IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT JANUARY TERM 2005
GEORGE ANDRES and ANNA ANDRES,
Appellants,
v.
INDIAN CREEK PHASE III-B
HOMEOWNER'S ASSOCIATION,
Appellee.
CASE NO. 4D03-3641
Opinion filed March 23, 2005
Appeal from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County;
Edward H. Fine, Judge; L.T. Case No.
502002CA005657XXRFAW.
Barry Silver, Boca Raton, for appellants.
Steven M. Selz of the Law Offices of Selz &
Muvdi Selz, P.A., Palm Beach, for appellee.
Charles J. Crist, Jr., Attorney General, Lynn
C. Hearn, Deputy Solicitor General, Office of
the Attorney General, Tallahassee, for Amicus
Curiae The Attorney General of the State of
Florida and James W. Sloan, General Counsel,
Florida Department of Veterans' Affairs,
Tallahassee, for Amicus Curiae the Florida
Department of Veterans' Affairs.
HAZOURI, J.
George and Anna Andres (the Andreses)
appeal from a Final Judgment granting
foreclosure of their home upon suit by Indian
Creek Phase III-B Homeowner's Association,
Inc. (Indian Creek). We reverse.
The Andreses were found to have violated
Indian Creek's covenants by erecting a flag pole
on their property to fly the American flag.
Indian Creek sued the Andreses and prevailed,
forcing them to remove the flag pole. Indian
Creek now seeks to foreclose upon the
Andreses' home to pay for the attorneys' fees
Indian Creek incurred as a result of its lawsuit.
The Andreses assert this basis for foreclosure is
preempted by the Florida Constitution which
exempts homestead property from a forced sale
except in very limited circumstances. We agree.
Article X, section 4 of the Florida Constitution
provides:
(a) There shall be exempt from forced sale
under process of any court, and no judgment,
decree or execution shall be a lien thereon,
except for the payment of taxes and
assessments thereon, obligations contracted
for the purchase, improvement or repair
thereof, or obligations contracted for house,
field or other labor performed on the realty,
the following property owned by a natural
person:
(1) a homestead, if located outside a
municipality, to the extent of one hundred
sixty acres of contiguous land and
improvements thereon . . . or if located within
a municipality, to the extent of one-half acre
of contiguous land . . . [.]
Judgments for attorneys' fees, like other
judgments falling outside the specified
constitutional exceptions, cannot be enforced by
forced sale of homestead property. See Dyer v.
Beverly & Tittle, P.A., 777 So.2d 1055, 1059
(Fla. 4th DCA 2001) (reversing judgment of
foreclosure for nonpayment of attorney fee
judgment); Bakst, Cloyd & Bakst, P.A. v. Cole ,
750 So.2d 676, 677 (Fla. 4th DCA 1999)
(homestead property not subject to attorney's
charging lien).
Indian Creek seeks to overcome this
constitutional shield and foreclose upon the
Andreses' homestead property for attorneys'
fees by arguing that Indian Creek's documents
imposed a lien for attorneys' fees on the
Andreses' property when the documents were
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first recorded in 1982. Indian Creek asserts that
homestead protection does not come into play
because the lien for attorneys' fees existed
before the property acquired homestead status
and the Andreses took title to the property
subject to the lien. As support, Indian Creek
cites to Bessemer v. Gersten, 381 So.2d 1344,
1348 (Fla. 1980), for the proposition that a
properly recorded covenant which runs with the
land may create a lien that dates back to the
filing of the covenants.
Bessemer involved the issue of whether a
developer's recreation assessment lien could
take priority over a property owner's homestead
right. The developer in Bessemer filed a
declaration of restrictions which required
purchasers to pay a monthly assessment for use
of the development's recreational facilities. The
declaration of restrictions stated that the
developer "shall have a lien upon such owner's
lot for the aforesaid amount of $10.00 per month
until such amount is paid . . . ." Id. at 1346.
In 1970, the Gerstens purchased a house and
lot from the developer. In 1975, the developer's
successor in interest brought suit to foreclose a
lien against the Gerstens for nonpayment of the
recreation assessment. The Gerstens argued that
their homestead right had priority because the
lien could arise only upon nonpayment and,
therefore, the lien did not come into existence
until after they had taken possession of the
house and lot as their homestead.
