Motion to Amend in Wayne Rees, et al Plaintiff vs. Sunblest Townhomes Homeowners Association, Inc. Defendant| Trellis.Law

On April 15, 2021 a Answer was filed involving a dispute between Palacio, Carmen, Rees, Wayne, and Sunblest Townhomes Homeowners Association, Inc., for 3 in the District Court of Broward County.

Preview
Filing # 132945906 E-Filed 08/18/2021 03:11:37 PM
th
IN THE CIRCUIT COURT OF THE 17
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA

CASE NO.: CACE-21-007714 (09)

WAYNE REES and
CARMEN PALACIO,

Plaintiffs,

SUNBLEST TOWNHOMES
HOMEOWNERS ASSOCIATION, INC.,

Defendant.
(1050.42447)

DEFENDANT'S AMENDED ANSWER AND AFFIRMATIVE DEFENSES

Defendant, SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC., by

and through its undersigned attorneys and pursuant to Florida law and the Florida Rules of Civil

Procedure, files this Amended Answer, Affirmative Defenses, and Demand for Jury Trial in

response to Plaintiffs' Complaint, and in support thereof states as follows:

INTRODUCTION

1. Defendant denies all allegations and implications in this paragraph.

JURISDICTIONAND VENUE

2. Defendant denies all allegations and implications in this paragraph.

3 Defendant denies all allegations and implications in this paragraph.

4. Defendant is without knowledge as to the allegations in this paragraph; therefore, it

is denied and strict proof is demanded thereof.

5. Defendant is without knowledge as to the allegations in this paragraph; therefore, it

is denied and strict proof is demanded thereof.

6. Defendant admits that an entity known as SUNBLEST TOWNHOMES

HOMEOWNERS ASSOCIATION, INC. exists. All other allegations and implicationsare denied.

***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/18/2021 03:11:35 PM.****
CASE NO.: CACE-21-007714 (09)
Page 2

GENERAL ALLEGATIONS

7. Defendant is without knowledge as to the allegations in this paragraph; therefore, it

is denied and strict proof is demanded thereof.

8 Defendant admits that an entity known as SUNBLEST TOWNHOMES

HOMEOWNERS ASSOCIATION, INC. exists and that the documents attached to the Complaint

as "Exhibit A" are labeled "Declaration of Covenants, Conditions, and Restrictions" and "By-Laws

of Sunblest Townhomes Homeowners Association, Inc." respectively. Both documents speak for

themselves. All other allegations and implications are denied.

9- Defendant admits that an entity known as SUNBLEST TOWNHOMES

HOMEOWNERS ASSOCIATION, INC. exists. Defendant's property interests and duties are

limited to those set forth in its governing documents and those prescribed by Florida law, both of

which speak for themselves. All other allegations and implications in this paragraph are denied.

10. Defendant denies all allegations and implications in this paragraph.

11. Defendant denies all allegations and implications in this paragraph.

12. Defendant denies all allegationsand implications in this paragraph.

13. All allegations and implications in this paragraph are denied. Defendant's property

interests and duties are limited to those set forth in its governing documents and those prescribedby

Florida law, both ofwhich speak for themselves.

14. All allegations and implications in this paragraph are denied. Defendant's property

interests and duties are limited to those set forth in its governing documents and those prescribedby

Florida law, both ofwhich speak for themselves.

15. Defendant denies all allegationsand implications in this paragraph.

16. Defendant denies all allegationsand implications in this paragraph.
CASE NO.: CACE-21-007714 (09)
Page 3

COUNT I -

BREACH OF CONTRACT

17. Defendant incorporates its responses to paragraphs one through sixteen (1-16) above

as if set forth fully herein.

18. Defendantdenies all allegationsand implications in this paragraph.

19. Defendant denies all allegations and implications in this paragraph. The documents

attached to the Complaint as "Exhibit A" are labeled "Declaration of Covenants, Conditions, and

"
Restrictions' and "IBy-Laws of Sunblest Townhomes Homeowners Association, Inc." respectively.

Both documents speak for themselves. All other allegations and implications are denied.

20. Defendant denies all allegationsand implications in this paragraph.

21. Defendantdenies all allegations and implications in this paragraph.

22. Defendant denies all allegationsand implications in this paragraph.

23. Defendant denies all allegations and implications in this paragraph.

24. Defendant denies all allegationsand implications in this paragraph.

Defendant denies all allegations and implications contained within Plaintiffs'

WHEREFORE clause.

