Navigating the Notice of Late Assessment (NLA): A Key Step for HOA & Condo Collections
In 2021, the Florida Legislature made a significant adjustment to the statutory collections process under Florida Statutes §§ 718.116 and 720.3085, introducing the Notice of Late Assessment (NLA) as a critical step before pursuing liens or potential foreclosure. Prior to this change, the initial formal action was the Notice of Intent to Lien (NOIL), typically managed by a collections law firm and subject to strict statutory requirements. This marked the start of a phase that could lead to a lien and, ultimately, foreclosure. The addition of the NLA creates a formal obligation that must occur before a file incurs collections charges or is handed to legal counsel, reflecting a deliberate shift in policy.
The Purpose and Spirit of the NLA
It is my professional opinion that the NLA serves to document, through a statutorily required step, that a homeowner receives a final demand to pay their overdue assessments before legal collections begin and before they face related costs. The spirit of this 2021 legislation stems from a recurring issue: many files reached lien foreclosure proceedings where homeowners claimed they never received notice of unpaid bills or collections efforts until served with a legal document, such as the NOIL, accompanied by substantial attorney fees. This created a “he said, she said” scenario in court, with judges—often inclined to favor owners or tenants in Florida—disliking cases where large fees dictated outcomes. The NLA addresses this by establishing a formalized process, ensuring homeowners get a clear chance to pay without collections-related penalties beyond interest and late fees, as permitted by their governing documents.
My Analysis on Collections Charges
Some practitioners, particularly management companies, argue that the prohibition on collections-related charges at the NLA stage applies only to attorney fees. I find no reasonable basis for this interpretation under the plain language of the statute. The term “incident to collection” encompasses any cost tied to the collection process, not just legal fees. I contend that no form of collections charge or penalty—beyond late fees and interest explicitly allowed—can be added to the NLA. This includes fees from third parties, such as a community management company, even if their contract with the association permits it. The statute’s intent is to give owners a cost-free opportunity to settle, and assessing such charges would undermine that purpose. More critically, the NLA provides courts with evidence that this mailing occurred before legal collections, strengthening the association’s position.
Procedure for the Notice of Late Assessment
For the reasons outlined, the NLA does not require certified mail, as the Legislature sought to avoid even a postage charge being added as a collections cost. It is sent via regular mail only. Since attorney fees cannot be assessed at this stage, the NLA is typically prepared by the board, often through its management company. If the management company charges the association for this service under their contract, that is permissible, but the statute prohibits passing that fee to the owner’s account. The owner must receive the NLA with a chance to pay the court debt without collections-related costs.
Procedurally, the NLA must mirror the statutory form, including only core amounts—assessments, interest, and late fees (if authorized by the documents)—as specified in Florida Statutes §§ 718.116(6)(b) and 720.3085(3)(a). We are happy to collaborate with associations to develop a template for future use, ensuring compliance. However, this does not fully resolve the evidentiary challenge, as an owner could still claim non-delivery. Courts in this arena operate under a preponderance of evidence standard and are likely to accept a copy of the NLA with testimony from the board or its agent confirming the mailing date. The statute, under §§ 718.116(6)(b)2 and 720.3085(3)(a)2, recommends—but does not mandate—an Affidavit of Mailing be placed in the association’s official records, stating the NLA was sent, to whom, by whom, and dated with notarization. This serves as concrete evidence if the matter reaches trial.
The Affidavit of Mailing: Recommended but Not Required
The recommended Affidavit of Mailing remains elective, not a “shall be” requirement, based on the current statute. I suggest including a notary block and affidavit section at the bottom of the NLA itself, making each letter carry this proof on its face—an airtight approach in court. The Legislature included this recommendation for a reason, and I believe there is a real risk that a judge, if a defendant claims non-receipt, could rule against the association if no affidavit is in the official records. I do not state this as law, but it would be unwise to face a judge explaining its absence. We can work with files where the NLA was sent by regular mail on a given date, provided a copy exists and the board understands the inherent risk without the affidavit.
Next Steps After the NLA
Thirty days after the NLA is sent, the file may proceed to the association’s attorney to initiate the statutory collections process with the NOIL, as before. Attorneys will need a new onboarding process to verify the NLA’s proper execution per statute. If it falls short, it must be returned to the client for correction.
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