SOUTHWIND LAKE HOA

v.

PUDLIT 2 JOINT VENTURE

3930 Max Place Boynton Beach, FL 33436 veronicamsplegal.com

PER CURIAM.

This appeal raises the question of the extent a homeowners' association's declaration can control over the plain terms of a statute. The County Court below determined the terms of a declaration controlled and granted summary judgment in favor of Appelle, Pudlit 2 Joint Venture LLP ("Pudlit 2"). Because we find the trial court erred in granting Pudlit 2's motion for summary judgment, we reverse. BACKGROUND

On December 2, 2009, December 31, 2009, and July 30, 2010, Pudlit 2 acquired legal title to three separate properties located in Boca Raton, Florida, following foreclosures of mortgages on the properties. Appellant, Southwind Lake Homeowner's Association, Inc. ("Southwind"), is the homeowners' association for all three properties. The properties at issue are subject to a Declaration of Protective Covenants and Restrictions (hereinafter "the Declaration"). Article VI of the Declaration requires property owners subject to the Declaration to pay certain assessments each year. Article VI, paragraph F provides in relevant part:

If the assessments are not paid on the date when due as provided by the Board, then such assessment shall become delinquent. The personal obligation of the then owner to pay such assessment, however shall remain his or her personal obligation for the statutory period and shall not pass to his or its successors in title unless expressly assumed by them.

(emphasis added).

In April and September of 2010, Southwind sought payment of unpaid assessments remaining on Pudlit 2's newly acquired properties. Pudlit 2 paid the unpaid assessments under protest. On March 7, 2013, Pudlit 2 filed the underlying action seeking to recover the assessments paid under protest, arguing the Declaration required no such payments. Southwind moved for Summary Judgment on the grounds section 720.3085(2)(b) required payment of the unpaid fees and Pudlit 2 cross-moved for summary judgment based upon the language of the Declaration. The Honorable Reginald R. Corlew granted Pudlit 2's motion and this timely appeal followed. STANDARD OF REVIEW

A homeowners' association declaration serves as a "contract between the [association] and its members." Coral Lakes Cmty Ass'n, Inc. v. Busey Bank, N.A., 30 So. 3d 579, 584 (Fla. 2d DCA 2010). An appellate court reviews a trial court's interpretation of a contract de novo. Klinow v. Island Court at Boca W. Prop. Owners' Ass'n. Inc., 64 So. 3d 177, 180 (Fla. 4th DCA 2011). Any factual determinations made by the trial court in examining a contract are entitled to deference if they are "supported by competent, substantial evidence." Id. Statutory interpretation is a question of law. GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007). Questions of law are reviewed de novo on appeal. See, e.g., Scalice v. Orlando Reg'l Healthcare, 129 So. 3d 215, 216 (Fla. 5th DCA 2013).

ANALYSIS AND LEGAL CONCLUSIONS

At issue in this case are the terms of both the Declaration and section 720.3085(2)(b), Florida Statutes. Chapter 720, Florida Statutes, governs the management and operation of homeowners' associations. Section 720.3085(2)(b) provides in relevant part:

A parcel owner is jointly and severally liable with the previous parcel owner for all unpaid assessments that came due up to the time of transfer of title. This liability is without prejudice to any right the present parcel owner may have to recover any amounts paid by the present owner from the previous owner. A "parcel owner" is "the record owner of legal title to a parcel." § 720.301(12), Fla. Stat. (2014). Article VI, paragraph F of the Declaration plainly renders a parcel owner not liable for unpaid assessments on the property at the time of title transfer. Southwind appeals from the lower court's finding that the terms of the Declaration control over the statute in this case.

A. Section 720.3085(2)(b) Mandates Payment for the Unpaid Assessments.

When construing a statute, the Court must first look to the statute's plain language. Edgar, 967 So. 2d at 785. If the statute's plain language is clear, "this Court's task goes no further than applying the plain language of the statute." Id. Section 720.3085(2)(b) plainly states that a parcel owner "is jointly and severally liable" for unpaid assessments, not that the parcel owner may or can be jointly and severally liable. As written, the statute mandates a parcel owner who takes title to property "is" jointly and severally liable for any unpaid assessments on the property. Therefore, Pudlit 2 is liable for unpaid assessments on the property unless it is permissible for the Declaration to state otherwise.

