New Change in Florida Condominium Act should Impact Attorney's Fee Awards in Litigation

            Florida Statute 718.303, which governs condominium associations, is titled “Obligations of owners and occupants; remedies.” Section 718.303(1) grants condominium associations and unit owners the power to file certain actions against: (1) an association; (2) a unit owner; (3) directors; and/or (4) tenants or other invitees occupying a unit. Until June 30, 2021, Section 718.303(1) applied to “[a]ctions for damages or for injunctive relief, or both, for failure to comply” with Chapter 718, Florida Statutes, and/or a condominium’s governing documents. However, effective July 1, 2021, the Florida Legislature amended Section 718.303(1), by replacing “[a]ctions for damages or for injunctive relief” with the broader language of actions “at law or in equity.”

            Under Florida law, each party is responsible for their own attorneys’ fees absent a contract or statute stating otherwise. Importantly, Section 718.303(1) provides that the prevailing party in such actions is entitled to recover attorney’s fees from the non-prevailing party. Thus, prior to the amendment of Section 718.303(1), a prevailing party in an action for damages or for injunctive relief under that statute was entitled to attorney’s fees. But now prevailing parties are entitled to an award of attorney’s fees in actions at law or in equity, or both relating to the failure to comply with Chapter 718 or the governing documents.

            Declaratory judgment actions are common causes of action raised in Chapter 718 proceedings. For this action, a plaintiff usually maintains that declaratory relief is needed on an issue where there is uncertainty as it relates to the parties’ rights, duties, and status. Declaratory relief is neither damages nor injunctive relief. Thus, a prevailing party under the prior version of Section 718.303(1) would not have been entitled to recover attorney’s fees from the non-prevailing party. For example, in Angelo’s Aggregate Materials, Ltd. v. Pasco Cty., 118 So. 3d 971, 975 (Fla. 2d DCA 2013), the appellate court construed “damages or injunctive relief” expressed in a county ordinance “to apply only to damages and injunctions and not to declaratory actions.”

            But now Section 718.303(1) specifies actions “at law or in equity,” and courts should interpret the statute by concluding that attorney’s fees are available in declaratory judgment actions. Florida Statute 720.305(1), which governs litigation in the homeowners’ associations context, refers to “[a]ctions at law or in equity” and has done so for some time. In Holiday Isle Improvement Ass’n, Inc. v. Destin Parcel 160, LLC, 257 So. 3d 582, 583 (Fla. 1st DCA 2018), the appellate court concluded that a developer who prevailed in a declaratory judgment action was entitled to attorney’s fees under Section 720.305(1).

            In conclusion, the Legislature’s recent amendment to Section 718.303(1) provides for an award of prevailing-party attorney’s fees in particular actions “at law or in equity,” which should include declaratory judgment actions—consistent with the HOA Act. The question that courts will need to grapple with is whether the amendment will apply retroactively to declaratory actions pending on July 1, 2021 or whether the amendment will have prospective application only.

JEREMY DICKER, Esq.