DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GARY PASH, Trustee of
The Herbert and Minnie Pasch Family Trust dated May 12, 1996,
Appellant,
v.
MAHOGANY WAY HOMEOWNERS ASSOCIATION, INC.,
Appellee.
No. 4D19-3367
[January 27, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey Levenson, Judge; L.T. Case No.
CACE18011296(09).
Winsor Daniel, Jr. of Winsor Daniel Jr., P.L., Pembroke Pines, for
appellant.
Michael Solloa, Jr. of Tripp Scott, P.A., Fort Lauderdale, for appellee.
ARTAU, J.
Appellant challenges a final summary judgment in a homeowners’
association foreclosure of a lien for unpaid assessments. This judgment
came as a result of dueling summary judgment motions, yet genuine
issues of material fact remain to be resolved below. Thus, we reverse the
entry of summary judgment for the association on its motion for summary
judgment, while affirming the denial of appellant’s motion for summary
judgment.
Background
The association filed a homeowner’s association foreclosure action
against appellant claiming he had failed to pay outstanding quarterly
assessments and costs. The parties each moved for summary judgment.
In support of its motion for summary judgment, the association
attached its governing document, entitled “Declaration of Covenants,
Restrictions and Easements” (the “Declaration”), the demand letters it sent
to appellant, and an affidavit attested to by its president. In opposition,
appellant submitted his affidavit and letters to the association stating that
he did not receive the required written notifications of the amounts due,
and that he did not owe what the association was demanding.
Appellant’s motion for summary judgment claimed that the association
overstated the amount of assessments due and, therefore, did not comply
with section 720.3085(1)(a), Florida Statutes (2018), requiring a claim of
lien to include “the assessment amount due.”
The association concedes that it made a mistake in its calculation of
the assessments, but that it corrected the amount owed when it filed the
foreclosure case, and that regardless of the mistake, appellant was
delinquent in the amounts owed to the association under the Declaration.
The circuit court denied appellant’s motion for summary judgment but
granted the association’s motion and entered a final summary judgment
of foreclosure on the association’s claim of lien.
Standard of Review
The standard of review on a motion for summary judgment is de novo.
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000). Summary judgment cannot be granted if there remains any
disputed genuine issue of material fact. Albelo v. Southern Bell, 682 So.
2d 1126, 1129 (Fla. 4th DCA 1996).
“The constitution and by-laws of a voluntary association, when
subscribed or assented to by the members, becomes a contract between
each member and the association.” Waverly 1 & 2, LLC v. Waverly at Las
Olas Condo. Ass’n, Inc., 242 So 3d 425, 428 (Fla. 4th DCA 2018).
Accordingly, the association’s Declaration is an enforceable contract
between the parties here.
The Association’s Declaration
In relevant part, Section 6.03 of the Declaration provides:
At least ten (10) days prior to the beginning of each fiscal year
(or within 30 days following recording of this Declaration for
the balance of 1994), the Board of Directors shall prepare,
adopt and distribute to all Members a written, itemized,
estimated budget of the Common Expenses to be incurred by
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the Association during the coming year in performing its
functions under this Declaration.
Furthermore, Section 6.10 of the Declaration provides:
Written notice of such Assessments and the due date(s)
thereof shall be sent to every Owner subject to such
Assessments. The Association shall, upon reasonable request
of any Owner, furnish to such owner or any prospective
purchaser or the purchaser’s mortgages a certificate in writing
signed by an officer of the Association setting forth the amount
of current Assessments and whether any delinquencies exist.
Analysis
Appellant’s affidavit and letters to the association dispute the
assessments owed and compliance with the Declaration’s notice
requirements. The Declaration contractually requires the association to
submit an annual budget to each homeowner setting forth the quarterly
assessments for each year and written notice with the due dates for those
assessments. In addition, the Declaration requires the association to
provide a certificate setting forth the amount of current assessments upon
the reasonable request of any homeowner. The association’s summary
judgment evidence failed to include each of the relevant budgets and
notices, together with proof that they were provided to appellant in
response to his affidavit. Accordingly, the association’s compliance with
these contractual requirements before imposing its lien and foreclosing on
appellant’s property are genuine issues of fact that remain in dispute.