The supreme court determined that the
Gerstens manifested an intent to let the real
property stand as security for the recreation
assessment obligation when they accepted the
deed with actual or constructive notice of the
language in the declaration of restrictions. Id. at
1348. It further determined that "the creation of
the lien by acceptance of the deed relates back to
the time of the filing of the declaration of
restrictions." Id. Holding that the case should
be treated as if the Gerstens had taken title
subject to a preexisting lien, the court ruled that
the developer's lien had priority over the
Gerstens' homestead right.
The trial court in the instant case ruled the
same circumstances existed here. The lien for
the attorneys' fees originated before the property
became a homestead.
The trial court set forth in the final judgment
the provisions of the documents that supported
its decision as follows:
In 1982, the Declaration of Covenants and
Conditions and the Bylaws of Indian Creek
Phase III-B were recorded in the public
records. In 19881 [sic] the property was
purchased by the Andres [sic] . . .
Excerpts from the Declaration, Bylaws and
Deed provide:
Bylaws:
Article XII – Violations and Defaults "In the
event of a violation (other than non-payment
of an assessment) by an Owner of any of the
provisions of the Declarations, Restrictions,
the Articles of Incorporation, these Bylaws or
the Rules and Regulations of the Corporation,
the Corporation after reasonable notice to
cure, not to exceed ten (10) days, shall have all
rights and remedies provided by law,
including without limitation (and such
remedies shall or may be cumulative) the right
to sue for damages and the right to injunctive
relief. In every such proceeding, the Owner
shall be liable for court costs and the
Corporation's reasonable attorneys' fees
including attorneys' fees on appeals.
If the Corporation elects to enforce its lien by
foreclosure, the Owner shall be required to
pay a reasonable rent for this Lot during
litigation and the Corporation shall be entitled
to the appointment of a receiver to collect such
rent. A suit to collect unpaid assessments may
be prosecuted by the Corporation without
waiving the lien securing such unpaid
1 The Andreses actually bought the property in 1998
but whether it was a typographical error or the trial
court erroneously thought 1988 was correct, is not
germane to our decision.
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assessments. (Emphasis added.)
Declarations of Covenants and Conditions :
Article V, Section 1 "Creation of a Lien and
Personal Obligation of Assessments" provides
that:
Declarant, for each Lot owned within the
Properties, hereby covenants, and for each
Owner by acceptance of a deed therefor,
whether or not it shall be so expressed in such
deed, is deemed to covenant and agree to pay
the Phase III B Association: (1) Annual
assessments as hereinafter defined; (2) Special
assessments, not otherwise herein contained,
against any particular Lot which are
established, pursuant to the terms of this
Declaration or pursuant to the terms of the
Articles of Incorporation and Bylaws of Phase
III B Association or of the Community
Association; and (3) All excise taxes, if any,
which may be imposed on all or any portion of
the foregoing by law. All such assessments,
together with interest and all costs and
expenses of collection, including reasonable
attorneys' fees and appellate attorneys' fees,
shall be a charge on the Lot and shall be a
continuing lien upon the property against
which each assessment is made. (Emphasis
added.)
The trial court also sets forth Article V, Section
11 "Homesteads" which provides that:
[B]y acceptance of a deed thereto, the
Owner of each Lot shall agree to waive any
and all possible defenses of homestead
protection in an action for the foreclosure of
the lien for sums assessed pursuant to this
Declaration. (Emphasis added.)
The court below held that "[t]his section's
validity is questionable and it was not the basis
of Plaintiff's position. The Court does not
consider it binding since waivers of this type
have been invalidated in lender-borrower
settings and have yet to be held valid."
Reviewing these provisions, it seems apparent
that this lien is not an annual assessment and if it
is to be considered preexisting it must come
under the "special assessment" requirement.
Article II of the Articles of Incorporation of
Indian Creek provides that "[t]his Corporation is
incorporated as a corporation not for profit under
the provisions of Chapter 617, Florida Statutes,
as amended from time to time." Chapter 617
has been superseded by Chapter 720 which
provides the following definition at section
720.301(1):
(1) "Assessment" or "amenity fee" means a
sum or sums of money payable to the
association, to the developer or other owner of
common areas, or to recreational facilities and
other properties serving the parcels by the
owners of one or more parcels as authorized in
the governing documents, which if not paid by
the owner of a parcel, can result in a lien
against the parcel.
