While electronic communications are becoming much more prevalent with many offices moving to digital files, mailed notices are still a necessity. Chapters 718 and 720 require certified mail in connection with notice of the Association’s intent to impose a lien as well as notice of the intent to foreclose. However, the statute does not mandate certified mail for all association notices, including notice of a fining hearing or notice of the fine itself which the statute allows to be sent regular mail. Certified mail is expensive and it is cost prohibitive for community associations to send all notices by certified mail.
A recent decision from Florida’s Fourth District Court of appeals is a reminder of the need to document mailing of notices that do not get sent certified or registered and the burden of proof should the issue reach the courthouse. With regard to the mailing of notices in the mortgage foreclosure context, the Court reiterated Florida law: mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt. In order to use routine business practice to prove mailing, the witness must have personal knowledge of the company’s general practice in mailing letters. To put it simply, the Association must either have a witness with personal knowledge that the letter was mailed, an affidavit swearing that the letter was mailed, or a witness with personal knowledge regarding the Association’s mailing practices who can testify that the practices were followed in any given case. Documentation of the mailing will not always be available and it is therefore imperative to establish a routine business practice for mailing notices which can be utilized after the fact to establish that a particular notice was mailed.
Please consult with your Association’s counsel further to make certain that your Association is able to establish in a court of law if necessary that a specific notice was mailed.