The dissenting opinion urges us to adopt an interpretation of section
720.3085(1)(a), Florida Statutes (2018), that would invalidate any claim of
lien that contains an error in the amount of unpaid assessments. The
dissent relies on a definite article employed by the Florida Legislature—
“the”—as invalidating an association’s claim of lien containing any
overstatement of the amount owed. The dissent construes the statute’s
requirement of including “the assessment amount due” such that—the
assessment—would be understood to means—the correct assessment. In
support of this construction, the dissent reasons that if the Legislature
had wanted to include a safe harbor provision to allow for errors in the
calculation of the claim of lien, it could have included analogous language
to that of the mechanics lien statute in section 713.08(3), Florida Statutes
(2018) (“[T]he negligent inclusion or omission of any information in the
claim of lien which has not prejudiced the owner does not constitute a
default that operates to defeat an otherwise valid lien.”).
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If we were to adopt the dissent’s interpretation, we would be reading
into the statutory language what the Legislature never included. The
Legislature certainly could have included a clarifying adjective such as
“correct” before the noun “assessment” in its statutory requirements for a
valid claim of lien. Moreover, the Legislature could have provided that any
error in a claim of lien, big or small, would wholly invalidate the amount
of an association’s claim, but it chose to not do so. Instead, the Legislature
provided homeowners with a procedure for contesting an error in a claim
of lien by either filing a notice of contest pursuant to section
720.3085(1)(b), Florida Statutes (2018), or challenging the foreclosure
action. After all, the association is asserting only a claim of lien. Like all
claims, it must be proven before the association can be considered the
prevailing party. If the association does not prevail on the issues in
dispute, the homeowner may recover his or her attorney’s fees and costs
against the association.
Nothing in section 720.3085(1)(a) suggests that the claim must be free
of error for it to serve as an otherwise valid claim of lien. If the Legislature
intended otherwise, it would have utilized more than a definite article—
“the”—to do what the dissent attributes to that commonly used article. As
written, the Legislature has used the word “the” to merely define what
needs to be included in a valid claim of lien—one specified amount claimed
to be due in unpaid assessments—without precluding the potential for a
mistake in the claimed amount that would, of course, be subject to a
contest or challenge in further proceedings.
Moreover, the dissent’s reliance on the affirmance in Meadows of
Miramar Homeowners Ass’n, No. 1, Inc. v. Rodriguez, 155 So. 3d 496 (Fla.
4th DCA 2015) (citing Saar v. Wellesley at Lake Clarke Shores Homeowners
Ass’n, 68 So. 3d 417 (Fla 4th DCA 2011)), is misplaced. As acknowledged
by the dissent, Saar did not hold that a claim of lien is invalid if it contains
a mistake or overstatement in the amount of unpaid assessments. Thus,
the affirmance in Meadows with a citation to Saar could not have extended
a holding that was never reached in the case it cites.
Conclusion
While we conclude that the circuit court erred in entering summary
judgment for the association, we do not interpret section 720.3085(1)(a) as
invalidating a claim of lien simply because it contains a mistake or
overstatement in the amount of unpaid assessments. Therefore, we do not
find error in the circuit court’s denial of appellant’s summary judgment
motion. Accordingly, we reverse the summary judgment entered for the
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association, affirm the denial of appellant’s summary judgment motion,
and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings.
LEVINE, C.J., concurs.
WARNER, J., concurs in part and dissents in part with an opinion.
WARNER J., concurring in part and dissenting in part.
While I concur with the majority’s reversal of the summary judgment
entered for the association, I dissent in the majority’s affirmance of the
denial of appellant’s summary judgment motion. Appellant challenges a
final judgment of foreclosure of a homeowner association lien for unpaid
assessments. He contends that the court erred in enforcing the claim of
lien because it overstated the amount of assessments due. Because
section 720.3085, Florida Statutes (2018), requires that a claim of lien, to
be valid, must include “the” amount due, and such statutes must be
strictly construed, I would reverse the denial of appellant’s motion for
summary judgment and remand with instructions to enter summary
judgment for appellant.
Appellant is the owner of real property located within a development
governed by appellee Mahogany Way Homeowners Association, Inc. (“the
HOA”). In December 2017, the HOA sent a demand letter asserting that
assessments on appellant’s property were past due. The assessments
amounted to $666.72 and included $342 for three quarters of
maintenance at $113 per quarter, plus associated late charges, collection
fees, and legal fees and costs. The letter notified appellant that the HOA
intended to file a claim of lien if the amounts were not paid within forty-
five days of the date of the letter. Appellant sent a check for $342 for the
assessments but contested the other charges as he claimed he had not
been notified of the assessments.
