Contractor Authorized by Condo Association to Work on Common Areas May Sue Association as Unit Owners’ Representative

Trintec Constr., Inc. v. Countryside Village Condo. Assoc., 992 So. 2d 277 (Fla. Dist. Ct. App. 2008)

This case addresses whether the term “owner” for the purpose of applying mechanic’s lien law to a condominium property and improvements to its common elements refers to:  (a) each and every unit owner in the condominium, or (b) the condominium association created by the declaration.  The association argued that lien law’s use of “owner” means each individual condominium owner such that those owners are indispensable parties.  The Court, analyzing the construction lien statute and Florida civil procedure rules as to condominium associations held that the unit owners are not indispensable parties and the roofing contractor could proceed against just the association.

Florida Statute Section 718.121(1) requires the unanimous consent of all unit owners for the imposition of any lien against the condominium property as a whole, and further provides that “liens may arise or be created only against the individual condominium parcels.”  Section 718.121(2), however, states:

Labor performed on or materials furnished to a condominium’s common elements are not the basis for a lien on the common elements, but if authorized by the association, the labor or materials are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for filing a lien against all condominium parcels in the proportions for which the owners are liable for common expenses.

Florida Rule of Civil of Procedure 1.221 states that after the developer turns over control of the condominium association, the association is the proper party to “institute, maintain, settle, or appeal actions or hearings in its name on behalf of all association members concerning matters of common interest . . . including but not limited to: (1) the common property, area, or elements; (2) the roof or structural components of a building or other improvements . . . .”

Therefore, the Third DCA, consistent with analogous cases in the Second and Fourth Districts, held that a contractor authorized by a condominium association to perform work on common areas can sue the association as the representative of the unit owners without joining the individual unit owners as indispensable parties.  The unit owners, however, are still free to exercise the rights as owners under Chapter 713, including the right to “bond off” their proportionate share of the lien amount and have remedies against the association and its officers and directors if the lien against their unit resulted from the association’s improper act or omission.

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