FLORIDA APPELLATE COURT REVERSES REFORMATION OF HOA DECLARATION BASED ON STATUTE OF LIMITATIONS

Last month Florida’s Second DCA reversed an order which granted the Villages of Bloomingdale Homeowners Association’s (the Association) motion to reform its declaration to encompass residential properties that were constructed and sold after the declaration was recorded and which properties were not originally encumbered by the declaration. Hogg v. Villages of Bloomingdale I Homeowners Ass’n, Inc., No. 2D21-3724, 2023 WL 2542132, at *1 (Fla. 2d DCA Mar. 17, 2023).

In Hogg, the developer’s plan was always to construct multiple residential homes in a community called the Villages of Bloomingdale (“the Villages”) and to do so in three phases. Prior to construction of the first phase, the developer recorded a declaration which “impos[ed] various easements, covenants, and restrictions” on the residential properties which were to be part of the Villages.[i] The recorded declaration included an “Exhibit A” which identified the plats of land within the Villages that would be subject to the declaration. Notably, only the plots being developed in the first phase of the project were identified in Exhibit A of the declaration. The developer recorded the declaration in April 2005.

About fourteen years later the Association discovered the omission in Exhibit A, i.e., that none of the residences that were built in the second and third phases of the development were identified, and the resulting deficiency in the declaration, i.e., that none of those residences were subject to the terms and conditions of the declaration. The Association asked the affected homeowners to retroactively (and voluntarily) submit their properties to the easements, covenants, and restrictions outlined in the declaration, but not everyone would agree. The Association filed a reformation action in October 2019 wherein the Association sought to reform the declaration so that the residences built in the Villages in the second and third phases of construction would be subject to the declaration.

The reformation action proceeded to an evidentiary hearing and by that time only Mr. Hogg and Ms. Browne-Cason (collectively referred to as “Defendants”) remained in the case. The court entered a partial final judgment which reformed the declaration as requested by the Association; however, the court reserved jurisdiction to consider the Defendants’ affirmative defenses which included allegations that the reformation action was time-barred based on § 95.11 of the Florida Statutes, commonly referred to as the statute of limitations.

Ultimately, on summary judgment, the lower tribunal rejected Defendants’ statute of limitations defense concluding that the five-year limitation set forth for actions “on a contract, obligation, or liability founded on a written instrument” was inapplicable because that section, §95.11(2)(b), only applied to actions seeking to enforce a contract whereas the Association’s action sought “to reform documents to adequate[ly] reflect the intentions of the parties.”[ii] The court reasoned the relief requested by the Association was outside the scope of § 95.11(2)(b) and therefore not time-barred. Defendants appealed.

On appeal the Second DCA concluded that an action to reform a declaration was quite literally an action to enforce an obligation founded on a written instrument and therefore, based on the plain text of § 95.11(2)(b), the subject reformation action was intended by the legislature to be covered under the five-year statute of limitations.[iii] The DCA also noted that the lower court “never opined which alternative statute of limitation did apply to the Association’s lawsuit” thereby supporting its conclusion that § 95.11(2)(b) was the correct statute to be applied.[iv] The DCA reversed the judgment which reformed the declaration and remanded the case for further proceedings.

[i] Hogg, at 1. All future references and quotations are to this citation until indicated otherwise.

[ii] Hogg, at 2 (citing § 95.11(2)(b), Fla. Stats.). All future references and quotations are to Hogg, at 2 until indicated otherwise.

[iii] Hogg, at 3. All future references and quotations are to this citation unless indicated otherwise.

[iv] Hogg, at 2 n1.