Hilton v. Pearson, 41 Fla.L.Weekly D359 (Fla.1st DCA Feb 10, 2016), Harris v. Aberdeen Prop. Owners Ass’n, 135 So. 3d 365, 367 (Fla.4th DCA 2014) and Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass’n, 169 So. 3d 197, 201 (Fla.1st DCA 2015)

Any challenge to condo association’s governing documents must be brought within five years of recording or five years from the date the challengers take title to property if after the recording of the declaration.

Florida has clarified that when challenging the governing documents for a community association, those suits will be barred if filed five years after their enactment. F.S. §95.11(2)(b) provides, “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument… shall be commenced within five (5) years.” In Hilton v. Pearson, the First District Court of Appeal affirmed Florida law, holding “a suit challenging the validity of an amendment to restrictive covenants must be filed within five years of the date that the amendment is recorded even if the suit alleges that the amendment was void because it was not properly enacted.” In Hilton, the plaintiffs filed suit in July 2013 against the Association, alleging the HOA’s 2001 and 2005 amendments to the restrictive covenants were “null and void” and, therefore, the original covenants remained in full force and effect. The Hiltons were permitted to intervene in the action, raised the five-year statute of limitations defense, arguing that the plaintiffs should have brought their actions in 2006 and 2010 respectively. However, the trial court rejected that argument, sided with the plaintiffs and declared the amendments void. On appeal, the 1st DCA reversed the trial court and ruled the plaintiffs’ suit challenging the amendments was barred by the applicable five-year statute of limitations. Specifically, the court found that the plaintiffs did not file suit against the Hiltons until July 2013, which was 12 years after the HOA’s 2001 amendment and eight years after the 2005 amendment—well beyond the five-year statute of limitations. Likewise, in Harris v. Aberdeen Prop. Owners Ass’n, 135 So. 3d 365, 367 (Fla. 4th DCA 2014), the court held the five-year statute of limitations barred the homeowner’s claim contesting the validity of the association’s membership requirement because that claim accrued when the membership requirement was recorded in 2004 and the homeowner sued more than five years later. In Harris, the trial court entered final summary judgment in favor of the Association, finding the five-year limitations period applied pursuant to F.S. §95.11(2)(b). The cause of action accrued in 2004 when the Association’s amendment was recorded. The Fourth DCA affirmed, specifically stating, “To the extent that Harris challenges the validity and the enactment of the mandatory membership amendment, we agree with Aberdeen POA that the statute of limitations with respect to such a challenge began to run from the 2004 date the amendment was recorded in the public records.” See also Fredrick, 971 So. 2d at 979-80 (holding the statute of limitations on a challenge to municipal assessments imposed for expansion of a road began to run either from the date the assessments were created or the date they were approved); Keenan v. City of Edgewater, 684 So. 2d 226, 227 (Fla. 5th DCA 1996) (holding that a challenge to a resolution imposing special assessments for the purpose of construction of a water and sewer treatment plant accrued when the resolution was passed); Winkelman v. Toll, 661 So. 2d 102, 107 (Fla. 4th DCA 1995) (noting that Florida has a notice-type recording statute, which functions to give “notice to the world” that a property is subject to any properly recorded provisions and regulations). Similarly, in Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass’n, 169 So. 3d 197, 201 (Fla. 1st DCA 2015), the defendant developer recorded an amendment to the restrictive covenants on December 4, 2000. On March 30, 2009, the Association filed suit challenging the validity of the amendment, among other unrelated actions. The court held the Association had five years to file suit, which it did not do. Accordingly, the court opined, “the Association’s claims challenging the validity of the amendment to the Restrictive Covenants that removed the entire Beach Property from the Resort’s common properties are time-barred.”

 

Case Law Alerts, 4th Quarter, October 2016. Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2016 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.