COUNT II -

NEGLIGENCE

25. Defendant incorporates its responses to paragraphs one through sixteen (1-16) above

as if set forth fully herein.

26. Defendant denies all allegationsand implications in this paragraph.

27. All allegations and implications in this paragraph are denied. Defendant's property

interests and duties are limited to those set forth in its governing documents and those prescribedby

Florida law, both ofwhich speak for themselves.

28. Defendant denies all allegationsand implications in this paragraph.

29. Defendantdenies all allegationsand implications in this paragraph.
CASE NO.: CACE-21-007714 (09)
Page 4

30. Defendant denies all allegations and implications in this paragraph.

Defendant denies all allegations and implications contained within Plaintiffs'

WHEREFORE clause.

GENERAL DENIAL

Any allegations or implications set forth in Plaintiffs' Complaint or any Amended

Complaints not explicitly admitted herein are expressly denied.

AFFIRMATIVE DEFENSES

Defendant further responds to the allegations in Plaintiffs' Complaint by way of the

following Affirmative Defenses:

1. Defendant alleges that Plaintiffs' claims are barred because Fla. Stat. § 720.305(1)

does not establish a duty to maintain the common elements and/or limited common elements as

alleged by Plaintiff in Paragraphs 20 and 27 of the Complaint. Instead, the statute states:

1) Each member and the member's tenants, guests, and invitees, and each
association, are governed by, and must comply with, this chapter, the
governing documents of the community, and the rules of the association.
Actions at law or in equity, or both, to redress alleged failure or refusal to

comply with these provisions may be brought by the association or by any
member against:
(a) The association;
(b) A member;
(c) Any director or officer of an association who willfully and knowingly
fails to comply with these provisions; and

(d) Any tenants, guests, or invitees occupying a parcel or using the
common areas.

The prevailing party in any such litigation is entitled to recover reasonable

attorney fees and costs. A member prevailing in an action between the
association and the member under this section, in addition to recovering
his her reasonable attorney fees, may recover additional amounts as
or

determined by the court to be necessary to reimburse the member for his
or her share of assessments levied by the association to fund its expenses
of the litigation. This relief does not exclude other remedies provided by
law. This section does not deprive any person of any other available right
or renledy.

See § 720.305(1), Fla. Stat.
CASE NO.: CACE-21-007714 (09)
Page 5

Under this section of Chapter 720 of the Florida Statutes, Plaintifffails to state a cause of

action. Specifically, in Paragraph 20 of Plaintiffs' Breach of Contract claim, Plaintiffs allege that

Fla. Stat. § 720.305(1) forms a basis for Defendant's duty to maintain the common area and/or

limited common area of Sunblest Townhomes, however; the terms "common area" and "limited

common area" are altogether absent from the statute. As such, the statue alone does not form a

basis for any duties that would allow Plaintiffs to bring a negligence and/or breach of contract

cause of action.

2. Defendant alleges that Plaintiffs' claims are barred pursuant to the language of the

Declaration of Covenants, Conditions, Instructions, and By-Laws (hereinafter "Governing

Documents") that are attached to Plaintiffs' Complaint as Exhibit A. See Ex. 1. As demonstrated

in the excerpts of the Governing Documents below, Defendant, SUNBLEST TOWNHOMES

HOMEOWNERS ASSOCIATION, INC., did not have any duty to maintain the roof.

Defendant affirmatively states that Plaintiffs' characterization of the language within the

Governing Documents is misleading and incorrect. Specifically, Plaintiffs allege in Paragraphs

19-22 and Paragraphs 27-29 of the Complaint that the Governing Documents confer a duty upon

Defendant to maintain the "common areas" and "limited common areas" without employing the

definitions of those terms that are provided within the Governing Documents.

A close look at Defendant's Governing Documents demonstrates that the documents do

not state that Defendant has a duty to maintain the common areas. Instead, the Governing

Documents provide Defendant with the righi, but not the duiY to enter and maintain the exterior

of the townhouses. Furthermore, the sections preceding the section Plaintiffs appear to rely on

place the duty on the "Owners or occupants" to maintain the roof, not Defendant.

