In June, we notified readers that beginning July 1, 2021, the Florida Statutes would begin requiring a Notice of Late Assessment (“NLA”) as the new “first step” in the community association assessment collection process. See Florida’s Legislature Gets One Right and a few Wrong. We broke down the basics of the NLA, but subsequent client communications indicate that there is still some confusion, which is understandable given the vague drafting of the statutes. To clarify, the NLA is the first statutory collection notice which must be issued by any Florida community association before proceeding with a pre-lien notice.
Some clients have expressed confusion as to whether the NLA should be sent by the Board/management, or by counsel. The statutes is silent on this issue, so in reality, this is the Board’s decision. In deciding, we suggest considering the fact that the attorney’s fees incurred sending this letter cannot be included in the amounts sought in the NLA, and thus having the Association – not counsel - issue the NLA. Moreover, while some attorneys argue that the statute does not preclude “tacking on” those attorney’s fees once the NLA expires without full payment, the statutes could be read to vaguely imply - but do not state - that attorney’s fees associated with the NLA cannot be charged to owners at all. As our clients have seen, we are as aggressive as reasonable in our assessment collection efforts; however, if a judge finds a statutory presuit assessment demand invalid (including the NLA, Intent to Lien letter, lien, or Intent to Foreclose letter), the Association could lose its foreclosure lawsuit. In that event, the judge could refuse to allow the foreclosure, and the Association could be held responsible not only for its own attorney’s fees and costs, but also those incurred by the owners in defending the lawsuit. Worse yet, if a judge finds that these amounts could not be charged to the owners, the Association’s “inaccurate” demand could ostensibly result in a fair debt claim against the Association, management, and/or the law firm and its individual employees.
The statutes also create a rebuttable presumption that, if the Association’s records include an affidavit confirming that the NLA was mailed to the owner, the NLA was in fact mailed. This presumption shifts the burden to the owners to prove that the NLA was NOT sent (which they are unlikely to be able to do). Accordingly, such affidavits provide associations significant protection; while not required, they are highly recommended. The confusion regarding this affidavit stems from the fact that the statute does not specify whether it must be signed immediately, or if it can be signed and added to the Association’s official records months or years later (e.g., once it’s needed to disprove an Owner’s argument that the NLA was not sent). Signing the affidavit on the date of mailing enables the signor/mailer to confirm that they personally deposited the letter in the mail. That would be difficult if not impossible to remember (and thus easy to attack in court) if the affidavit is prepared later; preparing it later would thus ostensibly require that the affidavit (and thus, the Association) rely on less reliable, but still legally sufficient business records instead of personal knowledge.
Given the complex interpretation of the vague statutes governing the NLA and affidavit, we have offered to prepare NLA and affidavit forms for our clients’ use, as well as instructions for how to fill out both documents