TANIA CARNIELLO, ET AL., APPELLANT,
v.
SECOND HORIZONS CONDOMINIUM ASSOCIATION, INC., APPELLEE

Fla. 3d DCA | 2010-04-07
No. 3D08-1326
Before RAMIREZ, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
34 So. 3d 86 Florida District Court of Appeal, Third District (2010)

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Holding

A condominium association cannot impose a lien on a unit for repairs to an air conditioner, as this does not constitute an 'alteration' or 'improvement' under the declaration or meet statutory requirements for a special assessment.


Headnotes

[1] A condominium association's declaration of condominium may limit special assessments for non-common areas to alterations or improvements, excluding simple repairs.

[2] A condominium association must demonstrate compliance with statutory prerequisites to impose a valid special assessment.

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Facts & Procedural History

A condominium association imposed a lien on a unit for the cost of repairing the air conditioner, which was incurred when the unit was owned by a prev…

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Opinion of the Court
SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

The primary issue in this case concerns the validity of a so-called “assessment lien” imposed on June 26, 2009 in favor of a condominium association on a unit purchased by Lazaro Núñez and Jeimy Salazar on June 2, 2004. The lien was for $4,051.74 incurred in repairing the air-conditioner on May 16, 2003, when it was owned and occupied by Tania Carniello. *87We find no basis for the establishment of a lien on the property, so as to burden a subsequent purchaser of the unit for those expenses, and therefore reverse to that extent the judgment on appeal.

The parties differ as to whether the case is controlled by the terms of the 1966 Declaration of Condominium or the 1976 Condominium Act. We need not resolve the controversy because a charge against the unit itself is not sustainable under either approach:

1. On the one hand, the Declaration of Condominium provides for a special assessment on non-common areas, like Carniello’s unit, only in the case of and “alteration” or “improvement.”1 This provision plainly does not apply to this case in which, as all agree, the inoperative air conditioner was simply repaired. See Siegle v. Progressive Consumers Ins. Co., 788 So.2d 355, 360 (Fla. 4th DCA 2001) (“In common usage, ‘repair’ means ‘to restore by replacing a part of putting together what is torn or broken’ or ... ‘to bring back to good or usable condition.’ ”); U.S. v. Blue Skies Projects, Inc., 785 F.Supp. 957, 961 (M.D.Fla.1991); Pritchett v. State Farm Mut. Auto. Ins. Co., 834 So.2d 785, 791 (Ala.Civ.App.2002); Webster’s Third New International Dictionary 63, 1138 (Philip Babock Gove, Ph. D., ed., Merriam-Webster, Inc. 1986) 1961 (“alteration” is defined as “a change or modification made on a building that does not increase its exterior dimensions”) (“improvement” is defined as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is distinguished from ordinary repairs”).

2. On the other hand, the statutory perquisites to a valid “special assessment” as provided by the Condominium Act were simply not demonstrated below. § 718.116(5)(b) Fla. Stat. (2008)2; § 718.116(10) Fla. Stat. (2008)3; Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958, 961 (Fla.1983) (“In order to assert a statutory cause of action, the claimant must comply with all valid condition precedents; for an action cannot be properly commenced until all essential elements of the cause of action are present.”); Berg v. Bridle Path Homeowners Ass’n, Inc., 809 *88So.2d 32, 34 (Fla. 4th DCA 2002) (“It is well-settled in Florida law that the plaintiff is required to prove every material allegation of its complaint which is denied by the party defending against the claim.”); Star Lakes Estates Ass’n, Inc. v. Auerbach, 656 So.2d 271, 273 (Fla. 3d DCA 1995) (“[I]n order to foreclose on a unit based upon the unit owner’s failure to pay a special assessment, the condominium association was required to prove that it sent written notice of the ‘specific purpose or purposes’ of the assessment to each unit owner.”).

It follows that (conditioned on the prompt payment of $150, plus interest, properly assessed for repairs to a common element, the swimming pool), the judgments below are reversed and the cause remanded for dismissal of the action.

Reversed and remanded.4


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