The language of the Governing Documents makes this distinction clear in Section 18 on

page 14, which states as follows:
CASE NO.: CACE-21-007714 (09)
Page 6

Article IV. Specific Provisions
Section 18. Exterior Maintenance. The premises and the improvements situated
thereof, including the adjacent
areas to the buildings, privacy walls, fences and
the "islands" contiguous to the residential units on the Lots, shall be maintained

by the Association in a manner established by the Board of Directors and the
Association shall have the right, through its agents and employees, to enter upon
said parcel and to repair, maintain, and restore the Lot and the exterior of the
buildings and any other improvements erected thereon. The cost of such exterior
maintenance shall be added to and become part of the assessment to which each
Lot is subject, as provided in ARTICLE III hereof, and shall be a lien on each lot
in favor of the Association.

See Ex. 1, Plaintiffs' Complaint at "Exhibit A."

This error in Plaintiffs' interpretation of the governing documents is emboldened by the

definitions and duties set forth in other sections of the Governing Documents. The relevant

portions relating to "common areas" and the duties of"Owners" with respect to the maintenance

of their respective roofs state as follows:

Article I. Definitions
Section 2. "Owner" shall mean and refer to the record owner, whether one or
more persons entities,
or of the fee simple title to any Lot which is a part of the
Properties, including contract sellers, but excluding those having such interest
merely as security for the performance of an obligation. Such person or entity
shall hold a Class A voting membership.

Section 4. "Common Area" refers to that portion of the property which is not
included within the perimetricalboundaries of all Townhouses and shall mean all

real and personal property owned or leased by the Association for the common

use and enjoyment ofthe owners, including the recreational area.
***

Article VI. Specific Provisions
Section 14. Party Walls.
f. No owner or occupant of a Townhome shall make any alterations or changes in
such Townhome which would structurally weaken the Party Wall or in any way
interfere with or diminish the width of the
Party Wall, and said Owners or
occupants of said Townhome shall be obligated to maintain that portion of the
Party Wall within their respective Townhome in a good state of repair, and shall
keep and maintain all portions of the Townhome (interior and exterior),
including, but not limited to the roof, plumbing and utilities, of the respective
Townhome so that the adjoining Townhome will not be damaged by reason of
such failure to maintain as herein required.

Id.
CASE NO.: CACE-21-007714 (09)
Page 7

Based on the foregoing language, it is clear that Defendant had no duty to maintain the

roofs as Plaintiffs allege in their Complaint. Therefore, Plaintiffs' negligence and breach of

contract claims are barred because Defendant could not breach a duty that it did not owe to

Plaintiffs.

3 That Defendant is entitled to setoff for all collateral sources and/or benefits

recognized under Florida law or any partial or total satisfaction of the damages sued for under

sections 46.015,768.041, and/or 768.31 ofFlorida's Statutes.

4. That Defendant is entitled to the Tort Reform Act limitations of liability and

damages as established by the Florida Tort Reform Act.

5. That there was no notice either actual or constructive as it relates to this

Defendant, or that whatever notice was provided, if any, was insufficient, as such there can be no

liability against this Defendant.

6. Plaintiffs' recovery, if any, for alleged damages to personal property must be

limited to the difference in fair market value of the allegedly damaged channels immediately

prior to the damage and the fair market value of same immediately following the alleged

damage, or, alternatively, costs of repairing the channels to their condition immediatelyprior to

the alleged damage. The original purchase price or cost of replacement goods, is not recoverable

pursuant to Florida law upon any theories advanced by Plaintiffs.

7. Defendant affirmatively alleges that it has fulfilled its duties, if any, to Plaintiffs

and that Plaintiffs' damages alleged in this suit were caused in whole or in part by Plaintiffs'

negligence and/or by the breach of their duties and should be reduced or extinguished

accordingly.

8 That Plaintiffs' damages were caused in whole or in part by third parties for

whose actions Defendant is not vicariously, secondarily, or passively responsible or liable.
CASE NO.: CACE-21-007714 (09)
Page 8

9- That Defendant is entitled to a determination of comparative fault of other entities

pursuant to section 768.81(3) of Florida's Statutes and Fabre v. Marin, 613 So.2d 1182

(Fla. 1993), and an appropriate reduction in its own liability. Pursuant to Nash v. Wells Fargo

Guard Service, Inc.,768 So.2d 1262 (Fla. 1996), this Defendant may seek amendment to identify

such other non-parties or persons as they become known and with due notice to Plaintiffs.