"[P]arties are free to contract around a state law so long as there is nothing void as to public policy or statutory law." Franks v. Bowers, 116 So. 3d 1240, 1247 (Fla. 2013). “A contract which violates a provision of... a statute is void and illegal, and will not be enforced." Harris v. Gonzalez, 789 So. 2d 405, 409 (Fla. 4th DCA 2001). The Declaration purports to allow Pudlit 2 to avoid liability for unpaid assessments. This is plainly contrary to the terms of section 720.3085(2)(b), which specifically states owners such as Pudlit 2 are liable for such assessments. Because Article VI, paragraph F of the Declaration absolves Pudlit 2 of liability mandated by statute, it cannot be enforced.

B. Pudlit 2's Counterarguments are Rejected.

Pudlit 2 argues enforcement of the statute infringes on the right to contract. Despite the importance of freedom of contract, courts will not enforce contractual provisions that are contrary to the law. See Franks, 116 So. 3d at 1247 (noting "[w]e do not take lightly the freedom of contract, but we find that the [contract] blatantly contravenes the intent provided by the Florida Legislature" when refusing to enforce contract). As discussed above, Article VI, paragraph F clearly contravenes section 720.3085(2)(b) and therefore it cannot be enforced regardless of the "freedom of contract." Related to this argument is Pudlit 2's contention that section 720.3085(2)(b) does not trump the Declarations because the statute does not pronounce public policy. "Public policy is determined by the legislature through its statutory enactments." Saunders v. Saunders, 796 So. 2d 1253, 1254 (Fla. 1st DCA 2001). The legislature here has enacted a statute mandating the liability of subsequent property owners for any unpaid assessments on the property. Pudlit 2's argument regarding freedom of contract and public policy is rejected.

Pudlit 2 argues its reliance on the terms of the Declaration at the foreclosure sale requires enforcement of the Declaration as written. Pudlit 2 took title to the properties at issue in December of 2009 and July of 2010. Section 720.3085 took effect on July 1, 2007. 2007 Fla. Sess. Law Serv. Ch. 2007-183. Pudlit 2 cannot assert reliance on a contractual provision rendered unenforceable by a statute passed before it ever contracted with Southwind. Cf. Coral Lakes Cmty. Ass'n, Inc. v. Busey Bank, N.A., 30 So. 3d 579, 584 (Fla. 2d DCA 2010) (refusing to apply section 720.3085 to mortgagee where mortgagee was party to declaration before statute's passage). Pudlit 2 was on notice of the terms of the statute when it purchased the property and therefore its reliance argument is rejected.

Pudlit 2 also argues section 720.3085(2)(b) cannot supersede its rights as an intended third-party beneficiary. A third-party beneficiary is entitled to enforce its vested rights under the terms of a contract. Ecoventure WGV, Ltd. v. Saint Johns Northwest Residential Ass'n, Inc., 56 So. 3d 126, 127-28 (Fla. 5th DCA 2011). In Ecoventure, a mortgage was extended to property in 2001 and, after default, purchased by the mortgagor via foreclosure sale in 2008. Id. at 127. The mortgagor was then asked to pay unpaid assessments under section 720.3085(2)(b) and contrary to the operative homeowners' association declaration. The Fifth District Court of Appeal determined the mortgagor was entitled to enforce the terms of a homeowners' declaration because "[i]mposing section 720.3085, which was enacted after the mortgage was extended, completely alters [the mortgagor]'s vested rights by making it jointly and severally liable with the 'previous parcel owner....'" Id. (emphasis added). The instant case provides the converse scenario. Here, Pudlit 2 purchased the property after the statute's enactment. Therefore, the statute cannot be said to have impermissibly impaired any of Pudlit 2's rights, as any rights it had in the Declaration vested well after the statute's passage.¹

Section 720.3085(2)(b) mandates a successful bidder at a foreclosure auction is jointly and severally liable for any unpaid assessments remaining on the property. Because Article VI, paragraph F allows for Pudlit 2 to avoid this liability, Article VI, paragraph F is contrary to the law. The trial court erred in granting Pudlit 2's cross-motion for summary judgment and denying Southwind's motion for summary judgment. Accordingly, the decision of the trial court is REVERSED and the case REMANDED with instructions to enter judgment in favor of Southwind. Southwind's Motion for Attorney Fees and Costs is GRANTED pursuant to section 720.305, Florida Statutes, and the matter is remanded to the lower court to determine a reasonable amount thereof. Pudlit 2's Motion for Attorney Fees and Costs is DENIED.

OFTEDAL and GOODMAN, JJ., CONCUR. BARKDULL, J., dissents without opinion.

N 1 Pudlit 2 also argues the plain language of section 720.3085(2)(b) justifies the trial court's decision. This argument is rejected for the reasons set forth supra.