Rosso v. GOLDEN SURF TOWERS CONDO ASS'N
Docket: 94-0977
Court: District Court of Appeal of Florida; March 7, 1995; Florida; State Appellate Court
In the case of Hector J. Rosso and others v. Golden Surf Towers Condominium Association, the District Court of Appeal of Florida addressed a dispute regarding license fees imposed by a condominium association for the exclusive use of a dock. The appellants, owners of a condominium unit, initially paid a fee for dock usage but ceased payments after a fee increase. The association later did not collect fees for over a year before the boat was removed under a court-issued injunction. The court affirmed summary judgment in favor of the association on three counts of the owner's complaint but found that material issues of fact existed on the association's counterclaim for unpaid fees, preventing summary judgment. The court analyzed the application of the Florida Condominium Act, specifically subsection 718.111(4), which allows associations to charge for assessments and lease common elements. The court concluded that the association could charge a fee for the exclusive use of the dock, a common element, provided it complied with one of three conditions: inclusion of the fee in the condominium declaration, obtaining majority approval from the association, or proving the fee was related to expenses incurred. The court rejected the owner's argument that no fee could be charged under the Act, affirming the association's rights under the statute. Rosso's challenge to the association's fee assessment is valid only if the association failed to comply with subsection 718.111(4) and its bylaws. The association did not demonstrate that the $3.00 per linear foot per month use fee for dock space was approved by majority vote or aligned with the condominium declaration or incurred expenses. Consequently, a material fact issue exists regarding the fee's compliance with section 718.111(4), preventing summary judgment on the unpaid license fees claim. Additionally, while the association is permitted to charge for exclusive dock use, it must adhere to its bylaws. The 1989 bylaws stipulate that fees for non-temporary dock use require regulations established by the board, but the record lacks confirmation that such regulations were enacted. This raises a factual question about the board's compliance with the bylaws for dock leasing. Regarding the association's counterclaim for a permanent injunction to remove Rosso's sailboat, summary judgment is affirmed, as the association can regulate common elements without fee collection. The summary judgment on the damages counterclaim is reversed, affecting the attorney's fee award. Although the association is the prevailing party on Rosso's complaint and part of its counterclaim, only two of the five complaint counts justify attorney's fees under section 718.303, Florida Statutes (1993). A determination of the prevailing party for attorney's fees awaits resolution of the damages issue on remand.