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Real Estate Solutions Home Sellers, LLC v. Viera East Golf Course District Association, Inc.

Florida Court of Appeals, Fifth District

January 3, 2020

REAL ESTATE SOLUTIONS HOME SELLERS, LLC, Appellant,
v.
VIERA EAST GOLF COURSE DISTRICT ASSOCIATION, INC., Appellee.

         Rehearing Denied February 3, 2020.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Brevard County, Stephen R. Koons, Judge.

          Michael P. Kelton , of Paul, Elkind, Branz & Kelton, P.A. Deland, for Appellant.

          Robert N. Manning , of Manning Law Firm, PLLC, Melbourne, for Appellee.

         ORFINGER, J.

         Real Estate Solutions Home Sellers, LLC ("RESHS") appeals an order dismissing its declaratory judgment action filed against Viera East Golf Course District Association ("the Association"). RESHS's action sought a judicial determination of its liability for homeowner's association ("HOA") assessments against a home ("the Property") located in the Viera East Golf Course Community ("the Community) that it purchased at a foreclosure auction. After filing the action, RESHS sold the Property to a third party. As a result of the sale, on the Association's motion, the trial court dismissed RESHS's declaratory judgment action as moot, concluding that because RESHS no longer owned the Property, it lacked standing to proceed. We reverse.[1]

Page 1229

          RESHS buys distressed and foreclosed properties, remodels them, and sells them. In August 2017, RESHS bought the Property located in the Community. The Property is subject to the Declarations, Covenants, Conditions, Easements and Reservations for Viera East Golf Course Residential District ("the CCR"), which requires owners of properties in the Community to pay quarterly assessments "to fund common expenses." Under the CCR, if the HOA assessments are not timely paid, the Association is authorized to place a lien on the property. Because the previous owner of the Property had not paid the HOA assessments for an extended period, the Association placed a lien on the Property.

         After RESHS purchased the Property, the Association asserted that its lien had survived the foreclosure and sent RESHS a statement, indicating that RESHS owed $19,032.64, for the unpaid HOA assessments and penalties incurred by the previous owner. RESHS refused to pay the past due HOA assessments and penalties based on its interpretation of Article VII of the CCR, which provides, in relevant part:

         ARTICLE VII

         Assessments

Section 1. Creation of Assessments....
All Assessments, together with interest, penalties, late charges, processing or other fees, costs, expenses and reasonable attorney's and paralegal's, fees, shall also be the personal obligation of the Person who was the Owner of such Unit or Unplatted Parcel at the time the Assessment arose, and his grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance except no first Mortgagee who obtains title to a Unit or Unplatted Parcel pursuant to foreclosure of a first Mortgage, or ...

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