In Hibbs Grove Plantation Homeowners Association, Inc. v. Aviv, a homeowners’ association accused a pair of homeowners of violating the community’s declarations by failing to remove mold and mildew from the exterior of their home. Two sections of the declaration covered mold and mildew. The first, Section 11, provided that appurtenances must be well maintained in “first class, good, safe, clean, neat, and attractive condition.” Additionally, Section 12.34 provided that any roof or exterior surfaces, along with the pavement, must be pressure treated within 30 days’ notice by the Architectural Control Committee. The association mailed the homeowners a demand letter identifying these alleged violations.
In response, the homeowners sent a letter to the association’s attorney, claiming that they had retained a contractor to take care of the pressure washing during the upcoming week. The parties did not communicate during the coming week, and the homeowners’ association sought an order compelling the homeowners to complete the power washing to remove the mold and mildew.
Two days later, the homeowners sent a letter to the homeowners’ association, attaching a copy of a receipt for the cleaning payment and photographs illustrating the cleaned walls. The homeowners then moved for a motion to dismiss the complaint, based on an alleged failure to state a cause of action. During the hearing on the motion, the court informed the association’s lawyer that if the association proceeded, and the homeowners had complied with the original demand, the court would assess costs and fees against the association. The court then denied the homeowners’ motion to dismiss, noting that a motion for summary judgment was the appropriate remedy.
The homeowners then filed a motion for summary judgment, which the court granted despite evidence from the association showing that the homeowners had failed to fully remove the mold and mildew from the home’s exterior. The court also awarded attorneys’ fees to the homeowners. The association appealed.
The Fourth District Court of Appeal reversed the lower court’s ruling, based on a plain reading of the association’s complaint, which established that the homeowners had sufficient notice that the mold and mildew on the walls’ exteriors constituted violations of the declarations. Also, the court noted that the fact that the association was seeking an order compelling the homeowners to perform pressure cleaning in its prayer for relief did not nullify the fact that the homeowners may have needed to complete further washing if the initial service did not fully clean the mold and mildew on the walls’ exteriors.
If you are involved in a dispute involving a homeowners’ association, the dedicated real estate lawyers at Lusk, Drasites, & Tolisano have the experience necessary to help you assert your rights. We will assist you with evidence gathering, negotiations, and bringing your best claim possible at trial if the matter reaches that stage. Proudly serving clients throughout Southwest Florida, including in Fort Myers, Naples, and Cape Coral, we offer a free consultation to discuss your situation. Call us at 1-800-283-7442 or contact us online to set up your appointment now.