Unpaid assessments continue to be a prime issue for a large percentage of community associations. From time to time, owners within the community object to certain aspects of the manner in which the board of directors handles association affairs. In some instances, the owners try withholding assessments and claim a set-off against whatever they are claiming is not right with the community. A recent decision of the Third District Court of Appeal concluded that if an assessment is properly passed by the association, there is no such set-off available.
In Coral Way Condominium Investments, Inc. v. 21/22 Condominium Association, Inc., Case No. 3D10-1652, August 3, 2011, the appellee owner withheld assessments, claiming that the Board had improperly used association funds in the past. The appellant Association had adopted a special assessment against all owners for flood damage repairs and cleaning the air conditioner condenser coil. The parties did not dispute that the special assessment was properly adopted by the Board, with appropriate notice, and documentary authority to do so. The owner filed affirmative defenses and counterclaims against the Association for the improper use of Association common funds and claimed that the special assessment exceeded the needs of the Association.
The Court ruled that the avoidance of payment of a valid assessment is not a remedy available to owners to cure unauthorized acts by officers or directors of an association. When officers and/or directors act in an unauthorized manner, the owners should pursue a remedy through elections or, if appropriate, legal action for the alleged breach of their fiduciary duty. The Court further stated that an owner’s duty to pay assessments is “conditional solely on whether the unit owner holds title . . . and whether the assessment conforms to the declaration . . .” (emphasis in the original text). The Court further stated that “insufficiency of funds is not a prerequisite to the passing of a special assessment.” The Court upheld the decision of the trial court in favor of the Association.
The holding in Coral Way reiterates the principle that properly adopted assessments do not have legal defenses and withholding of payment is not a proper remedy for an owner to consider.