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
...