In short: Mostly affirmed, partly reversed. In Ocean Bank v. 107 Avenue Office Park Condominium Ass’n (Fla. 3d DCA 2012), the court upheld an order dividing a tenant’s rent between the mortgage holder and the condo association. It reversed the part that credited the association’s foreclosure attorney’s fees against the bank’s share.
The Facts
A tenant occupied a condominium office unit in Miami-Dade and kept paying rent while the owner defaulted on both its mortgage with Ocean Bank and its condominium assessments. The bank’s mortgage included an assignment of rents. Two foreclosures ran at the same time: the association foreclosing its assessment lien, and the bank foreclosing its mortgage and assignment of rents.
The trial court entered a non-final order dividing the rents the tenant paid while the cases were pending. As described at argument, the association had earlier obtained a county court order directing the rent to it, and the total at issue was about $18,200. The order gave the association credit for its foreclosure attorney’s fees, reducing the bank’s share. Ocean Bank appealed, and the association cross-appealed.
The Decision
The Third District found no error in the order except one point. Nothing supported deducting the association’s attorney’s fees for its own foreclosure from the share of rents going to the mortgagee-assignee. The court reversed that piece, relying on Velasquez v. Ettenheim (Fla. 3d DCA 2012), and sent the case back to adjust the award. The rest of the rent division was affirmed. The opinion cited Howard Savings Bank v. Eastern Federal Corp. (Fla. 1993) and the assignment of rents and association lien statutes.
The Law
Under section 697.07, a mortgage may include an assignment of rents. The lien on rents is perfected when the mortgage is recorded. Unless otherwise agreed in writing, it becomes enforceable on default and written demand to the mortgagor. In a foreclosure, a court may order rents deposited in the registry. Before deposit, it may allow their use for expenses that protect and operate the property, including association assessments that come due after the order.
Association liens are governed by section 718.116 for condominiums. The opinion cited section 720.3085, the homeowners’ association statute. Assessments that come due while a rent order is in place can be paid from the rents, but the statute does not authorize charging an association’s own collection fees against the mortgagee’s share.
Current law (2026): Section 697.07 remains in effect in the 2026 statutes; subsection (5)(a) expressly allows use of collected rents for association assessments that become due after the court’s order.
Lessons
- A recorded assignment of rents gives the lender a perfected lien on rents, but enforcement usually requires default and written demand.
- Associations can get paid ongoing assessments from rents under section 697.07(5), but not their attorney’s fees out of the lender’s share.
- When two foreclosures compete for the same rent, ask the court early for a clear registry and disbursement order.
- Tenants caught in the middle should pay only as a court order directs and keep records.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Bank vs. Condo Association: Who Gets the Rent? | Ocean Bank v. 107 Avenue Office Park Condo, 3D12-0538
Go Deeper
- HOA and Condo Association Foreclosure in Florida: Notice Rules and Defenses
- The Florida Foreclosure Process, Step by Step
Frequently Asked Questions
Who gets the rent when a Florida condo unit is in foreclosure?
It depends on the mortgage’s assignment of rents, the association’s lien, and court orders. Under section 697.07, the court can order rents into the registry and authorize payment of property expenses, including association assessments due after the order. In Ocean Bank, the court upheld a split between the bank and the association.
Can a condo association take its attorney's fees from rents claimed by the mortgage lender?
Not from the lender’s share. In Ocean Bank v. 107 Avenue, the Third District reversed the part of a rent-division order that credited the association’s foreclosure attorney’s fees against the bank’s portion, finding no basis for that deduction. The rest of the order, including the basic division between the bank and the association, was affirmed.
When is an assignment of rents enforceable in Florida?
Under section 697.07(4), unless the parties agreed otherwise in writing, the lien on rents becomes enforceable when the borrower defaults and the lender makes written demand for the rents. Perfection happens earlier, when the mortgage or separate assignment is recorded. Lenders who want the rents should send that written demand promptly after default.
What should a tenant do if both the bank and the condo association demand rent?
Do not pick a side on your own. Ask both for any court order, and pay as the order directs, or into the court registry if ordered. Keep proof of every payment. Paying the wrong party without an order can expose a tenant to double liability.
Talk to a Florida foreclosure defense lawyer
Weidner Law, P.A. has defended Florida homeowners in foreclosure and foreclosure appeals for more than 25 years. If you need a foreclosure defense lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
