There has been a flurry of legislative activity pertaining to estoppel certificates in the last few years. After many failed legislative efforts, Senate Bill 398 pertaining to estoppel certificates was ultimately passed and became effective as of July 1, 2017. As of 2015, Florida had 47,200 community associations – the highest in the country, so the impact of the estoppel certificate legislation is significant. It is estimated that 9,496,000 Florida residents belong to those community associations. For those Florida residents, the Estoppel Certificate is a critical component in the purchase, sale, and/or refinance of their property. In each of those instances, an Estoppel is necessary to confirm the applicable association fees pertaining to the property, and whether there are any outstanding association fees due and owing through a given date, so that any outstanding amounts due may be collected and paid at closing. Without an Estoppel Certificate, title agents would not be able to issue title insurance to insure the property without exception for potential community association fees applicable to the property.
The problem is the delivery and method of charging and issuing an Estoppel Certificate is open to some interpretation based on the existing law prior to this legislative session. In certain instances, it has been reported that fee charged for the issuance of an Estoppel Certificate in some associations is as high as $1,700. Other routine problems encountered are 14+ day turnaround times for the issuance of the Estoppel Certificate, which can potentially delay the closing process.
The amendments to Chapters 718, 719 and 720 of the Florida Statutes have the objective to bring some certainty to the process of obtaining estoppel certificates – the fee to be charged, the required turnaround time for responding to a request for an estoppel certificate, and the information required to be included in the Estoppel Certificate. Most notably, the changes include, without limitation, the following:
- Required Turnaround Time: The Association has 10 business days (previously 15 days) after receiving a request for an Estoppel Certificate to issue the Certificate. Additionally, the statute now specifically authorizes Estoppel Requests to be made electronically. See Stat. §§§718.116(8), 719.108(6), 720.30851.
- New Website Requirements: The Association is required to post on its website the name of the person or entity to whom estoppel certificate requests may be sent to including the mailing or email address for that person or entity. See Stat. §§§718.116(8), 719.108(6), 720.30851.
- Effective Period of Estoppel Certificate: Upon issuance by the Association, the Estoppel Certificate is effective for 30 days if delivered by electronic means, and 35 days if delivered by regular mail. See Stat. §§§718.116(8)(b), 719.108(6)(b), 720.30851(2).
- The Fee to Prepare the Estoppel Certificate:
a. A maximum of $250 if the owner's account is not delinquent; See Fla. Stat. §§§718.116(8)(f), 719,108(6)(f), 720.30851(6).
b. If the account is delinquent, an additional $150 may be added to the preparation fee; See Fla. Stat. §§§718.116(8)(f), 719.108(6)(f), 720.30851(6).
Florida community associations and the residents in those communities should become familiar with the aforementioned changes in the law regarding estoppel certificates. In particular, Florida community associations should revise their procedures for issuing Estoppel Certificates to ensure full compliance with the Chapters 718, 719 and 720 of the Florida Statutes. A Florida community association’s failure to comply may result in waiver of the right to charge a fee for preparing and delivering an Estoppel Certificate and attorney fees being awarded to the prevailing party in a proceeding to enforce compliance with the statue. We will continue to monitor this development and post updates to our website as they become available (www.carverdarden.com). If you have any questions regarding changes in issuing Estoppel Certificates, please contact the firm at (850) 266-2300.
By Travis M. Morock and Brian W. Hoffman, attorneys practicing Real Estate Law in our Pensacola office.
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