The HOA sent a second letter of notice of intent to foreclose. This
included an additional quarterly assessment of $113, plus additional late
charges, interest, collection fees, and costs and attorney’s fees. While this
letter stated that a claim of lien had been filed, the claim of lien was filed
later.
Contrary to the contents of either letter, the recorded claim of lien
showed the amount of assessments due as $370 per quarter for all but
one quarter for a total of $1,226, plus interest, costs of collection, and
attorney’s fees.
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More than forty-five days later, the HOA filed a one-count complaint to
foreclose its claim of lien. The HOA alleged that appellant owed $568 in
past due assessments, plus interest, late charges, costs, and attorney’s
fees.
After an answer and affirmative defenses were filed, the HOA moved for
summary judgment, attaching affidavits of amounts due, together with
affidavits for attorney’s fees. The amounts due included maintenance
assessments incurred after the filing of the complaint.
Appellant responded that the claim of lien was not valid, that he had
made payments which had not been credited to him, and that he had not
received proper notice of the payments.
Appellant also moved for summary judgment. He argued that the claim
of lien was invalid for failure to comply with section 720.3085, Florida
Statutes (2018), because the claim of lien overstated the amount of
assessments due. The HOA responded that “a mere typo” resulted in the
incorrect amount in the claim of lien and that it would be inequitable to
“absolve” appellant of his debt to the association because of this mistake.
The trial court granted the HOA’s motion for summary judgment and
denied appellant’s motion. It entered a final judgment of foreclosure, not
in accordance with the amounts in the claim of lien, but the amount in the
affidavit of indebtedness. The appellant was given credit for payments he
made during the pendency of the action. The ultimate amount due was
$1,295. The court found that the attorneys’ time was reasonable, but
inexplicably did not include attorney’s fees in the original final judgment.
It reserved jurisdiction to award attorney’s fees, which, according to the
affidavit, amounted to $33,267.50.
In this appeal, appellant contends that the court erred in denying his
motion for summary judgment and granting the HOA’s motion. Because I
conclude that appellant’s motion should have been granted and that it
disposes of this appeal, I address the issues raised in his motion for
summary judgment upon a de novo review. See Leon v. Pena, 274 So. 3d
410, 412 (Fla. 4th DCA 2019). 1
1 The HOA argues that because of the absence of a transcript of the hearing on
the summary judgment motions, appellant cannot demonstrate error, based
upon Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).
Because our review of a motion for summary judgment is de novo, transcripts of
hearings are ordinarily not necessary for review. See Shahar v. Green Tree Serv.
LLC, 125 So. 3d 251, 254 (Fla. 4th DCA 2013). While a transcript of a summary
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The development’s Declaration of Covenants provides that the HOA has
a lien on a homeowner’s parcel for unpaid assessments. Article 7.01 of
the Declaration provides that the HOA “may enforce the collection thereof
and all charges thereon in the manner authorized by law and this
Declaration.” Thus, the Declaration requires that enforcement occur in
“the manner authorized by law.”
Section 720.3085(1)(a), Florida Statutes (2018), provides in part:
To be valid, a claim of lien must state the description of the
parcel, the name of the record owner, the name and address
of the association, the assessment amount due, and the due
date. The claim of lien secures all unpaid assessments that
are due and that may accrue subsequent to the recording of
the claim of lien and before entry of a certificate of title, as well
as interest, late charges, and reasonable costs and attorney
fees incurred by the association incident to the collection
process.
(Emphasis supplied).
Where enforcement of a lien is governed by statute, the statute must be
strictly construed. See Dwork v. Exec. Estates of Boynton Beach
Homeowners Ass’n, 219 So. 3d 858, 861 (Fla. 4th DCA 2017). Here,
because the claim of lien is governed by the statute, there must be strict
compliance with its terms in order for the claim of lien to be valid. Id.
Black’s Law Dictionary defines “valid” as “legally sufficient; binding.”
Valid, BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, for a claim of lien to
be legally sufficient, it must contain certain information, including the
amount of the assessment due. The statute’s use of the article “the” refers
to a specific amount. See The, MERRIAM-WEBSTER ONLINE DICTIONARY,
http://www.merriam-webster.com/dictionary/the (last visited Nov. 24,
2020) (defining “the” in definition 1.a. as follows: “—used as a function
word to indicate that a following noun . . . is definite . . .”).
judgment hearing may be necessary “in cases where preservation of a legal
argument might otherwise be in question,” Johnson v. Deutsche Bank Nat’l Tr.
