Florida is not a super lien state. An HOA or condominium association’s lien for unpaid assessments does not leapfrog a first mortgage the way a true super lien would in roughly 20 other states. What Florida gives associations instead is a capped payment right, known as the “safe harbor,” that a foreclosing first mortgage holder has to satisfy after taking title. The mortgage keeps its first-position priority; the association gets a limited slice of the delinquency.
What a Super Lien Is
Lien priority normally follows the order of recording in the county’s public records. The first mortgage is almost always recorded first, so it gets paid first out of any foreclosure sale. A super lien is a statutory carve-out that lets an association’s later-recorded lien jump ahead of that first mortgage for a defined amount, typically six months of unpaid assessments.
Florida rejected that approach. The legislature chose to protect the first mortgage’s priority position and instead force the foreclosing lender to pay the association a limited amount after the fact. The practical effect is similar in small delinquencies and very different in large ones.
Florida’s Safe Harbor Cap
The rule lives in two parallel statutes: Section 718.116 for condominium associations and Section 720.3085 for homeowners associations. When a first mortgage holder or its successor takes title to a unit or parcel through foreclosure or a deed in lieu of foreclosure, its liability for the previous owner’s unpaid assessments is capped at the lesser of:
- 12 months of unpaid assessments (common expenses and regular periodic or special assessments) that came due in the 12 months immediately before the lender acquired title, or
- 1% of the original mortgage debt — the loan amount at origination, not the current balance.
Whichever figure is smaller is what the lender owes.1Florida Senate. Florida Statutes 718.116 – Assessments; Liability2Florida Legislature. Florida Statutes 720.3085 – Payment for Assessments; Lien Claims Anything the previous owner owed above that cap is extinguished as against the new owner. The association can still pursue the former owner personally for the balance, but the property itself is clear of it.
How the Numbers Play Out
Take a home bought with a $300,000 mortgage in a community with $400 monthly assessments. The prior owner falls two years behind, running up $9,600 in unpaid dues before interest and fees. Twelve months of assessments equals $4,800. One percent of the original mortgage equals $3,000. The lender pays the lesser figure, $3,000. The remaining $6,600 is off the property.
The Joinder Trap
The cap is conditional. It applies only if the foreclosing lender named the association as a defendant in the foreclosure lawsuit.1Florida Senate. Florida Statutes 718.116 – Assessments; Liability If the lender leaves the association out, the safe harbor does not apply and the new owner can be on the hook for the full delinquency. The only carve-out is when the association was dissolved or lacked a known office or registered agent for service of process when the complaint was filed.3Florida Senate. Florida Statutes 720.3085 – Payment for Assessments; Lien Claims Lenders miss this step more often than you would expect, and when they do, the association gets everything.
Where the Association’s Lien Does Have Priority
The association’s lien for unpaid assessments relates back to the date the community’s original declaration of covenants was recorded. Against second mortgages, judgment liens, and most other junior creditors, that relation-back date puts the association ahead, as long as the declaration predates them.2Florida Legislature. Florida Statutes 720.3085 – Payment for Assessments; Lien Claims
Against a first mortgage, the picture flips. The lien is effective only from the date the association actually records a claim of lien in the public records. It does not reach back to the declaration date to compete with the mortgage.2Florida Legislature. Florida Statutes 720.3085 – Payment for Assessments; Lien Claims That is the structural reason Florida is not a super lien state: the association’s claim simply does not sit ahead of a properly recorded first mortgage.
Third-Party Buyers Do Not Get the Cap
The safe harbor is written for the first mortgagee and its successors. If a third-party buyer takes the property at the mortgage foreclosure sale, the statute treats that buyer as jointly and severally liable with the previous owner for all unpaid assessments that came due before title changed hands.3Florida Senate. Florida Statutes 720.3085 – Payment for Assessments; Lien Claims The association can pursue the buyer for the entire outstanding balance, not the capped amount. A right of reimbursement against the former owner exists on paper. In practice, that owner has just lost the property to foreclosure and is rarely a collectible target. Anyone bidding at a mortgage foreclosure auction on association property should pull the assessment ledger first.
When the Declaration Overrides the Statute
The safe harbor is not the last word. Florida courts have held that if a community’s declaration was recorded before the safe harbor statutes took effect and contains language extinguishing assessment liability on a foreclosure sale, that declaration language can control over the statute. In Beacon Hill HOA v. Colfin AH-Florida 7, LLC (2017), Florida’s Third District Court of Appeal ruled that a third-party purchaser at a mortgage foreclosure sale owed nothing for past-due assessments because the declaration itself wiped out that liability upon foreclosure. The court found that the joint and several liability provision in Section 720.3085 had not been incorporated into those declarations, so the declaration’s own terms governed.
The takeaway is that the statute sets the default, but the recorded declaration for a specific community can strengthen or weaken the association’s collection power. Before relying on the safe harbor math, whether you are a lender, an association, or a buyer, read the declaration.