Florida District Court holds that avoiding payment of a valid assessment is not an appropriate remedy to unit owners to cure unauthorized acts by officers and/or directors of condo association.

After the commercial condominium suffered flood damage when a pipe burst in the building's air conditioning system, the Association passed a special assessment to pay for flood damage repairs and cleaning of the air conditioning system's condenser coil. A unit owner refused to pay the special assessment, and the Association filed suit to foreclose on its claims of lien. The unit owner answered and counterclaimed, raising breach of fiduciary duty as an affirmative defense and counterclaim.

Thereafter, the Association moved for summary judgment. The trial court granted the motion and entered a final summary judgment of foreclosure against the unit owner. The unit owner appealed, arguing the trial court erred in granting summary judgment in the Association's favor because the validity of the special assessment was a contested fact.

On appeal, the 3^rd DCA affirmed the trial court, holding that no genuine issue of material fact existed as to the validity of the special assessment, which was duly passed for the payment of common expenses pursuant to F.S. 718.111(4) and 718.115(2), and the owner was obligated to pay the special assessment. Moreover, any breach of fiduciary duty on the part of the Association's officers and directors would not have obviated the owner's duty to pay the special assessment. Instead, any success on its claim for breach of fiduciary duty would have entitled the owner only to reimbursement of dues paid toward the purported improper expenditures.

The court further opined that avoidance of the payment of a valid assessment is not a remedy available to unit owners to cure unauthorized acts by an association's officers or directors. If the officers or directors of an association act in an unauthorized manner, the unit owners should seek a remedy through elections or, if factually supported, in an action for breach of fiduciary duty. Finally, a unit owner's duty to pay assessments is conditioned solely on whether the unit owner holds title to a condominium unit and whether the assessment conforms to the declaration of condominium and bylaws of the association, which are authorized by F.S. 718.

The court affirmed the trial court's final summary judgment of foreclosure in the Association's favor.