TOM ZERQUERA, APPELLANT,
v.
CENTENNIAL HOMEOWNERS' ASSOCIATION, INC., APPELLEE

Fla. 3d DCA | 2000-02-16
No. 3D99-1028
Before JORGENSON, COPE, and LEVY, JJ.
752 So. 2d 694 Florida District Court of Appeal, Third District (2000) Caution
Cited by 2 cases

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Synopsis

A homeowner appeals a foreclosure of his homestead property by a homeowners' association to satisfy a judgment for covenant violations and associated fees. The court affirms the foreclosure, holding that the homeowner had constructive notice of the covenants authorizing assessment liens and future amendments when he purchased the property, making the foreclosure valid.


Holding

The court held that homestead property may be foreclosed to satisfy fines treated as assessments under the Declaration because the homeowner had constructive notice of the original covenant provisions authorizing continuing liens, foreclosure, and future amendments when he took title, making later amendments and resulting fines enforceable against the homestead.


Headnotes

[1] A homeowner has constructive notice of a declaration of covenants, conditions, and restrictions, including provisions for continuing liens and future amendments, at the t…

[2] Homestead property may be foreclosed to satisfy a continuing lien if the homeowner had actual or constructive notice of the covenant creating the lien when title was acqu…

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Key Quotes

“homestead property may be foreclosed to satisfy a continuing lien on the property if the homeowner had either actual or constructive notice of the covenant which provided for said lien when the owner took title to the property”

Establishes the legal standard for foreclosure of homestead property based on the Bessemer v. Gersten test.

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Facts & Procedural History

In 1989, Zerquera purchased property in Centennial subject to a Declaration that provided for assessment liens, foreclosure rights, and amendment auth…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Tom Zerquera (“Homeowner”) appeals the trial court’s Final Judgment of Foreclosure in which the court ordered a foreclosure sale of Homeowner’s homestead to satisfy a judgment owed to Centennial Homeowners’ Association (“Centennial”). We affirm.

In 1989, Homeowner purchased Centennial property that was subject to a Declaration of Covenants, Conditions and Restrictions (“Declaration”). In particular, the Declaration contained three sections which provided that: (1) assessments would be a continuing lien on the property; (2) Centennial could foreclose on the property if the continuing lien was not paid; and (3) Centennial could amend the Declaration in the future. In 1991, Centennial amended the Declaration to provide that violators of the Declaration’s covenants could be fined and that said fines would be treated as assessments for purposes of collection.

In 1995, Centennial fined Homeowner $200 for keeping a boat and parking a truck on his property, both violations of the Declaration’s covenants. Homeowner challenged the fine in court arguing that he had no notice of the 1991 amendments.

On appeal, this Court held that the amended covenants were valid and enforceable against Homeowner and affirmed an award against Homeowner for about $21,-400, which consisted of the $200 fine, attorney fees and costs. See Zerquera v. Centennial Homeowners’ Association, Inc., 721 So. 2d 751 (Fla. 3d DCA m8)(“Zerquera I”).

On March 16, 1999, the trial court entered a Final Judgment of Foreclosure as to Homeowner. In that Order, the trial judge added approximately $9,500 in attorney’s fees and costs so that the total amount owed by Homeowner to Centennial was $31,023.79 and ordered a foreclosure sale if Homeowner did not pay the Judgment within 3 days of the Order. Homeowner now appeals the Order of foreclosure on the ground that he did not have proper notice of the 1991 amendments to the Declaration.

The issue previously before this Court in “Zerquera I” was whether fines could be imposed against Homeowner pursuant to the 1991 amendments to the Declaration. This Court found that such fines could be levied against Homeowner because Centennial had “exercised its right to amend the covenants in a reasonable manner.” Zerquera, 721 So. 2d at 752. The issue before us now is whether the fines levied against Homeowner can be enforced via a foreclosure sale of Homeowner’s homestead property pursuant to the 1991 amendments to the Declaration. As in “Zerquera I”, we find that the 1991 amendments to the Declaration are valid and enforceable. For the following reasons, we also find that Homeowner’s homestead may be foreclosed to satisfy Centennial’s $31,023.79 Judgment.

Under Bessemer v. Gersten, 381 So. 2d 1344 (Fla.1980), homestead property may be foreclosed to satisfy a continuing lien on the property if the homeowner had either actual or constructive notice of the covenant which provided for said lien when the owner took title to the property. In the instant matter, when Homeowner took title to the homestead property in 1989, he had at least constructive notice of the Declaration. In particular, Homeowner had constructive notice of the three sections of the Declaration provisions providing that: (1) assessments would be a continuing lien; (2) Centennial could foreclose the lien against the homestead property if said lien was not paid; and (3) Centennial could amend the Declaration in the future.

We find that, by virtue of these provisions, Homeowner was on proper notice when Centennial later amended the Declaration to provide that fines would be treated as assessments for purposes of collection and that, consequently, his homestead was subject to foreclosure if said fines were not paid.

Accordingly, the Final Judgment of Foreclosure is affirmed.


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Citator

Cited By

  • Andres v. Indian Creek Phase Iii-B Homeowner's Ass'n, 901 So. 2d 182 (Fla. 4th DCA 2005)
    …e separate. In any event, we find that the association documents do not provide for a continuing lien that preexisted the homestead exemption for the attorneys’ fees in question here. The trial court cites Zerquera v. Centennial Homeowners' Ass’n, 752 So. 2d 694 (Fla. 3d DCA 2000), in its footnote defining assessment. In Zerquera, the association’s declarations provided that fines against a homeowner were to be treated as assessments and assessments were continuing liens on the property. Therefore, fines we…

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