10. That Plaintiffs' claims against Defendant, if any, are barred in whole or in part by

Plaintiffs' failure to mitigate any damages allegedly sustained.

11. Defendant affirmatively alleges that given the course of conduct, Plaintiffs'

claims are barred by the doctrines of waiver and estoppel.

Defendant specifically reserves the right to add and/or amend its affirmative defenses,

including to identify any potential non-party tortfeasor, should further discovery and investigation

show they are applicable.

WHEREFORE, Defendant, SUNBLEST TOWNHOMES HOMEOWNERS

ASSOCIATION, INC., having fully answered Plaintiffs' Complaint, hereby demands judgment

on its AffirmativeDefenses and requests any other relief that this Court deems just and proper.

DEMAND FOR TRIAL BY JURY

Defendant, SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC.,

demands a trial by jury on all matters so triable as a matter of right.

CERTIFICATE OF SERVICE

I CERTIFY that the foregoing document has been furnished to: Marc A. Wites, Esq. and

Maxwell A. Erd, Esq., WITES LAW FIRM, Attorneys for Plaintiffs, 4400 North Federal

Highway, Lighthouse Point, FL 33064, mwites@witeslaw.com and

by e-mail and/or e-Portal on the 18th day ofAugust, 2021.

GAEBE, MULLEN, ANTONELLI& DIMATTEO
CASE NO.: CACE-21-007714 (09)
Page 9

Attorneys for Defendant
1818 S. Australian Avenue, Suite 102
West Palm Beach, FL 33409

Telephone: (561) 832-6788; Fax: (561) 835-1035

By-. /s/Erick Rodriguez
ERICK RODRIGUEZ, FL Bar 1022247

AGNIESZKA CHIAPPERINI, FL Bar 1010199
Exhibit A
cr

Filing # 125023860 E-Filed 04/15/2021 04:47:39 PM

IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA

CASE NO:

WAYNE REES and
CARMEN PALACIO,

Plaintiffs,
V.

SUNBLEST TOWNHOMES HOMEOWNERS
ASSOCIATION, INC.,

Defendant.
i

COMPLAINT

Plaintiffs Wayne Rees and Carmen Palacio ("Plaintiffs") hereby file this Complaint

against Sunblest Townhomes Homeowners Association, Inc.. C,Defendant"or "Sunblest") and

allege as follows:

INTRODUCTION

1. This is an action against Defendant for its failurein the maintenance, selection,

operation, care, upkeep, and/or installation of the common area and/or limited common area

owned and/or controlled by SunblestTownhomesHomeowners Association, Inc., which resulted

in and caused damage to Plaintiffs' Property.

JIJRISDICnQNANDYENUE

2 This Court has jurisdiction over this dispute because this complaint seeks

damages in excess of $30,000.00 dollars, exclusive of interest and attorneys' fees.

3. Venue is proper in Broward County, Florida,because the cause of action arose

in Broward County, Florida.

pARTIES
-1-
Wites Law Firm
4400 North Federal Highway Lighthouse Point. FL 33064
(954) 933-4400
4. Plaintiff Wayne Rees is over the age of majority, is a resident of Broward

County, Florida, and is otherwise suijuns.

5. PlaintiffCarmen Palacio is over the age of majority, is a resident of Broward

County, Florida, and is otherwise suijuns.

Defendant Sunblest Townhomes HomeownersAssociation, Inc. is a corporation

licensed and conducting business in the State of Florida, including Broward County, and is

otherwise sui juris.

7. Plaintiffs own a townhouse located at 4730 NW 89th Avenue, Sunrise, Florida

33351 (the "Property").

& At all times material hereto, Defendant was doing business as the homeowner's
',
association for the complex where the Property was located known as "Sunblest Townhomes.

The Declaration of Covenants, Conditions, Instructions and by-laws are attached hereto as

Exhibit A.

9. Pursuant to the Homeowner's Declaration, Defendant is an owner of common

area and/or limited common area of Sunblest Townhomes, including but not limited to, the

townhouse roofs.

10. On or about February 16, 2021 Plaintiffs sustained damage to the Property

resulting from a failure in; the roofing system that caused water to be discharged into Plaintiffs'

Property. (the "Loss").

11. Plaintiffs promptly and timely provided notice ofthe Loss and cause ofthe Loss

to Defendant.

