The association’s “declaration of covenants and restrictions” is a contract between the association and its members. Amongst other things, it provides for the rights and obligations of both parties. Until recently, lawyers often debated the statute of limitations applicable to a community association member’s legal challenge of their association’s member approved amendment(s). Generally speaking, section 95.11, Florida Statutes, provides that a legal action based on a contract dispute must be brought within five years from the time the aggrieved party knew, or should have known, of the matter that is the subject of the litigation.
In this context, lawyers often disagree as to when the five year period begins to accrue. For example, do the five years begin when the amendment is recorded, or some other time, such as when a member took title to their property? Of course, in the latter example, the association would never truly be free from a new owner’s challenge. Additionally, if a potentially aggrieved member is time barred from challenging an amendment, then by simply re-titling their property from themselves to perhaps a family trust, they could likely bring in an otherwise time barred claim. Drawing from municipal law cases, lawyers representing associations often argue that the five year statute of limitations should begin to run from the date an amendment is recorded.
Recently, an association member upset about an amendment requiring members to pay mandatory country club fees filed a lawsuit against her association. The trial court entered summary judgment in favor of the association because the amendment had been in effect for greater than five years. However, the 4th District Court of Appeal reversed on August 24, 2013, when in Harris v. Aberdeen Property Owners Association, Inc., et al, Case. No. 4D12-1435 (Fla. 4th DCA 2013), the Court held that:
“until Harris took title [to her HOA lot] in October of 2006 or, alternatively, until she was assessed membership fees, there was no “immunity, power, privilege or right of the complaining party” that was “dependent upon the facts or the law applicable to the facts…Because Harris filed suit within five years of taking title, it was an error for the trial court to enter summary judgment based on the statute of limitations.”
This case is not a good one for community associations because it means that any member of an association can challenge the declaration and its amendments for the first five years of that member’s ownership of their lot (or unit) without regard to age of the declaration or the amendments. In other words, and as absurd as it sounds, an association’s declaration and its amendments are never free from the legal challenges so long as the challenge is brought by a member(s) who has not owned their property for at least five years.
Associations, like governments, should have the absolute right to know when their declaration and its amendments are free from member challenge. ATTENTION ALL FLORIDA LEGISLATORS: A LEGISLATIVE FIX TO THIS DEBACLE IS NEEDED!