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]
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 pursuant to a deed in lieu of foreclosure of a
first Mortgage, shall be liable for unpaid Assessments which
accrued prior to such acquisition of title.
Section 6. Subordination of the Lien to First
Mortgages. The lien of Assessments, including
interest, penalties, processing or other, fees, late
charges, costs, expenses and reasonable attorney's and
paralegal's fees, shall be subordinate to the lien of
any first Mortgage upon any Unit or Unplatted Parcel. The
sale or transfer of any Unit or Unplatted Parcel shall not
affect the Assessment lien or the personal liability of the
Owner of such Unit or Unplatted Parcel for payment of the
Assessment. However, the sale or transfer of any
Unit or Unplatted Parcel pursuant to judicial or
nonjudicial foreclosure of a first Mortgage shall
extinguish the lien of such Assessments (but not the
personal liability of the prior Owner for said unpaid
Assessments) as to payments which became due prior to such
sale or transfer. No foreclosure, sale or transfer
shall relieve such Unit or Unplatted Parcel from the
personal obligation or liability for the payment of any
Assessments (including the right to file a lien for
nonpayment thereof for any Assessments thereafter accruing
or becoming due. When a Mortgagee holding a first
Mortgage of record or other purchaser of a Unit or
Unplatted Parcel obtains title pursuant to remedies under
the Mortgage, or by deed in lieu of foreclosure, such
Mortgagee or purchaser, its successors and assigns shall
not be liable for the share of the Common Expenses or
Assessments of the District Association chargeable to such
Unit or Unplatted Parcel which become due prior to the
acquisition of title to Such Unit or Unplatted Parcel by
such acquirer. Such unpaid share of Common
Expenses or Assessments shall be deemed to be Common
Expenses collectible from owners of all the Units or
Unplatted Parcels, including such acquirer, its successors
and assigns.
(Emphasis added).
The
Association disagreed with RESHS's position and continued
to seek payment from RESHS. In turn, RESHS filed an action
seeking a declaratory judgment as to the effect of Article
VII, Section 6 of the CCR on its rights and potential
liabilities for the unpaid HOA assessments and penalties that
had come due before it purchased the Property. The
Association answered, and as one of its affirmative defenses,
asserted that RESHS was jointly and severally liable with the
previous owner for all unpaid HOA assessments pursuant to
section 720.3085(2), Florida Statutes (2017), which provides
that a property owner "is jointly and severally liable
with the previous parcel owner for all unpaid assessments
that came due up to the time of transfer of title."
Two
months after filing suit, RESHS sold the Property. The
Association then moved to dismiss the complaint as moot
because RESHS no longer owned the Property. Following a
hearing, the trial court dismissed RESHS's complaint,
concluding RESHS no longer had standing to maintain its
declaratory judgment action. The trial court reasoned that by
transferring its ownership interest, RESHS was no longer the
owner, and thus, was not entitled to a declaration of rights.
"The
purpose of a declaratory judgment is to afford parties relief
from insecurity and uncertainty with respect to rights,
status, and other equitable or legal relations."
Santa Rosa Cty. v. Admin. Comm'n, Div. of Admin.
Hearings, 661 So.2d 1190, 1192 (Fla. 1995) (citing
Martinez v. Scanlan, 582 So.2d 1167, 1170 (Fla.
1991)). A declaratory judgment "may not be invoked if it
appears that there is no bona fide dispute with reference to
a present justiciable question." [2]Ashe v. City of Boca Raton,133 So.2d 122, 124 (Fla. 2d DCA 1961); see Ready v.
Safeway Rock Co.,24 So.2d 808, 811 (Fla. 1946) (Brown,
J., concurring specially) (explaining that it is well settled
that declaratory judgment proceeding must be based on actual
controversy, and that no proceeding lies under declaratory
judgments act to obtain judgment that is merely advisory or
merely answers moot or abstract question); see also
Godwin v. State, 593 So.2d 211, 212 (Fla. 1992)
(reiterating that case ...