Florida Appellate Court decision (June 11, 2014):
HOA foreclosure action against a unit in the association now owned by an heir of the member. The lower court granted summary judgment of foreclosure for unpaid assessments. The heir filed the appeal contending that it was error to allow the association to foreclose on two special assessments in addition to the regular quarterly assessments when the special assessments were not contained in any pleading.
Section 718.116(5)(b) of the Florida Statutes states that a lien for unpaid assessments “secures all unpaid assessments that are due and that may accrue after the claim of lien is recorded and through the entry of final judgment.” (emphasis added). The appellate court ruled that the word “accrue” references assessments that had been made before a claim of lien is filed — even if they don’t come due until after the lien was filed. The appellate court further ruled that “accrue” does not include “additional assessments for other purposes that are assessed against an owner after the complaint to foreclose a claim of lien has been filed. Litigating the additional assessments in the same proceeding would be a violation of the owner’s due process rights because it deprives the owner of the ability to prepare a defense to the later added assessments.
The appellate court concluded that the lower court erred in awarding the association its claims of two additional special assessments in the final judgment where those claims were not found in a proper pleading. An association cannot “piggyback” unpled claimed assessments on top of those referred to in the claim of lien and the foreclosure complaint.