Article Courtesy of The Daily Business Review
By Jed Frankel
Published May 18, 2018
In the recent decision of First Equitable Realty III v. Grandview Palace
Condominium Association, Florida’s Third District Court of Appeal ruled that
the trial court erred in decreasing the amount of interest awarded to the
association in a collection case due to “equitable considerations” and
reiterated that equity does not afford defenses to delinquent unit owners in
such actions.
In First Equitable, the condominium association filed suit to recover unpaid
assessments from a delinquent unit owner which asserted counterclaims for
unjust enrichment and rescission. As part of the defense, the unit owner
claimed that it was not responsible for the assessments because the
association was itself responsible for protracted litigation giving rise to
the association’s right to pursue the unpaid assessments and that the
association had failed to mitigate its damages. The trial court ruled in
favor of the association, but reduced the amount of interest on the unpaid
assessments awarded because of “equitable considerations.”
On appeal, the Third District affirmed the entry of final summary judgment
in the association’s favor but held that the reduction in interest owed on
the unpaid assessments was improper. Judge Scales on behalf of a unanimous
panel wrote: “Equity has no role. Under the plain and unambiguous language
of [Florida Statute] section 718.116(3), the association was entitled to
recover interest at the rate provided in the declaration, from the due date
until paid. The trial court had no discretion to award anything less in this
case.”
Viewed in the context of earlier decisions regarding unit owners’ refusal to
pay assessments, this case is the most recent of Florida courts’ affirmance
of an association’s right to collect lawful assessments. In Gerecitano v.
Barrwood HOA, the Fourth District Court of Appeal held that a unit owner
could not refuse to pay assessments because the association manager was not
properly licensed, in violation of Florida law. Similarly, in Abbey Park
Homeowners Association v. Bowen, the court rejected an owner’s defense that
the association’s failure to maintain common elements justified the refusal
to pay assessments. A previous panel of the Third District in Coral Way
Condominium Investments v. 21/22 Condominium Association, reviewed a unit
owner’s defense to payment of a special assessment on the grounds that it
would not have been necessary absent breach of a fiduciary duty which
resulted in depletion of the association’s funds. The Coral Way court
rejected the unit owner’s defenses on the well-established principle that a
unit owner’s duty to pay assessments is conditioned solely on whether the
owner holds title to the unit and whether the assessment conforms to the
association’s constituent documents and the Condominium Act.
With the First Equitable court’s extension of the above principle to include
interest owed on past due assessment payments, it is clear that an aggrieved
unit owner cannot look to equity to justify a refusal to pay assessments.
Rather, a unit owner who has an issue with the association must pay lawfully
imposed assessments and challenge the board action by another means such as
by bringing a legal challenge to an association action or inaction (such as
failure to maintain common elements) or seeking to replace the association
board through a recall or election.
Florida courts clearly recognize that the financial stability of the
thousands of community associations throughout Florida depends upon timely
payment of assessments to exist and serve the needs of their members and
will likely continue to support them by applying such precedent in future
cases.
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