Co. Ams., 248 So. 3d 1205, 1211 (Fla. 2d DCA 2018), the argument we address
in this appeal was preserved in appellant’s motion for summary judgment,
rendering a transcript of the summary judgment hearing unnecessary for our
review.
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In Saar v. Wellesley at Lake Clarke Shores Homeowners Association,
Inc., 68 So. 3d 417 (Fla. 4th DCA 2011), we considered a claim of lien filed
under section 718.116(5), which is nearly identical to section 720.3085.
There, the HOA filed suit against the homeowner for two unpaid
assessments. Id. at 419. The claim of lien was incorrect and overstated
the amount due. Id. While the trial court entered final judgment for the
association, on review we determined that the HOA had failed to prove that
the homeowner had not paid the amount due in the claim of lien. Id. at
420. The claim of lien did not put the homeowner on notice of the amount
of the claims due, nor did its complaint. Id. at 419. Because the HOA’s
accounting methods were “woefully inadequate,” the association did not
make a proper claim of lien and did not prove that the homeowner had
failed to pay the assessments due. Id.
Saar noted that the claim of lien overstated the amount due, but it did
not hold that the claim of lien was invalid for that reason. However, in
Meadows of Miramar Homeowners Association, No. 1, Inc. v. Rodriguez, 155
So. 3d 496, 496 (Fla. 4th DCA 2015), in a per curiam opinion citing only
to Saar, the parenthetical explanation of Saar states “reversing foreclosure
judgment where the claim of lien overstated the amount due.” Meadows
of Miramar thus strongly suggests that this court has concluded that a
claim of lien is invalid where the amount of assessments due is overstated.
Where a claim of lien overstates the amount due, it does not comply
with the requirements of the statute, which are strictly construed. There
is no provision in the statute which provides for omission or correction of
errors, as there is in the mechanics lien statute. See § 713.08(4)(a), Fla.
Stat. (2018). The mechanics lien statute also contains a provision that
“the negligent inclusion or omission of any information in the claim of lien
which has not prejudiced the owner does not constitute a default that
operates to defeat an otherwise valid lien.” § 713.08(3), Fla. Stat. (2018).
When the Legislature intends to provide for such provisions, “it obviously
knows how to say so in unmistakable language.” Kraft Gen. Foods, Inc. v.
Rosenblum, 635 So. 2d 106, 109 (Fla. 4th DCA 1994). The Legislature did
not see fit to include such language in section 720.3085.
Appellee argues that this is a mere scrivener’s error, which may be
overlooked. It claims it would be inequitable to deprive it of its lien simply
because it overstated its claim of lien by double the amount actually owed.
It offers no statutory or case support for its contention.
Demanding strict compliance with the claim of lien statute, particularly
as to the amount of assessments due, may have the salutary effect of
improving association accounting. This would avoid situations as
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occurred in Saar in which negligent record keeping led to an expensive,
and ultimately unsuccessful, lawsuit. Moreover, I agree with the Third
District that “[b]ecause of the statutory lien rights and the power to
prosecute the foreclosure action, an association and its attorneys have
ample leverage, and the unit owners have very little.” Ocean Two Condo.
Ass’n v. Kliger, 983 So. 2d 739, 740 (Fla. 3d DCA 2008). Insisting on strict
compliance with the statute on claims of lien may be the small leverage
homeowners have in such circumstances. In this case, it appears that the
appellant paid most, if not all, of the assessments, including those which
accrued after the filing of the foreclosure complaint. He balked at paying
mounting attorney’s fees and late charges for assessments of which he
claimed he was unaware.
The filing of a claim of lien which does not comply with the statute may
prevent foreclosure of it without amendment, correction or reformation.
But section 720.3085 does not affect the ability to obtain a civil judgment
for unpaid assessments when pled. In this case, the Declaration of
Covenants provides in Article 7.01 that “[t]he Association may bring an
action at law against the Owner(s) . . . or foreclose its lien against the Lot
of such owner, or both.” While it was entitled to bring a collection action
at law, the HOA did not include such a claim in its complaint. It sought
only to foreclose on its claim of lien. Because a collection action at law
was never pled, the HOA is now not entitled to assert a new claim in this
suit.
For the foregoing reasons, I would reverse and remand for entry of final
judgment in favor of appellant.
* * *
Not final until disposition of timely filed motion for rehearing.
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