A Florida cooperative can do something no condominium association can do. The resident is not only a member. The resident is a lessee under a lease the association itself granted. When the payments stop, the association is a landlord with a defaulting tenant as well as a creditor with a lien. Terminating the lease and recovering possession is faster and harder hitting than foreclosing, and it is also the remedy most likely to be undone if the procedure slips.
Why a cooperative has a remedy no condominium has
In a condominium, the delinquent owner holds the unit in fee simple, and the association's only route to possession runs through a recorded lien and a foreclosure sale. In a cooperative, the resident holds something different. Under § 719.103(27), a unit owner is the person holding a share in the association and a lease or other muniment of title or possession granted by the association as owner of all the cooperative property. Both legs are required, and the association is the landlord on the second one.
That is why the collection statute reads the way it does. Section 719.108 speaks throughout of rents and assessments. The monthly payment is, in the statute's own vocabulary, rent under a lease the association wrote, and a landlord's ordinary answer to a defaulting tenant is to end the lease and take back the unit.
The counterweight sits one definition earlier. Section 719.103(26) provides that an interest in a unit is an interest in real property, and Florida courts are slow to enforce a forfeiture of a real property interest when the default is money that can still be paid. That tension is why the procedure has to be exact rather than approximately right.
What Chapter 719 gives you, and what it does not
Read § 719.108 straight through and you will find four remedies. None of them is lease termination.
- A lien on the cooperative parcel for unpaid rents and assessments, interest and administrative late fees, under § 719.108(4). It may not be recorded until 45 days after a notice of intent to record a claim of lien has been delivered by certified mail, return receipt requested.
- Foreclosure of that lien under § 719.108(5), by suit in the name of the association, in like manner as a foreclosure of a mortgage on real property. The association is entitled to appointment of a receiver to collect rent, and unless the documents prohibit it, may bid at the sale.
- A money judgment, which the same subsection says may be pursued without waiving the lien.
- Rent interception from a tenant. Section 719.108(10) lets the association demand that a tenant occupying the unit pay rent directly to the association. If the tenant does not comply, the association may issue notice under § 83.56 and sue for eviction under §§ 83.59 through 83.625 as if it were a landlord under part II of chapter 83.
What is not there is any provision authorizing the association to terminate a proprietary lease or remove a member. The Legislature wrote a Part II eviction into § 719.108(10) for the narrow case of a tenant who ignores a rent demand, and wrote nothing for the member who holds the lease. Whether that silence is an oversight or a choice is a real argument on both sides, and no statute settles it.
The bridge is § 719.108(7): the remedies in that section do not exclude other remedies provided by the cooperative documents and permitted by law. That sentence is the whole statutory basis for terminating a proprietary lease in Florida. Our overview of cooperative liens and remedies sets the statutory tools side by side.
What the proprietary lease typically requires
Leases vary, and the older the cooperative the more they vary. The association gets exactly what its document gives it, and most well drafted Florida proprietary leases give some version of the following.
- A definition of default, usually nonpayment of rent or of any assessment for a stated number of days after it comes due.
- A written notice of default to the member at a specified address, stating the amount owed and the time allowed to cure.
- A cure period. Ten, fifteen or thirty days is common. The lease controls; there is no statutory minimum or maximum.
- An election by the board to terminate, often requiring a formal vote and sometimes a stated fraction of the whole board. Some older leases require a vote of the membership instead.
- A notice of termination fixing the date the lease ends and possession must be surrendered.
- Disposition of the shares. The better clauses direct the association to sell the shares, apply the proceeds to the debt and costs, and pay any surplus to the former member. Weaker clauses simply cancel them.
Read the bylaws alongside the lease. In many cooperatives the two split the subject, with the lease creating the default and the bylaws supplying the procedure. Where they conflict, which one governs is a question worth answering before you rely on either. Our guide to proprietary leases and occupancy agreements works through how these documents fit together.
Notice, cure, and the board's resolution
Nearly every failed termination fails on the front end rather than in the courtroom. The sequence that holds up looks like this.
- Confirm the ledger is right to the penny, including how prior payments were applied.
- Send the Notice of Late Assessment required by § 719.108(3)(c) before charging the member for attorney fees. It gives 30 days to pay without fees attaching.
- Send the notice of default the lease requires, to the address and by the method the lease specifies, and keep proof of delivery.
- Let the full cure period run. Not a day short.
- Take the board vote at a meeting noticed and posted at least 48 continuous hours in advance under § 719.106(1)(c), and only then send the notice of termination.
- File for possession if the member does not surrender.
