Whether a condominium unit owner may waive the statutory mandatory pre-suit arbitration requirement in § 718.1255 Fla. Stat. (2015), by inconsistent conduct was at the center of Wednesday’s decision in CWELT – 2008 Series 1045 LLC v. Park Gardens Ass’n, Inc., Case No. 3D19-1341 (Fla 3d DCA, April 29, 2020).
In 2015, Condominium unit owner CWELT filed a complaint attacking the Condominium Association’s new restrictions on leasing.
In March 2018, the Association filed a counter claim seeking to enforce the amendment which was at issue in the Complaint. The trial court denied CWELT’s motion to dismiss the counterclaim.
The appellate court recited the statute’s language justifying the mandatory pre-suit arbitration program, emphasizing protection for the unit owner, and including judicial economy and the cost of litigation. Nevertheless, CWELT’s litigating a dispute regarding the same amendment terms for three years waived the unit owner’s ability to mandate compliance with mandatory pre-suit arbitration. The court rejected the assertion that the duty to comply with mandatory pre-suit arbitration was “revived” by filing the counter claim three years after the Complaint. In closing, the court noted from Sterling Condo Ass’n, Inc. v. Herrera, 697 So. 2d 703, 704 (Fla. 3d DCA 1997). “The intent of the statute would not be furthered by compelling arbitration and would, in fact, be contrary to the statutes stated intent.”
Please consider that in the context of “normal” common law arbitration provisions found in a contracts and other statutory arbitration requirements that are not gate keepers to litigation, the appellate court’s decision would be understandable. However, under § 718.1255 the holding appears contrary to Neate v. Cypress Club Cd’m, Inc., 718 So. 2d 390 (Fla. 4 DCA 1998) which affirmed the dismissal of a trial court action which was not preceded by mandatory pre-suit arbitration. Perhaps confusion continues as result of the Neate court’s utilization of the phrase “condition precedent,” when by mandating dismissal at the initial pleading stage the Neate court treated the statute as jurisdictional.
We will see how the other District Courts of Appeal address this matter.
Thank you Mr. Christy for the prompt notice of the decision!
Michael J. Gelfand
Real Property, Probate and Trust Law Section
of The Florida Bar
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© 2020 Michael J. Gelfand
Michael J. Gelfand
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator:
Civil Circuit Court & Civil County Court
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