In a recent case,
Kelly
v. Duggan, 282 So.3d 969 (Fla. 1st D.C.A. 2019),
out of Florida’s First District Court of Appeals looked at
whether condominium association assessments qualify as
“consumer debts” under the Florida Consumer Collection
Practices Act (FCCPA). The FCCPA, Florida Statutes §559.55
et seq. (“FCCPA”) and its federal counterpart, Federal Fair
Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”)
protect consumers from unfair and deceptive debt collection
activities and regulate consumer debt collection in Florida.
Like the FDCPA, the FCCPA prohibits creditors and debt
collectors from engaging in fraudulent, abusive, and
harassing tactics in collecting debts for the State of
Florida.
In Duggan, a dispute arose between a homeowner and
condominium association concerning disputed past due
assessments. A condominium owner alleged that the president
of the Association violated the FCCPA by locking the unit
owner out of a storage unit, making derogatory public
statements about the unit owner, and disclosing information
about the unit owner’s reputation to a vendor. The unit
owner claimed that the president’s actions violated the
terms of the FCCPA. The trial court dismissed the unit
owner’s complaint citing a previous case from Florida’s
Fifth District Court of Appeals, Bryan v. Clayton, 698 So.
2d 1236 (Fla. 5th D.C.A. 1997), which held that the FDCPA
and the FCCPA’s definition of “debt” excludes maintenance
assessments owed to a homeowner’s Association.
The Court held that condominium assessments qualify as
“consumer debts” under the FCCPA and reversed the dismissal
of the unit owner’s complaint, and remanded for further
proceedings. The Court reasoned that for the FCCPA to apply,
the payment obligation or “debt” must arise (1) from a
consumer out of a (2) money, property, insurance, or
services transaction, which is (3) primarily for personal,
family, or household purposes. The Appellate Court reasoned
that because a purchaser must contractually agree to pay a
condominium or homeowner association assessments as a
prerequisite to purchasing, that purchaser takes on “debts”
for those assessments under the FCCPA.
Accordingly, community associations and their board members
should tread carefully in collecting assessments to prohibit
running afoul with the FCCPA and FDCPA by consulting with an
attorney to ensure the Association and its agent’s practices
are compliant with both the state and federal law.