12 Defendant improperly denied responsibility for the Loss and refused to
-2-
Wites Law Firm
4400 North Federal Highway LighthousePoint, FL 33064
(954) 933-4400
compensate Plaintiffs for their Loss.

13. Defendant was negligent due to its failure in the maintenance, selection,

operation, care, upkeep, and/or installation of the common area and/or limited common area

adjacent to Plaintiffs' property causing water to enter Plaintiffs' unit from the townhouse roof

which is an area under the control ofDefendant.

14. Pursuant to the homeowner's Declarations, maintenanceof the common area

andfor limited common area is the responsibilityof Defendant.

li As a further direct and proximate cause of Defendant's conduct, Plaintiffs have

been obligated to retain the undersigned counsel to bring this action and have agreed to pay the

undersigned counsel a reasonable fee for services rendered. Pursuant to Florida Statute §720.305

(1), Plaintiffs are entitled to recover said attorneys' fees from Defendant.

16. All conditions precedent to bringing this action have been performed by

Plaintiffs or have otherwise been waived by the Defendant.

COUNT I -

MBESCH OF CONTRACT

17. Plaintiffs: repeat the allegations set forth in paragraphs 1-16 above as if fully

restated herein.

18. Plaintiffs plead this count in the alternative to Count II for negligence.

19. Plaintiffs and Defendant are parties to a Contract known homeowner's

Declarations. The Declaration of Covenants, Conditions, Instructions and by-laws are attached

hereto as Exhibit A.

20. Pursuant to such contract andFlorida Statute §720.305(1),Defendanthad a duty to

maintain the common area and/or limited common area of Sunblest Townhomes where the

Property was located.
-3-
Wites Law Firm
4400 North Federal Highway Lighthouse Point,FL 33064
(954) 933-4400
21. Defendant breached its duty to maintain the common area and/or limited common

area ofSunblest Townhomes.

n More specifically, Defendant failed to use reasonable care in its maintenance,

selection, operation, care, upkeep and/or installation of the townhouse roof, including but not

limited to failing to maintain the townhouse roof so as to prevent and preclude water intrusion

resulting in damage to Plaintiffs' Property.

B. Additionally, Defendant breached the contract by improperly denying

responsibility for the Loss and failing to indemnify Maintiffs for the Loss.

24. As a direct and proximate cause of the Defendant's breach of contract, Plaintiffs

have suffered damages.

WHEREFORE, Plaintiffs demand against Defendant judgment for damages, including but

not limited to monetary damages, attorneys' fees pursuant to Florida Statute §720.305(1),

prejudgment interest, and any other relief this Honorable Court deems just and proper.

COUMT n -NEGUGENCE
fin the Blternativel

25. Plaintiffs repeat the allegations set forth in paragraphs 1-16 above as if fully

restated herein.

26. Plaintiffs plead this count in the alternative to Count I for breach of contract.

27. At all times material to this case, Defendant had a duty to maintain the common

area and/or limited common area of the Property, pursuant to the homeowner'sDeclaration and

Florida Statute §720.305(1).

28. Defendantbreachedits duty to maintain the common area and/or limited common

area of the property.

-4.
Wites Law Firm
4400 North Federal Highway Lighthousc Point, FL 33064
(954) 9334400
29. More specifically, Defendant failed to use reasonable care in its maintenance,

selection, operation, care, upkeep and/or installation of the townhouse roof, including but not

limited to:

a. Failihg to maintain the townhouse roof so as to prevent and preclude water

intrusion.

b. The failure to use reasonable care in the maintenance, selection, operation, care,

upkeep and/or installation of the townhouse roof caused damages to Plaintiffs

property.

WHEREFORE, Plaintiffs demand against Defendant judgment for damages, including

but not limited to property:damages, attorneys' fees pursuant.to Florida Statute §720.305(1),costs

and prejudgment interest, and any other reliefthis Honorable Court deems just and proper.

Plaintiffshereby request a trial byjury ofall issues sotriable as amatter ofright.

Dated: April 15, 2021.

