Florida Rising Magazine FRM March 2019 - Page 12

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However, the owner never responded and the fines began to accrue. After written demands to the owner for payment of the fines were sent and similarly not responded to, the association recorded a lien against the owner’s property for the accrued amount of the fines and the fees and costs incurred by the association, totaling $8,135.00, and ultimately sued for foreclosure of the lien and for money damages. (Please note that the events in this case occurred before recent legislative changes to the fining process that now requires the board to first set the fine at a properly noticed board meeting followed by providing the offender a 14 day advance notice to appear before the fining committee who can only approve the board’s action of imposition of the fine. If the committee takes any action other than approval, such as modification of the fine, then such activity operates to fully negate the fine.)

At trial, the court denied foreclosure of the lien because the 13 days’ notice provided to the owner by the association did not comply with the strict 14 days’ notice requirement set out in the Florida Statutes. However, the trial court ruled in favor of the association regarding the claim for money damages because the “equities of this case were with the association and against the owner.” Due to the trial court’s determination in favor of the association for money damages, the owner appealed the trial court’s decision.

In defense of the owner’s appeal, the association argued that substantial compliance with the notice requirements set out in the Florida Statutes, was sufficient, especially since the owner was not prejudiced by the lack of an extra day’s notice. Not persuaded by the association’s argument, Florida’s Fourth District Court of Appeal held that the association could not enforce its lien for fines against the owner because the association failed to provide the requisite 14 days’ notice. The Court found that the 14 days’ notice requirement is a condition precedent to the attachment of a lien and must be strictly construed because Florida law is clear and unambiguous and does not allow for any discretion in compliance with its provisions. Without proper notice, the owner is deprived of due process rights and is unable to have sufficient time to prepare a defense to a claim of violation. As a result, any lien recorded due to the violation is invalid. For these same reasons, the appellate Court reversed the trial court’s determination in favor of the association for money damages, too, without regard to the appellate court’s agreement with the trial court that the equities in this case favored the association.

It is important to note that this case is with regard to a homeowners’ association, not a condominium or cooperative. Pursuant to Chapter 720, Florida Statutes, a fine may exceed $1,000 in the aggregate only if so provided in the declaration, and a fine of $1,000 or more can become a lien against the owner’s property only if provided for in the declaration. Such was the circumstance for the association in the above discussed case. However, under Chapters 718 and 719, Florida Statutes, a fine levied by a condominium or cooperative association respectively, cannot exceed $1,000 in the aggregate and cannot become a lien against the owner’s property.

Although not addressed by the Dwork case, what if your association’s declaration provides that monies expended by the association on behalf of a member who fails to perform a maintenance obligation can be collected in a manner akin to an assessment, or what if the declaration converts the monies expended, in one manner or another, to a special assessment against the lot? If so, this process is not exactly provided for in the Florida Statutes and thus raises an interesting question as to the notice procedures required to provide to the member. Let’s say the declaration provided the association with a self help remedy in the event a member fails to keep their driveway clean so that the association performs the task and after repeated requests the owner fails to reimburse the owner. Now it is time to treat the monies expended as an assessment levied against the lot, but how?

Some might say no further activity is necessary. But, a clever defendant could argue an extra step was necessary because the levy of any assessment, be it regular or special, requires a separate 14 day notice to be provided to the owner(s) subject to the assessment. Therefore, the board, at its next board meeting should take the extra step of converting the monies due into an assessment by adding a line item to the agenda for the consideration of conversion of the monies due(s) by member into an assessment and by sending the violator a 14 day advance notice of the board meeting where the board will act to consider this issue. In such a circumstance, before filing a lawsuit against a member of the association who failed to reimburse the association, be sure to get guidance from your association’s attorney as to how best to deal with this issue.