Community Update

Election Season is Upon Us!

By: Mark D. Friedman, Esq.

For condominiums and cooperatives there are a few statutory election guideposts that start with the numbers 60, 40, 35 and 14*.

Sixty (60) days prior to your annual meeting election the first notice must be sent to all unit owners telling them when the annual meeting and election will be held and asking anyone who may be qualified and interested in running for the board to submit a notice of intent.

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Berg v. Bridle Path Homeowners Association, Inc.,

809 So.2d 32 (Fla. 4th DCA 2002)

By: Jay Roberts, Esq.

Proving that assessments were properly adopted is at the heart of THIS CASE.

Bridle Path Homeowners Association brought a lien foreclosure case against owner Sandra Berg for non-payment of assessments owed on the two lots she owned in the community. As a defense to the case, Berg claimed that the liens were improper because the association failed to comply with its governing documents in adopting the assessments. The governing documents required the board of directors to adopt the association’s budget, to determine the owners’ assessment to meet that budget and to give the owners a fourteen day notice of the meeting at which the budget would be considered. In responding to the complaint, Berg argued that: (1) the property manager, rather than the board of directors, determined the budget; (2) there was no evidence that budgets were adopted at meetings; (3) there was no evidence that the Bergs received notices of the annual meetings; (4) there was no evidence that notices of the annual meetings were posted on the property; (5) there were no minutes kept of the meetings. The trial court found in the association’s favor, specifically finding that “the greater weight of the evidence established that proper notice was given” and “that Berg did not prove her ‘defenses’ by the greater weight of the evidence.”

On appeal, the appellate court overturned the decision, finding that the trial court improperly shifted the burden of proving the association improperly adopted the assessments to Berg, rather than requiring the association to prove that the assessments were properly adopted. The appellate court cited Florida Rule of Civil Procedure 1.120(a),(c), in finding that once a defendant makes a specific denial of a claim, the plaintiff bears the burden of proving every element of its entitlement to judgment.

So why does THIS CASE matter? The association must strictly comply with both its governing documents and relevant statutory provisions in adopting the annual budget and the assessments, and have the ability to prove this compliance, in order to ensure that it can obtain a judgment against an owner for non-payment of assessments. Failure to properly adopt the assessments or maintain proof of the proper adoption of assessments may leave the association unable to collect assessments from delinquent owners. Consulting legal counsel to confirm all document and statutory procedures have been followed is the best way to avoid the frustration and expense of remedying an improper assessment in the future.