       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

      VALENCIA RESERVE HOMEOWNERS ASSOCIATION, INC.,
                         Appellant,

                                     v.

              BOYNTON BEACH ASSOCIATES, XIX, LLLP,
                           Appellee.

                              No. 4D18-1320

                            [August 28, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Peter   D.    Blanc,     Judge;   L.T.   Case     No.
502016CA007123XXXXMBAB.

   Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for appellant.

   Mark F. Bideau and Robert R. Kane III of Greenberg Traurig, P.A., West
Palm Beach, and Julissa Rodriguez and Jay A. Yagoda of Greenberg
Traurig, P.A., Miami, for appellee.

BOATWRIGHT, JOE, Associate Judge.

   Appellant, Valencia Reserve Homeowners Association, Inc. (“HOA”),
appeals the circuit court’s final order granting partial summary judgment
in favor of Appellee, Boynton Beach Associates XIX, LLLP (“Developer”).
The HOA challenges the Developer’s use of certain monies collected from
homeowners to offset the Developer’s financial obligation to the HOA.
Specifically, the HOA claims that the Developer’s use of the “working fund
contribution” to offset its financial obligation to the HOA is prohibited by
the Homeowners’ Association Act (“HOA Act”), codified in Chapter 720,
Florida Statutes. We hold that the Developer’s use of the working fund
contributions to offset its financial obligation to the HOA does not
contravene Chapter 720. Therefore, we affirm the decision below.

                             BACKGROUND

   Valencia Reserve is a single-family home residential community located
in Palm Beach County. Valencia Reserve’s HOA was established and
governed pursuant to a Declaration of Covenants, Restrictions and
Easements (“declaration”) and the HOA Act. The Developer controlled the
HOA from its inception until the date of turnover, when the Developer gave
control of the HOA to the community’s homeowners.

    According to the declaration, the Developer was required to pay its
share of assessments on any lot owned by the Developer while the
Developer was in control of the HOA. Pursuant to the declaration and the
HOA act, the Developer had the right to excuse itself from payment of its
share of assessments related to its lots so long as the Developer obligated
itself to pay the deficit—i.e., any operating expenses incurred during the
guarantee period which exceeded the assessments receivable from other
members. The guarantee period began when the Developer recorded the
declaration and ended upon the turnover date.

   The declaration defined the term “deficit” as the difference between the
operating expenses incurred by the HOA during the guarantee period and
the sum of: 1) the amounts assessed as guaranteed assessments against
owners during the guarantee period; 2) the “working fund contributions”;
and 3) any other income of the HOA.

    In order to offset the deficit obligation, the Developer used a provision
in the declaration called the “Working Fund Contribution.”               The
declaration’s section entitled “Working Fund Contribution” states as
follows:

      Each Owner who purchases a Lot with a Home thereon from
      [the Developer] shall pay to the [HOA] at the time legal title is
      conveyed to such Owner, a “Working Fund Contribution.” The
      Working Fund Contribution shall be an amount equal to a
      three (3) months’ share of the annual, non-abated Operating
      Expenses applicable to such Lot pursuant to the initial Budget
      . . . . The purpose of the Working Fund Contribution is to
      insure that the [HOA] will have cash available for initial start-
      up expenses, to meet unforeseen expenditures and to acquire
      additional equipment and services deemed necessary or
      desirable by the Board. Working Fund Contributions are not
      advance payments of Individual Lot Assessments and shall
      have no effect on future Individual Lot Assessments, nor will
      they be held in reserve. . . . Working Fund Contributions . .
      . may also be used to offset Operating Expenses, both during
      the Guarantee Period . . . and thereafter.

   The Developer elected to excuse itself from paying its share of
assessments and thereby obligated itself to pay the deficit incurred during

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the guarantee period. Before the turnover, the Developer used the working
fund contributions to satisfy the deficit, as authorized by the above
provision.

   The HOA then sued the Developer, claiming that the working fund
contributions could not be used to offset the deficit obligation under the
HOA Act. Both parties filed cross motions for summary judgment. The
circuit court granted summary judgment in favor of the Developer, finding
that the working fund contributions could be used to offset the deficit
amount. This appeal follows.

