In short: Generally no. Florida’s condominium statute does not let an owner avoid assessments by giving up use of the common elements or abandoning the unit, and repair complaints are normally raised as claims or defenses, not by withholding payment. In Vital v. Summertree Village at the California Club Condominium Association, an owner stopped paying after years of unrepaired leaks and mold. On August 3, 2022, the Third District affirmed the finding that she had not paid, but reversed the foreclosure judgments because her setoff and unclean hands defenses had never been tried.
The Facts
According to the opinion, Marie Vital bought her unit at Summertree Village in 2007. Beginning in 2012 she complained to the property manager, the association and government agencies that her unit had mold from a common-area water leak and flooding from seeping groundwater. In 2014, after her complaints brought no relief, she stopped paying the monthly maintenance fee and later did not pay a special assessment. In January 2015 the association sued to foreclose its lien for the unpaid assessments.
The pleadings went through several rounds. In November 2016 the trial court granted partial summary judgment finding nonpayment undisputed but leaving the amount owed for trial, and it severed Vital’s counterclaims from the foreclosure claim. After an October 2018 omnibus order, the setoff and unclean hands defenses survived, along with four counterclaim counts. In December 2019 a successor judge entered two identical final judgments of foreclosure, setting damages, fees and a sale date, apparently without trying those defenses. Vital, representing herself and her late mother’s estate, appealed. At argument:
- Vital argued the declaration made the association responsible for repairing leaks, that her counterclaim was compulsory, and that she had paid some amounts the association still charged. She asked the court to reverse both the final judgments and the partial summary judgment.
- When the panel asked what case, statute or document let her withhold assessments because repairs were not made, she acknowledged none said so directly.
- The association conceded the final judgments were premature because the amount owed was still disputed, but asked the court to affirm the nonpayment ruling, the stricken defenses and the severance order.
The Decision
The Third District affirmed in part, reversed in part and dismissed in part on August 3, 2022. Vital v. Summertree Vill. at the Cal. Club Condo. Ass’n, 343 So. 3d 1260 (Fla. 3d DCA 2022).
It reversed both final judgments of foreclosure as premature. With the setoff and unclean hands defenses still pending, the trial court’s work on the foreclosure claim was not complete. The court said the association had “commendably and correctly” conceded the point.
It affirmed the order striking the negligence, negligence of third parties and impossibility defenses, the order severing the counterclaims, and the partial summary judgment, but only insofar as it found nonpayment undisputed and left the amount for trial. It dismissed the challenge to rulings on the counterclaims because they are not reviewable until the counterclaims are finally decided. The court expressly did not decide whether the counterclaims are compulsory or permissive, and it did not decide how far the setoff defense reaches. Those questions go back to the trial court.
The Law
Under section 718.116(1)(a), a unit owner is liable for all assessments that come due while he or she owns the unit. Section 718.116(2) says liability for assessments may not be avoided by waiver of the use or enjoyment of any common element or by abandonment of the unit. Section 718.116(9)(a) says no owner may be excused from paying his or her share of the common expenses unless all other owners are proportionately excused, with narrow developer exceptions.
The association has a lien for unpaid assessments under section 718.116(5) and may foreclose it like a mortgage under section 718.116(6), recovering interest, late fees and reasonable attorney’s fees.
An owner who claims the association breached its duty to maintain common elements can sue, or raise the claim as a counterclaim and a setoff defense. Rule 1.170(a) governs compulsory counterclaims, and rule 1.270(b) lets a court order separate trials. Vital shows that while a pleaded setoff defense is pending, a court should not enter a final foreclosure judgment.
Lessons
- Withholding assessments to force repairs is risky. The nonpayment finding in Vital was affirmed, and the association’s foreclosure claim stays alive.
- Pay under protest and pursue the repair claim separately, or raise it as a counterclaim and setoff defense, rather than stopping payment.
- Keep receipts. Disputes over what was actually paid have to be proven with records.
- A final foreclosure judgment entered while defenses are still pending can be reversed as premature.
Source: Vital v. Summertree Village at the California Club Condominium Ass’n, No. 3D20-0024, 343 So. 3d 1260 (Fla. 3d DCA Aug. 3, 2022); ACIS docket.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Condo Owner Stops Paying Assessments Over Unrepaired Leaks and Mold: Setoff Before Foreclosure?
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- Defending HOA Lien Foreclosure Claims
- Condo Leak Claims Revived: When a New Complaint Relates Back (Anderson v. Epstein)
- Appealing Too Early: Why a Condo Ownership Appeal Was Dismissed (Mantabs v. Happy Fiddler)
Frequently Asked Questions
Can I stop paying my condo fees if the association won't make repairs?
Generally no. Section 718.116 makes owners liable for assessments and says they cannot avoid them by giving up use of the common elements or abandoning the unit. In Vital, the owner admitted no case, statute or document let her withhold payment, and the finding that she had not paid was affirmed.
What can I do if my condo association ignores leaks and mold in my unit?
Document the problem, give written notice, and consider a claim against the association for breach of its maintenance duties. If the association sues you, the claim can be raised as a counterclaim and setoff defense. Vital kept a setoff defense alive, and the court said it had to be tried before any final foreclosure judgment.
Can the condo association foreclose on my unit for unpaid assessments?
Yes. The association has a lien for unpaid assessments and can foreclose it like a mortgage under section 718.116(6), adding interest, late fees and attorney’s fees. That is what Summertree did after Vital stopped paying.
Can a court enter a foreclosure judgment while my defenses are still pending?
It should not. In Vital, the Third District reversed two final judgments of foreclosure because the setoff and unclean hands defenses had not been decided, and the association conceded the error.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
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