Third-party purchaser may not be liable for assessments accrued prior to the date the purchaser takes title to a property.

Over the past two years, there has been much debate over the interpretation and applicability of F.S. §720.3085 regarding the past due assessments owed by a third-party purchaser who acquires a residence through the foreclosure process. F.S . §720.3085 states that a third-party purchaser, or any purchaser, will be jointly and severally liable for past due assessments and/or amounts due on the property at the time the purchaser obtains title. The court in Westwood Gardens held the Declaration of Covenants controlled—not Ch. 720—and that the third-party purchaser is not liable for assessments accrued prior to the date the purchaser takes title to the property. Accordingly, the HOA could not seek delinquent assessments, attorney’s fees, costs, late fees and interest which accrued prior to the date the purchaser obtained title. This decision will potentially have significant ramifications for HOAs regarding how much they can seek in past due arrearages from a new owner taking title via a foreclosure sale. Condominium/HOA advocates will argue that, although the court held that the HOA could not collect past due assessments against the new owner, the focus of the court’s reasoning was based upon the reading of the HOA’s Declaration, which provided, “[t]he personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them.” This language is not typically contained in HOA Declarations of Covenants in Florida. Furthermore, if the Declaration includes “Kaufman Language” incorporating revisions to F.S. §720, which was not the case in Westwood, the statute may control and a third-party purchaser could be jointly and severally liable with the former owner, i.e. the HOA can seek and collect past due amounts.

_{Case Law Alerts, 4th Quarter, October 2015}

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