Why HOA Liens Definitely Do NOT Survive Tax Deed Sales

An Investor on BiggerPockets.com said it perfectly; “Many gurus and books make it sound like buying at tax sale is easy. It is one of the most complicated and legally convoluted businesses in the real estate industry. However, it can be tremendously profitable!” The experienced tax deed investors out there are nodding their heads vigorously in agreement.

Due to this convoluted nature, it is vital for prudent investors to know the laws pertaining to tax deeds to protect themselves from improper claims of liability, such as those made by a Homeowner Association’s for unpaid assessment liens accrued prior to the property being sold at auction.

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One of our clients recently bought a condo at a tax deed sale. He stopped by the HOA office simply to update contact information and was handed a claim of lien for unpaid HOA assessments for the past 3 years and asked to pay it in full. This obviously came as a surprise to him because he was unaware those liens had survived. Thankfully, one of our attorneys recognized the unlawfulness of this and stepped in.

The Florida Statutes and case law can be somewhat confusing to a new investor as to which liens survive tax deeds sales. However, per Florida Statute §197.573(2) HOA assessments clearly do not fall into the category of surviving liens after a tax deed sale. The tax deed purchaser is not required to expend money for any purpose, except for municipal or county governmental unit liens.

Homeowner Associations do not enjoy losing money and may attempt to get paid regardless of any statue stating the unlawful nature of such, and sometimes you just get a new person at the reception desk who has never heard of a tax deed sale. Our client was fortunate to have good counsel intervene on his behalf, but this may not be the case for others.

It is not an ideal situation to create tension with the HOA immediately, and some investors may choose instead to negotiate the fees down before taking further legal action. The bottom line is that an HOA lien recorded prior to the tax deed is extinguished by the sale with notice. The HOA should go after the surplus funds for the assessments accrued prior to the sale, not the tax deed purchaser. This is why it is important to know your legal rights as a tax deed purchaser so you can stand firm your ground when legal lines get blurred.

For additional information See:
Florida Statutes §197.552 and §197.573(2).
Lunohah Investments, LLC v. Gaskell, 158 So.3d 619, 621 (Fla. 5d DCA 2013).
A to Z Props., Inc. v. Fairway Palms II Condo. Assoc., Inc., 137 So.3d 453 (Fla. 4d DCA 2014).
Beneva Ridge Condo. Assoc., Inc. v. SRQUS, LLC, 145 So.3d 104 (Fla. 2d DCA 2013).

October 6, 2015

Posted In: Uncategorized