RespectfullySubmitted,

WITES LAW FIRM
Attorneys for Plaintiffs
4400 North Federal Highway
LighthousePoint, FL 33064
954-933-4400; 954-354-0205 (fax)

By: /s/ MaxwellA. Erd
Marc A. Wites
Fla. Bar No. 24783
mwites@Witeslaw.com
MAXWELL A. ERD
Fla. Bar No. 1017797
merd@witeslaw.com

-5-
Wites Law Firm
4400 North Federal Highway Lighthouse Point, FL 33064
(954) 9334400
DECLARATION
OF
FQYEHAHZS,- (ONDZTIQNS AND- RESTRICTIONS

84-149858
This Declaration made the 30th day of- April

1984, by KART-MART CORPORATION. a Florida corporation, hereinafter
"
referred to as 'Declarant.

EIZMRSSRZR:
WHEREAS, Declarant is the owner of certain property in

Broward County, Florida, more particularly described as follows:

Tracts 50 and 51, SPRINGTREE LAKES, according to
the Plat thereof recorded in Plat Book 79, at Page 12,
of the Public Records of Broward County, Florida.

NOW, THEREFORE, Declarant hereby declares that all of the

properties described above shall be held, sold and conveyed sub-

ject to the following easements, restrictions, covenants, and

conditions, which are for the purpose of protecting the value

and desirability of, and which shall run with the real property
..

and be binding on all parties having any right, title or interest
=

in the described properties or any part thereof, their heirs,

successors and assigns, and shall inure to the benefit of each

owner thereof.

ARTICLE I. DEFINITIONS.
Section 1. 'Association" shall mean and refer to

SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC., a non-profit
Florida corporation, its successors and assigns.

Section 2.
"Owner" shall mean and refer to the record

owner, whether one or more persons or entities, of the fee simple

title to any Lot which is a part of the Properties, including

contract sellers, but excluding those having such interest merely

as security for the performance of an obligation. Such person or
m
M

entity shall hold a Class A voting membership.
CD
Section 3. 'Properties" shall mean and refer to that

certain property hereinbefore described, and such additions thereto

as may hereafter be brought within the jurisdiction of the Associa- @
00
tion.

W-C kART.MM ARP
. 4
Section 4. Common Area" refers to that portion of the

property which is not included within the perimetrical boundaries

of all Townhouses and shall mean all real and personal property
owned or leased by the Association for the common use and enjoy-

ment of the owners, including the recreational area.

Section 5. "Lot" shall mean and refer to any plot of land

shown upon the subdivision plan of the Properties designated for

the construction of a 'Townhome" thereon, with the exception of

the Comon Area. Each lot shall have a numerical designation
1 through 203.
Section 6. "Declarant" shall mean and refer to KART-

MART CORPORATION, a Florida corporation, its successors or assigns
if such successors or assigns should acquire more than one undev-

eloped Lot from the Declarant for the purpose of development.
The Declarant may also be an "Owner" for so long as the Declarant

shall be record owner of any Lot as defined herein, it being

understood, however, that Declarant shall not be considered an

Owner at such time as Declarant owns no property.

Section 7. "Declaration" shall mean and refer to this

Declaration of Covenants, Conditions and Restrictions applicable
to the Properties recorded in the Public Records of Broward

County, Florida.

Section 8. "Member" shall mean and refer to those persons

entitled to membership as provided in this Declaration and the

Articles of Incorporation of Sunblest Townhomes Homeowners Assoc-

iation, Inc.

Section 9. .,
'Townhome" shall mean and refer to the building
or dwelling unit to be constructed upon each of the lots within

the properties.

Section 10. .,
'Townhome n
m9
Parcel' shall mean and refer to a

"lot" as herein defined. Each lot shall have a numerical desig-
nation 1 through 203.

-2-

9
ARTICLE II. PROPERTY RIGHTS.

Section 1. Owners' Easements of Enjoyment. Every Owner

shall have a right and easement of enjoyment in and to the Com-

mon Area which shall be appurtenant to and shall pass with the

title to every Lot, subject to the following provisions:

a. The right of the Association to suspend the voting

rights and the right to the easement of enjoyment in and to the

Common Area by any Owner for any period during which any assess-

ment against his Lot remains unpaid; and for a period not to

exceed sixty (60) days for any infraction of its published rules

and regulations.

b. The right of the Association to dedicate or transfer all

or any part of the Common Area to any public agency, authority,

or utility for such purposes and subject to such conditions as

may be agreed to by the members. No such dedication or transfer

shall be effective unless an instrument consenting to and approving

such dedication or transfer by two-thirds (2/3) of the Owners as

a group has been duly recorded in the Public Records of Broward

County, Florida.

