Mortgages, mechanics liens, homeowner association liens are exceptions to Florida homestead protection. These three types of liens must be paid off in order to transfer clear title to a homestead property. One of my clients stated that a title company required that he pay past-due HOA assessments in order to sell his homestead even though the HOA had not recorded a lien on the homestead. He asked whether HOA dues may be enforced against a homestead without the HOA perfecting a recorded lien.
Florida statutes state that a HOA has a lien upon community properties when duly authorized by governing documents. The “documents” refer to, among other things, the Deed Restrictions, Community Declaration, and HOA documents that are recorded during the process of subdivision. Each lot or house buyer signs a document at closing stating that he is familiar with these recorded documents. The statute states that the HOA statutory lien relates back to the date the declaration of community was recorded. Therefore, the HOA lien on properties has priority over all purchase money mortgages recorded against individual lots.
I think my client will have to pay the HOA past-due dues and assessment in order to transfer his homestead property. The Deed Restrictions and Community Declarations are voluntary encumbrances which are within the exception to the Constitution’s homestead protection against involuntary liens. The client purchased his property subject to the recorded documents that give the HOA a priority lien on all homes his community. The Florida statute is designed to make sure HOAs are paid as property is conveyed as people sell their homes.