Step five is board business, not manager business. Section 719.106(1)(c) also provides that directors may use e-mail to communicate but may not cast a vote on an association matter by e-mail; a chain of replies saying "agreed, terminate" is not a board vote, and it is discoverable. The minutes should record a resolution identifying the unit and the member, the amount due and the period it covers, each notice sent with its date and method of delivery, the expiration of the cure period, the election to terminate effective on a stated date, and the authorization for counsel to proceed. A minute entry reading "discussed delinquency, agreed to proceed" answers nothing a judge will ask.
Two traps recur. The first is partial payment. Section 719.108(3)(a) requires that any payment be applied first to interest, then to any administrative late fee, then to costs and reasonable attorney fees, and only then to the delinquent assessment, regardless of any restrictive endorsement or purported accord and satisfaction. A member who writes "paid in full" on a check that does not cover the whole obligation has not cured. But an association that banks that check after electing to terminate, and says nothing, may be found to have waived the termination. Take money after termination only with a written reservation of rights, or not at all.
The second is inconsistency. If the board has carried other members for a year at a time and now moves quickly against one, expect that history to be the defense. A written collection policy applied the same way every time is worth more here than any single letter.
Which part of Chapter 83 applies to the eviction
This is where most published guidance goes wrong. The instinct is to reach for Part II of Chapter 83, the residential landlord and tenant act, and serve a three-day notice under § 83.56(3). Part II does not apply. Section 83.42(4) states plainly that it does not reach occupancy by a holder of a proprietary lease in a cooperative apartment, and § 83.42(5) excludes the owner of a condominium unit for the same reason. The Part II defenses, including the rent withholding procedure, are not available to the member either.
Part I is written as the residual. Section 83.001 says the part applies to nonresidential tenancies and all tenancies not governed by part II. Under § 83.20, a tenant of any houses, lands or tenements may be removed on holdover after three days' written notice requiring payment of the rent or possession, or after 15 days' written notice to cure a material breach other than rent. Section 83.21 authorizes a complaint for removal and entitles the landlord to summary procedure under § 51.011, in which all defenses must be in an answer filed within five days after service of process.
Then comes the provision that makes this remedy formidable. Section 83.232 requires the tenant to pay the rent alleged in the complaint into the court registry on or before the date the answer is due, plus rent accruing during the case. Failure to pay is an absolute waiver of the tenant's defenses, and the landlord is entitled to an immediate default for possession without further notice or hearing. A defense that would take a year to litigate in a foreclosure can disappear in five days here.
Be honest about the seam. Section 83.05, in the same part, speaks of premises other than a dwelling unit, while § 83.20 is not so limited. Chapter 82 offers another path, with § 82.03(4) requiring summary procedure and § 82.04 confining the court to possession and damages. Whether a court here will run a cooperative possession case through Part I of Chapter 83, through Chapter 82, or through ejectment is not answered by any statute, and your lease and your county's practice will both matter.
Forfeiture of the shares, the equity, and the surplus
Ending the lease disposes of possession. It does not answer what becomes of the share, and Chapter 719 says nothing about cancellation, valuation, or a member's right to anything left over. This is the part of the analysis that most often gets skipped and most often produces the counterclaim.
Think about the numbers before the board votes. In a mature Bonita Springs or Naples cooperative, a unit may carry two or three hundred thousand dollars of value against a delinquency of a few thousand. A termination that ends the lease, cancels the share and hands the association all of that value is a forfeiture, and Florida equity has never been friendly to forfeitures where the default is money and the defaulting party can be made whole.
A lease that directs the association to sell the shares, apply the proceeds to rent, interest, costs and fees, and remit the balance to the former member is a different proposition. The association is made whole, the member keeps the equity, and there is no windfall to characterize. If your lease does not say that, amending it is the highest value document change a cooperative board can make.
Nor is there a statutory right of redemption on this path. Chapter 45 redemption applies to a foreclosure sale, not to a landlord's termination, which is one more reason a court may look hard at whether the real property interest recognized by § 719.103(26) can be taken this way. Where the unit is held by an estate, the analysis is harder still; see our guide on succession and estates.
How this fits with the association's lien
The two remedies are cumulative, not alternative. A board can record the claim of lien, sue on the debt, and pursue termination, and in a serious case it often should. Sequencing still matters. If the unit is occupied by a tenant rather than the member, § 719.108(10) will usually produce cash faster than either lien foreclosure or termination, and it does not put the member's equity in play. The claim of lien is not effective more than one year after recording unless an action to enforce it is commenced within that time. And a share lender is almost certainly watching.
Most cooperative share loans are papered with a recognition agreement among the lender, the association and the borrower. Those agreements routinely require the association to notify the lender of a default, give the lender a chance to cure, and recognize the lender's right to sell the shares and the lease. Terminating without that notice can expose the association to the lender and can make the unit unsalable. Check for one before the first letter goes out; our discussion of share loans and recognition agreements explains what they require.
