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Dwork v. Executive Estates of Boynton Beach Homeowners Association, Inc.

Florida Court of Appeals, Fourth District

May 24, 2017

JONATHAN MITCHELL DWORK a/k/a JONATHAN M. DWORK, Appellant,
v.
EXECUTIVE ESTATES OF BOYNTON BEACH HOMEOWNERS ASSOCIATION, INC., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Peter D. Blanc, Judge; L.T. Case No. 2014CA006070 XXXXMB.

          Jonah M. Wolfson of Wolfson Law Firm, LLP, Miami, for appellant.

          Peter J. Sosin of Sosin Law, PLLC, Boca Raton, for appellee.

          Klingensmith, J.

         Jonathan M. Dwork ("appellant") asks this court to decide whether Executive Estates of Boynton Beach Homeowners Association ("HOA") was obligated under section 720.305(2)(b), Florida Statutes (2013), to provide him with fourteen days' notice of a hearing on alleged violations of maintenance requirements before imposing fines, or whether HOA could be entitled to money damages for unpaid fines so long as it substantially complied with the statute's notice provision. We find that strict compliance with the notice provision of the statute was a necessary prerequisite for HOA to impose fines. Accordingly, because HOA provided appellant with only thirteen days' notice of the hearing, we reverse the money damages awarded to HOA for the unpaid fines.

         Appellant owns and resides in a single family house within HOA's development. HOA's governing documents require all homeowners to keep their roofs and driveways clean and their fences in good condition. HOA notified appellant of his violations of these requirements multiple times over the preceding years, but he neither fixed them nor responded to any of the notices. In 2013, after an inspection confirmed the continued existence of these maintenance violations, HOA informed appellant of the violations by certified letter and provided a thirty-day cure period to bring the property into compliance. Not receiving an answer, HOA sent another certified letter providing for an additional fifteen days to comply. Appellant was completely unresponsive to HOA's repeated attempts to contact and notify him.

         On May 23, 2013, HOA sent appellant another notice by both regular and certified mail informing him that thirteen days later on June 5 a hearing would take place before the fine committee to consider his maintenance violations. In compliance with its bylaws, HOA also posted the notice on a bulletin board at the development's clubhouse. Again, the copy of the notice sent by certified mail was returned unclaimed. The fine committee meeting commenced as scheduled on June 5, with the committee voting to impose fines on appellant for three violations. HOA's board ratified the committee's decision on June 25. Two days later, HOA sent appellant another letter, informing him of the committee's decision and that starting on July 2, he would be fined $25 per day for each of the three violations if they were not remedied. As was the practice, appellant neither responded to the letter nor remedied the violations.

         On September 5, 2013, HOA's attorneys mailed appellant a letter demanding payment of the fines and informing him that a lien would be recorded on his property if the fines remained unpaid. Appellant neither responded nor remedied the violations. On January 27, 2014, HOA's attorneys mailed appellant another letter informing him that they were recording a lien on his property for $7, 500.00 as the full amount of the accrued fines, which was the maximum allowed ($2, 500.00 fine for each violation), plus fees and costs incurred, totaling $8, 135.00. This certified letter also went unclaimed. On January 29, 2014, the clerk recorded the lien on appellant's property in the public records. Appellant never contacted HOA regarding the lien.

         HOA then filed a two-count complaint against appellant for foreclosure and damages, as well as attorney's fees and costs. The first count sought to foreclose on the claim of lien for fines imposed as assessments for violations of HOA's declaration of covenants, articles of incorporation, and rules. The second count sought a judgment for money damages in the amount of $7, 500 for failure to pay those same fines. The cause went to a non-jury trial in April 2016, whereupon the court entered final judgment. On the first count, the court denied foreclosure since the thirteen-day notice provided to appellant by HOA did not comply with the fourteen-day notice provision of section 720.305(2)(b) or HOA's declarations and bylaws, thereby rendering the HOA unable to enforce its claim of lien against appellant's property. However, despite HOA's failure to strictly comply with the statutory notice provision, the court awarded money damages to HOA on its second count, reasoning that the "equities of this cause [were] with [HOA] and against [appellant]." The court also granted HOA entitlement to reasonable fees and costs. This appeal followed.

         As this is a matter of statutory interpretation, we review the application of section 720.305 de novo. Miles v. Parrish, 199 So.3d 1046, 1047 (Fla. 4th DCA 2016).

         At the time when HOA sent appellant the hearing notice, section 720.305(2)(b) provided that "[a] fine or suspension may not be imposed without at least 14 days' notice to the person sought to be fined or suspended and an opportunity for a hearing before a committee."[1]

         As to the first count for foreclosure on the claim of lien, the court properly denied relief. Pursuant to section 720.305(2)(b), HOA was required to provide appellant with at least fourteen days' notice of the fine committee hearing.

         Section 720.305(2)(b) is protective, and the notice requirement functions as a condition precedent to the attachment of a lien. This time requirement for the notice is no mere technicality. Failure to provide sufficient time to prepare a defense to a claim of violation deprives the homeowner of due ...


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