Appellate ruling in Hollywood case spotlights notice requirements for condo association lawsuits | Opinion

A recent appellate decision brought an added measure of clarity to the pre-suit requirements for community associations bringing legal actions against their unit-owner members.

The new opinion from Florida’s Fourth District Court of Appeal came in a case that stemmed from a dispute at the Gateland Village Condominium in Hollywood, in Florida.

The association for the community filed a three-count complaint against unit-owner Mary Elizabeth Holly seeking injunctive relief requiring her to make requisite repairs to her unit’s leaking air-conditioning system, which was purportedly causing damage to the building’s roof as well as water intrusion into another unit, and to allow the association to access and inspect her residence. It also sought damages for breaching the association’s governing declaration by failing to provide it access to the unit and to maintain/repair her air conditioning system.

In response, Holly asserted that the trial court lacked personal jurisdiction due to the absence of service of process, alleging she was not personally served with the summons and complaint. She also alleged that Gateland failed to satisfy prerequisites prior to filing suit required by both Florida law and the condominium association’s own governing documents.

In turn, Gateland argued that Holly had waived service of process by seeking affirmative relief, including the reinstallation of her air conditioning unit, reimbursement of prior assessments which she alleged had been paid, and attorney’s fees. Gateland also argued that the statutes on which Holly relied did not apply, and the notice provision in question in the association’s governing documents does not apply to such emergency situations.

The Broward County Circuit Court agreed with Holly and dismissed the lawsuit, providing in its Summary Final Judgment of Dismissal that the association failed to personally serve Holly with process, the temporary injunction order did not submit Holly to the jurisdiction of the Court, and the association failed to comply with the statutory requirements of the state’s Condominium Act before filing to foreclose.

However, in the subsequent appeal, the Fourth DCA panel unanimously agreed that the unit owner had waived the issue of defective service of process by seeking affirmative relief in the matter from the trial court. The appellate court further concluded that even had Holly not waived the issue, dismissal was improper as the proper procedure to contest service is via a motion to quash.

Additionally, and arguably most illuminatingly, the appellate panel also found that the lower court erred in its interpretation of the pre-suit notice requirements under the state’s Condominium Act. It concluded that Florida law “does not provide for a condition precedent to the filing of a foreclosure suit … [r]ather, it provides for written notice of intent to foreclose on a lien for unpaid assessments before a foreclosure judgment may be entered.”

The Fourth DCA’s opinion further clarifies that the Condominium Act “does not contain an absolute requirement of pre-lien notice or recordation of a claim of lien.” Instead, while a claim of lien is necessary where a mortgagee is also asserting a claim, the Act simply provides that “[t]he association has a lien on each condominium parcel to secure the payment of assessments,” and “the lien is effective from and shall relate back to the recording of the original declaration of condominium.”

Accordingly, although Florida law does indeed provide that a notice of intent must be sent by associations to unit owners prior to filing a lien, and as Gateland did not actually file a lien, the appellate panel ruled that Gateland had a lien upon the recording of its Declaration of Condominium.

With this reversal of the trial court’s dismissal of the condo association’s suit, which has now been remanded for further proceedings, the Fourth DCA has advised Florida’s condominium owners, associations and circuit courts alike of the applicability of personal jurisdiction and the requirements of associations seeking to enforce and/or foreclose upon a claim of lien.

While this decision appears favorable to community associations throughout the state attempting to enforce their lien rights against non-complying owner members, it remains undeniably prudent for associations to retain highly qualified and experienced legal counsel when evaluating their enforcement rights and navigating the requirements of both their own governing documents as well as applicable state laws.

Michael Toback is an attorney with the South Florida law firm of Siegfried Rivera who focuses on community association law and collections. He is a regular contributor to the firm’s association law blog at www.FloridaHOALawyerBlog.com. The firm maintains offices in Miami-Dade, Broward and Palm Beach counties, and its attorneys focus on real estate, construction, community association, insurance and bankruptcy law. www.SiegfriedRivera.com, 305-442-3334, MToback@SiegfriedRivera.com.

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