Finally, confirm whether a presuit step applies. Collection of an assessment is carved out of the disputes that must go through the Division's program; a claim framed around the board's authority over the unit may not be. Our article on cooperative arbitration and mediation shows where the line falls.
Frequently Asked Questions About Terminating a Cooperative Proprietary Lease
Can a Florida cooperative evict a member for not paying maintenance?
Possibly, but not because a statute says so. Chapter 719 contains no termination or eviction remedy against a member. The authority has to come from the default and termination clause of the proprietary lease, which § 719.108(7) preserves by saying the statutory remedies do not exclude other remedies in the cooperative documents. If your lease has no such clause, the lien is your remedy.
Do we serve a three-day notice like a residential landlord?
Not under Part II of Chapter 83. Section 83.42(4) excludes occupancy by the holder of a proprietary lease in a cooperative apartment from that part entirely. Serve the notice your proprietary lease requires, in the manner and with the cure period it specifies. What a court will accept as the follow-on possession procedure should be confirmed with counsel before filing.
Is terminating the lease faster than foreclosing the lien?
Usually, yes, and by a wide margin. A possession action under Part I of Chapter 83 proceeds by summary procedure under § 51.011, with the answer due five days after service, and § 83.232 requires the occupant to deposit the claimed rent into the court registry or lose all defenses. A lien foreclosure under § 719.108(5) runs like a mortgage foreclosure and takes far longer.
What happens to the member's shares and the equity in the unit?
That depends entirely on your documents, because Chapter 719 does not address it. A well drafted lease directs the association to sell the shares, apply the proceeds to the debt and costs, and pay any surplus to the former member. A lease that simply cancels the shares invites a forfeiture defense, particularly where the unit's value far exceeds the delinquency.
Can we still record a lien and sue for the money?
Yes. The remedies are cumulative. Section 719.108(5) says a suit for a money judgment may be maintained without waiving the lien, and § 719.108(7) preserves the lease-based remedies alongside the statutory ones. Remember that a recorded claim of lien is not effective more than one year after recording unless an enforcement action is commenced within that time.
Does the board need a vote, or can the manager send the notice?
The board must vote, at a meeting noticed and posted at least 48 continuous hours in advance under § 719.106(1)(c), and directors may not cast that vote by e-mail. The minutes should record a resolution identifying the unit, the amount due, each notice sent with its date, the expiration of the cure period, and the effective date of termination.
Contact Hamilton Mikes
Hamilton Mikes represents cooperative boards in Lee, Collier and Charlotte Counties on delinquencies, lease defaults and possession actions, and reviews proprietary leases so the remedy is there before it is needed. Call 239-594-7227 or visit our Assessment Collection page.
Statutes and authorities referenced
- § 719.103(12), (26), (27), Fla. Stat. (definitions of cooperative, unit, unit owner; interest in a unit is an interest in real property)
- § 719.106(1)(c), Fla. Stat. (board meeting notice; 48 continuous hours; no votes by e-mail)
- § 719.106(1)(o), Fla. Stat. (director or officer more than 90 days delinquent deemed to have abandoned office)
- § 719.108, Fla. Stat. (rents and assessments; liability, lien, interest and collection)
- § 719.108(3)(a), Fla. Stat. (order of application of payments; restrictive endorsements ineffective)
- § 719.108(3)(c), Fla. Stat. (Notice of Late Assessment; 30 days before attorney fees)
- § 719.108(4), Fla. Stat. (claim of lien; 45-day notice of intent by certified mail, return receipt requested)
- § 719.108(5), Fla. Stat. (foreclosure in like manner as a mortgage; receiver; money judgment without waiving lien)
- § 719.108(7), Fla. Stat. (remedies not exclusive of those in the cooperative documents)
- § 719.108(10), Fla. Stat. (demand on tenant; eviction under part II of chapter 83 as if the association were the landlord)
- § 83.001, Fla. Stat. (part I applies to nonresidential tenancies and all tenancies not governed by part II)
- § 83.05, § 83.20, § 83.21, Fla. Stat. (right of possession on default; causes for removal; summary procedure)
- § 83.232, Fla. Stat. (rent paid into the registry of the court; absolute waiver of defenses)
- § 83.42(4), (5), Fla. Stat. (part II does not apply to a proprietary lease holder in a cooperative apartment or to a condominium unit owner)
- § 51.011, Fla. Stat. (summary procedure; answer within 5 days after service of process)
- § 82.03(4), § 82.04, Fla. Stat. (unlawful detainer; summary procedure; court determines possession and damages only)
- Chapter 45, Fla. Stat. (judicial sales and redemption, by contrast with lease termination)