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The Third District Court of Appeal addressed assessment related issues in Weisser Realty Group, Inc. v. Porto Vita POA, Inc., Case No. 3D18-1634, July 24, 2019.
The court recites many facts, some of which may appear unusual, starting with Weisser Realty purchasing “Commercial Unit 1” “in Porto Via North Association.”
The unit was subject to the appellee Association’s “1995 Declaration of Condominium.” The decision recites that the Association operates “the master community association subject to the Declaration and collects all of the maintenance and special assessments for the Association.” The Declaration defines “assessable unit” as:
Concept of Assessable Units. For purposes hereof, an “Assessable Unit” shall mean (i) each residential condominium unit and commercial unit (i.e., having an active business-related function) subject to the condominium declaration . . .
(Emphasis in decision).
The decision does not state from whom Weisser Realty purchased the unit; however, there was a “addendum contract with the Association providing that Weisser Realty agreed to pay the maintenance assessments,” and which stated:
6. Buyer agrees to pay maintenance assessments, currently $3,654.40 per quarter (if required by [Association]), and adjusted from time to time, to Porto Vita Property Owner’s Association, Inc. (the "Master Association") for maintenance of common areas and any other expenses incident to the operation of the common areas governed by the Master Association from the date of closing forward. Such payments shall begin on the date of Closing.
Of course, the dispute arose when Weisser failed to pay assessments. In March 2013, the Association recorded its assessment lien. In January 2016, the Association filed its lien foreclosure complaint.
Weisser Realty designated as its corporate representative for a deposition the Weiser’s secretary/ bookkeeper/officer manager who was informed the day of the deposition of her deposition. She admitted that she was unfamiliar with the lawsuit details and was not qualified to be a corporate representative. Nevertheless, she stated that the reason for non-payment was that Weisser Realty’s president told her not to pay.
After Weisser Realty’s numerous continuances including: a week before the hearing a motion to continue; three days before the hearing a motion to amend and compel; two days before the hearing Michael Weisser’s affidavit was filed, contradicting the corporate representative’s deposition stating that there were no active business functions, and that the association’s president “reassured him that he would not have to pay assessments.”
Though not expressly stated, it appears that there was an issue of whether the Association provided the notices of intent to lien and to foreclose to the proper address. The address in the purchase documents and addendum was the unit’s address. Thus, there was no dispute that notice to the unit was sent to the proper address.
The unit was assessable. It was “disingenuous” for Weisser Realty to assert that the use as a “storage room” removed the unit from the definition of an assessable unit as quoted above.
Weiser’s “purchase and addendum documents” were not ambiguous. The “if required” language in the addendum quoted above was explained by the Association’s current president as referring to adjustments that might be required to the assessment schedule. In response on this issue, Weisser’s affidavit was conclusory, speculative, and otherwise with hearsay; thus, not admissible and could not challenge the association’s affidavit.
The trial court’s denial of another continuance, was “within its discretion to grant summary judgment where the filings filed mere days prior to a noticed summary judgment hearing appeared to be intended to delay the proceedings.”
Laches would not bar entry of the summary judgment. Laches requires that the defendant had no knowledge that the plaintiff would assert rights. In this situation Weisser Realty was fully aware of its assessment obligations and the lien. Further, in a lien foreclosure action a delay of the foreclosure normally is to a defendant’s benefit, not amounting to legal prejudice.
This decision raises many different issues that may leave you scratching your head in wonderment.
Is the Association a condominium or a non-condominium association? The name, as a “property owners’ association,” we know is not a dispositive label. The decision reflects a “1995 Declaration of Condominium” which would appear to be dispositive that it is a condominium association. Was the correct name of the condominium stated which included “Association?”
If the association is a condominium association, then the decision does not explain whether there was an issue regarding the delay of over one year between recording the claim of lien and filing suit. Normally under § 718.116, Fla. Stat. (2013), a claim of lien is valid for only one year.
Then there is a question of a “assessable unit.” If the association is a condominium association that was declared in 1995, then are some condominium units not assessable?
Weiser asserted its reliance on the former president’s “statement that reassured him” that assessments did not have to be paid. The court held that Weisser Realty did not provide sufficient evidence to overcome the association’s denials. Notably, the court did not conclusively hold that reliance on a president’s statement which would contradict, presumably, the declaration of condominium may not be relied upon.
The decision seems to turn on the contents of the “addendum.” The decision does not explain why a condominium association would need an addendum to enforce assessment rights that normally whould be clearly stated in the declaration of condominium.
While associations and most owners might cheer the decision for coming to the right conclusion, the rational of the decision leaves one wondering as to why the appellate court did not simply focus on the Condominium Act and (crossing one’s fingers) language in the declaration clearly providing for assessment liability, and it being unreasonable for a buyer to rely upon an association statement contradicting the declaration and Condominium Act’s assessment provisions. The facts as laid out also reinforces the need to properly select a corporate representative for deposition. Associations also must be cautious creating agreements addressing issues governed by a declaration.
Michael J. Gelfand
Past Chair
Real Property, Probate and Trust Law Section
of The Florida Bar
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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section
© 2019 Michael J. Gelfand
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator:
Civil Circuit Court & Civil County Court
Fellow, American College of Real Estate Attorneys