Section 2. Delegation of Use. Any Owner may delegate,

in accordance with the By-Laws, owner's right of enjoyment to

the Common Area and facilities to the members of owner's family,
or tenants, or contract purchasers who reside on the property.

ARTICLE III. COVENANT FOR MAINTENANCE ASSESSMENTS

Section 1. Creation of Lien and Personal Obligation
of Assessments. The Declarant, for each lot owned within the

Properties, hereby covenants and each Lot Owner by acceptance of

a deed for said Lot, whether or not it shall be so expressed in

any such deed or other document of conveyance, is deemed to covenant

and agrees to pay to the Association.

(1) annual assessments or charges;

(2) special assessments for capital improvements, such

assessments to be established and collected as hereinafter provided;

-3-

-. u
I:*x
L. t
...5.E-A.-..8.1. '.

j'I.4
L,

(3) special assessments for the purpose of accumulating a
reserve for landscaping the lots and for maintaining and improving

the exteriors of the townhomes in a manner and consistent with

the standards established for the community encompassed by the

association.

(4) special assessments for the operation and maintenance

of the recreational area.

The annual and special assessments, to be fixed, established

and collected from time to time as hereinafter provided, together
with such interest thereon, and costs of collection thereof, shall

be chaiged upon the Parcel and shall be a continuing lien upon

said Parcel against which each such assessment is made. This

lien shall be in favor of the Declarant, or the Association, and

shall attach and become effective from and after the time of

recordation of a Claim of Lien in the Public Records of Broward

County, Florida, stating the description of the Parcel, the name

of the Parcel Owner, the amount due and date when due, and the

lien shall continue in effect until all sums secured by the lien
shall have been fully paid. The Claim of Lien shall bear interest

at the rate of eighteen percent (18%) per annum from date of

recording until paid. Except for interest, the Claim of Lien

shall include only unpaid assessments which are due and payable

to the Association when the Claim of Lien is recorded, together

with all costs incurred or sustained by the lien claimant in

perfecting and enforcing such lien, including reasonable attorney's

fees and those attorney's fees which might be sustained in any

appeal. Upon full payment, the Parcel Owner shall be entitled

to a recordable Satisfaction of Lien. All such liens shall be

subordinate to the lien of a mortgage or other lien held by an
f:

Institutional Lender, recorded prior to the time of recording of

the Claim of Lien, and in the event the holder of a prior mortgage
lien shall accept and record a deed in lieu of foreclosure, or

obtain a certificate of title as a result of a foreclosure, the

recording of said deed in lieu of foreclosure of certificate of

-4-

---F.E
C

title, shall operate to release a subordinate claim of lien. i.
U

Such lien may be enforced by suit brought in the name of the
C.

Declarant or the Association in like manner as a foreclosure of

a mortgage on real property. In such foreclosures, the Parcel
'
Owner shall be required to pay a reasonable rental for the Parcel,

and the Declarant of the Association shall be entitled to the

i
forthwith appointment of a receiver without bond or notice to

collect the same. Each such assessment, together with such in-

terest, costs, and reasonable attorney's fees, including attorney's

fees on any appeals, shall also be the personal obligation of the

person who was the Parcel Owner at the time when the assessment

fell due and this personal obligation shall not pass to his suc-

cessors in title unless expressly assumed by them.

Section 2. Purpose of Assessments. The annual and special

assessments levied by the Association shall be

Case Info

Judge

Levenson, Jeffrey R. Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

August 18, 2021

Case Filing Date

April 15, 2021

County

Parties

Erd, Maxwell Allen Attorney for the Plaintiff
Palacio, Carmen Plaintiff
Rees, Wayne Plaintiff
Rodriguez, Erick Raul Attorney for the Defendant
Sunblest Townhomes Homeowners Association, Inc. Defendant
Marc Wites Attorneys for Defendants
Michael Dunlavy Attorney
Marc Avidano Attorneys for Plaintiffs
Agnieszka Chiapperini Attorneys for Defendants
Michael Bogen Attorney
Taylor Tyson Attorneys for Plaintiffs
Thomas Rogers Attorneys for Plaintiffs

For full print and download access, please subscribe at https://www.trellis.law/.

Answer: Wayne Rees, et al Plaintiff vs. Sunblest Townhomes Homeowners Association, Inc. Defendant

Preview

Case Info

Parties