Thus, an assessment is a sum of money payable
to the association by the owner of a parcel as
authorized in the governing documents which if
not paid can result in a lien.
However, a close reading of Indian Creek's
documents casts doubt on the trial court's
conclusion that the documents provide that the
attorneys' fees are a continuing lien against the
property as required by Bessemer.
The Bylaws provide:
Article X – Assessments and Manner of
Collection
The Board of Directors has the sole power to
and shall from time to time fix and determine
the amounts necessary to pay the assessments.
Assessments include those expenses described
in the Declaration and Restrictions, and any
other expenses designated as assessments by
the Board of Directors, under the authority and
sanction of the Declaration and Restrictions.
. . .
Funds for the payment of assessments shall
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be assessed against and shall be a lien against
the Lots in equal proportion or percentage.
Regular assessments shall be paid by the
Members on the first of each month.
Special assessments, should they be required
by the Board of Directors, shall be levied and
paid in the same manner as regular
assessments.
When the Board of Directors has determined
the amount of any assessment, the Secretary
shall transmit a statement of such assessment
to each Lot Owner. Assessments are payable
at the office of the Corporation.
. . .
In the event an assessment is not paid
when it is due and payable, the Corporation,
through the Board of Directors, may proceed
to enforce and collect said assessment from
the delinquent Owner in any manner
provided for by the Declaration, the Articles
of Incorporation and these Bylaws. Each
Lot Owner shall be individually responsible
for the payment of assessments against his
Lot and for the payment of reasonable
attorneys' fees and costs incurred by the
Corporation in the collection of sums due
and the enforcement of any lien held by the
Corporation, including attorneys' fees on
appeals, if any.
As previously noted above, Article XII refers
to violations, other than nonpayment of an
assessment, and based upon Article X, it appears
that both regular and special assessments are
excluded. Further, even though Article XII
refers to the Corporation electing to enforce
its lien by fore closure, it does not say that the
lien is for the attorneys' fees. This is an
ambiguity that should be resolved in favor of the
homeowner. See Palma v. Townhomes of Oriole
Ass'n, 610 So.2d 112, 113 (Fla. 4th DCA 1992).
The Declarations, Article IV, provide that the
association is responsible for its share of the
common areas, for the roadways, street lighting,
etc. The next article, Article V, set forth above,
entitled COVENANTS FOR MAINTENANCE
ASSESSMENTS, provides in section 1 for the
Creation of a Lien and Personal Obligation of
Assessments. Reading these articles in
conjunction with Article X in the Bylaws on
assessments, the only continuing lien provided
for is for assessments. Article V also only states
that the assessments (annual, special, and excise
taxes) plus the costs of collections of
assessments including attorneys' fees is a
continuing lien. It does not include attorneys'
fees for enforcement. Article XII of the Bylaws
on Violations and Defaults excludes
nonpayment of assessments from its purview
and does not provide for a lien for violations but
allows for the award of attorneys' fees when
bringing an action on a violation. The last two
sentences refer to defaults for nonpayment of
assessments which are separate.
In any event, we find that the association
documents do not provide for a continuing lien
that preexisted the homestead exemption for the
attorneys' fees in question here.
The trial court cites Zerquera v. Centennial
Homeowners' Ass'n, 752 So.2d 694 (Fla. 3d
DCA 2000), in its footnote defining assessment.
In Zerquera, the association's declarations
provided that fines against a homeowner were to
be treated as assessments and assessments were
continuing liens on the property. Therefore,
fines were continuing liens and the homestead
property could be foreclosed upon under
Bessemer. In the instant case, the association
documents do not declare attorneys' fees for
enforcement of violations to be assessments.
Therefore, there is not a continuing lien which
would allow foreclosure upon this homestead
property.
Indian Creek is not precluded from seeking
other legal measures to collect on its judgment
for attorneys' fees but foreclosure upon the
Andreses' homestead is prohibited. We,
therefore, reverse the final judgment of
foreclosure.
REVERSED.
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WARNER and POLEN, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY
TIMELY FILED MOTION FOR REHEARING.
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