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Article Courtesy of JD Supra
By Daniel Miske
Published August 28, 2023
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What you need to know:
Past practice likely won’t be sufficient to sustain a manager’s assessment to a
lot owner.
If your association documents set forth a process by which something must be
done (e.g. assessments) FOLLOW IT.
Issues:
Facts: An owner had a mortgage foreclosure action filed against
it. The HOA incurred $475.50 in attorney fees for filing an answer. The HOA
attorneys invoiced the HOA the $475.50 and the manager added the charge to the
owner’s ledger. The debt then rose when the association began its efforts to
collect on the debt, such that a delinquent assessment letter was sent about 4
months later for $1,698.45.
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Trial Court: Six months
later the HOA filed a complaint for lien foreclosure. The
owner denied that “any authorized assessments were made
against the [owner’s] property.” On cross motions for
summary judgment, the trial court determined that the
association incurred the attorney fees of $475.00, which
constituted a loss to the association, and implicitly found
that the assessment was properly placed on the owners
ledger.
Appeals Court: The owner appealed arguing that
the HOA “never produced any evidence that the Board of
Directors actually levied an individual assessment against
her property.” The HOA argues that the HOA documents give it
the right to levy the assessment, but the “HOA spends little
time refuting [the owner’s] argument that the Board … failed
to actually levy an assessment.” The HOA also failed to
point to anything in the HOA documents that would let anyone
other than the Board levy an assessment. The appeals court
then reversed the trial court and ordered that summary
judgment be granted to the unit owner.
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CLICK HERE TO READ THE ACTUAL COURT OPINION:
Desch v. South
Fork of Hillsborough County II Homeowners Association, —So.3d— (2023).
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