The following is an actual case which shows how a manager’s failure to make one phone call to the Association’s attorney ended up costing her Association thousands of dollars in attorney fees.
A unit owner lived alone and traveled for business reasons every month, often for weeks at a time. To avoid accumulating mail in her mailbox, she told the manager (and others) to use her local business office as her mailing address for all association business, but the manager did not note this in her records. The owner did not even have a key to her mailbox. Payment coupons and newsletters that were mailed to the property were returned by the post office. The manager simply filed them in the unit owner’s file without any effort to contact the owner.
After the owner’s maintenance account became delinquent, the manager sent her usual delinquency notices to the property address, but there was no reply. The manager turned the account over to the Association’s collection attorney, with a copy of the owner’s payment ledger showing her property address. The attorney recorded a Claim of Lien and sent a 30-Day Notice of Intent to Foreclose to the property address by certified mail. Of course, it was returned “Unclaimed”. The following month, while not even aware that her account was “in collection”, the owner mailed a payment to the manager. The manager noticed that the address on the check and on the envelope were not at the Condominium they were the owner’s business address. The manager changed the owner’s mailing address on the Association’s mailing roster, but did not bother to call the Attorney to inform him that she was aware of an address where the owner could be reached. Indeed, the manager admitted in deposition that she “doesn’t have time” to check why the mail is being returned. Soon, when the attorney recommended foreclosure of the lien, the manager authorized it and the suit was filed.
Section 718.116 of the Condominium Act requires the Association to give a 30-day Notice of its Intent to Foreclose a lien. The Notice must be “addressed to the unit owner at his or her last known address”. If the Association does not give such notice, and if the owner pays all delinquent maintenance fees before entry of a final judgment of foreclosure, “the Association shall not recover attorney’s fees or costs”. After being served with the lawsuit, the owner contacted her attorney, who in his Answer alleged that the Association did not give the required notice. Prior to trial, the owner tendered the full amount of the delinquent maintenance fees without costs or attorney fees. The Association proceeded to trial. Although the manager denied being told of the owner’s initial request to use her business address, when she admitted that she became aware of the owner’s mailing (i.e. – business) address when she received a payment and changed the mailing roster, but did not call the Association’s attorney, the Association’s case was lost. The manager obviously had the owner’s “last known address”, but she failed to notify the attorney of that fact. Therefore, the 30 day Notice of Intent to Foreclose had never been sent to the owner’s “last known address” as required by statute. To make matters worse, this particular Association had in its Declaration a provision that is quite common. After stating that the 30 Day notice must be sent by certified mail, the Declaration said: “If, after diligent search and inquiry, the Association cannot find the unit owner or a mailing address …, the Court may proceed with the foreclosure action and award attorney fees and costs….” Thus, in this instance, the Association had a duty to conduct a “diligent search and inquiry” before proceeding to Court. Clearly, this was not done by the Association (or its attorney).
Since the unit owner was the prevailing party, not only did she not have to pay the Association’s attorney fees and costs, but she was entitled to recover her own attorney fees and costs from the Association, which were more than $3,600.00! One phone call from the manager to the attorney could have avoided that.
DISCLAIMER: THE FOREGOING ARTICLE IS NOT LEGAL ADVICE AND IS FOR INFORMATION PURPOSES ONLY. YOUR READING OF THIS ARTICLE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP WHATSOEVER. IF YOU ARE CONSIDERING ANY ACTION WITH LEGAL CONSEQUENCES, YOU SHOULD FIRST CONSULT WITH AN ATTORNEY OF YOUR CHOOSING.