Affidavit of Annual Budget Mailing Critical to Ability to Collect Assessments

In a recent case heard in Pinellas County, Florida the Court denied the homeowners association entitlement to an award of its assessments the community association manager filed an “ambiguous” affidavit to prove that the notice of annual budget meeting was mailed each year as required by the bylaws.  TOM BROWN, Appellant, v. NEIGHBORHOOD F. HOMEOWNERS’ ASSOCIATION, INC., Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 13-000016AP-88A. UCN 522013AP000016XXXXCI. August 19, 2013. Appeal from Final Judgment Pinellas County Court. Walt Fullerton, Judge. Counsel: Timothy W. Weber and Amanda M. Adams, St. Petersburg, for Appellant. James N. Casesa and Jessie E. Bowden, St. Petersburg, for Appellee.

The Association filed a complaint seeking damages for Mr. Brown’s alleged failure to pay in full assessments and monthly homeowner association maintenance fees for the months of October 2007 through December 2011. Mr. Brown alleged that the Association failed to properly levy the assessments in accordance with the Declarations of Covenants, Conditions, and Restrictions of the Association.  The Association filed a Motion for Summary Judgment and supported the motion with the “Affidavit of Proof of Claim” executed by Tabetha Cetrangola, Director of Management Services for the Association.

Although the trial court entered summary judgment for the association, the circuit court reversed.  On appeal the circuit court found that the trial court overlooked genuine issues of material fact as to whether the Association met its burden to prove that it properly levied the assessments in accordance with its Bylaws.

The Bylaws required the association retain the post office certificate of mailing as proof it mailed a notice of the annual budget meeting to each homeowner.

The association relied upon an “Affidavit of Proof of Claim” executed by the community association manager stating that Notice of the Annual Meeting was given to each parcel owner in accordance with the Bylaws for the years 2007, 2008, 2009, 2010, and 2011. However, the statement in the affidavit that “he/she is personally aware of the facts and circumstances surrounding this case” was ruled to be too ambiguous. The court also was troubled that there was not a  specific statement that the affiant had personal knowledge that the 2007, 2008, 2009, 2010, and 2011 Notices of Annual Meeting were mailed to all homeowners.

The lesson from this case is for the secretary or community association manager responsible for mailing such notices to complete an affidavit every year and to retain the original affidavit with the association’s records.  This would enable the association to refute any such claims by means of the contemporaneous affidavit of the individual who actually sent the notices.  In the event of a change in association management, such record keeping could be critical to enabling the association to collect its assessments.  Another lesson from this case is the peril of allowing assessments to accrue over multiple years.  Effective collection policies should place accounts with the association’s attorney in the same year as the assessments are levied.  A 2012 case seeking recover of 2007 assessments invites challenges such as in this case.