FOR THE FULL AMOUNT OR THER IS SOME OTHER DEFENSE that I'm not going to get into typing for the next 3 hours. HOA's can be very nasty and there are very few defenses if an HOA or Condo Association sues a unit owner. There are defenses, but not nearly as many as when a bank sues for foreclosure. This is a scenario I created based on what you wrote, so don't hold me to it. If you hired an attorney before you bought, they did not inform you. If you did not hire an attorney, you are learning.:-) Call if you like. If I am away from the phone. I will get back to you. Great question thank you.