                         STANDARD OF REVIEW

   A trial court’s interpretation of a declaration of a homeowners’
association is subject to de novo review. Klinow v. Island Court at Boca W.
Prop. Owners’ Ass’n, Inc., 64 So. 3d 177, 180 (Fla. 4th DCA 2011). “The
constitution and by-laws of a voluntary association, when subscribed or
assented to by the members, becomes a contract between each member
and the association.” Waverly 1 & 2, LLC v. Waverly at Las Olas Condo.
Ass’n, Inc., 242 So. 3d 425, 428 (Fla. 4th DCA 2018) (citation omitted).
“Issues of contract and statutory interpretation are reviewed de novo as
they raise questions of law.” MacKenzie v. Centex Homes, 208 So. 3d 790,
793 (Fla. 5th DCA 2016).

                            APPLICABLE LAW

   “When the language of the statute is clear and unambiguous and
conveys a clear and definite meaning, there is no occasion for resorting to
the rules of statutory interpretation and construction; the statute must be
given its plain and obvious meaning.” A.R. Douglass, Inc., v. McRainey,
137 So. 157, 159 (Fla. 1931). “This court is without power to construe an
unambiguous statute in a way which would extend, modify, or limit its
express terms or its reasonable and obvious implications. To do so would
be an abrogation of legislative power.” Am. Bankers Life Assur. Co. of Fla.
v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968). “When a statute is
susceptible to only one reasonable interpretation, the plain language of the
statute controls.     Only where the plain language of a statute is
ambiguous—where a reasonable person could find two different meanings
leading to two different outcomes—will this Court resort to the tools of
statutory construction.” See MacKenzie, 208 So. 3d at 793 (citation
omitted). Finally, “[a] statute should be interpreted to give effect to every
clause in it, and to accord meaning and harmony to all of its parts.”
Giamberini v. Dep’t of Fin. Servs., 162 So. 3d 1133, 1136 (Fla. 4th DCA


                                     3
2015) (citation omitted). “A single word or provision of a statute cannot be
read in isolation.” Id.

   “The purposes of [the HOA Act] are to give statutory recognition to
corporations not for profit that operate residential communities in this
state, to provide procedures for operating homeowners’ associations, and
to protect the rights of association members without unduly impairing the
ability of such associations to perform their functions.” § 720.302(1), Fla.
Stat. (2018). To this end, Section 720.309(1), Florida Statutes (2018),
states:

      Any grant or reservation made by any document, and any
      contract that has a term greater than 10 years, that is made
      by an association before control of the association is turned
      over to the members other than the developer, and that
      provides for the operation, maintenance, or management of
      the association or common areas, must be fair and
      reasonable.

   With regard to a developer’s financial obligation to an HOA before
turnover, Section 720.308(1)(b), Florida Statutes (2018), provides:

      While the developer is in control of the homeowners’
      association, it may be excused from payment of its share of
      the operating expenses and assessments related to its parcels
      for any period of time for which the developer has, in the
      declaration, obligated itself to pay any operating expenses
      incurred that exceed the assessments receivable from other
      members and other income of the association.

Thus, Section 720.308(1)(b) allows a developer to forego paying HOA
assessments on lots which it owns provided that the developer agrees “to
pay any operating expenses incurred that exceed the assessments
receivable from other members and other income of the association.” Id.

   If a developer chooses to rely upon Section 720.308(1)(b), the
developer’s potential financial obligation to the HOA is calculated using a
formula outlined in Section 720.308(5), Florida Statutes (2018). Section
720.308(5) provides:

      The guarantor’s total financial obligation to the association at
      the end of the guarantee period shall be determined on the
      accrual basis using the following formula: the guarantor shall
      pay any deficits that exceed the guaranteed amount, less the

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      total regular periodic assessments earned by the association
      from the members other than the guarantor during the
      guarantee period regardless of whether the actual level
      charged was less than the maximum guaranteed amount.

In other words, at the end of the guarantee period, when the developer
turns over control of the HOA to the homeowners, the developer must pay
“any deficits that exceed the guaranteed amount, less the total regular
periodic assessments” received from other HOA members. Id.

    An “assessment,” as defined by Section 720.301(1), Florida Statutes
(2018), is a “sum or sums of money payable to the association, to the
developer or other owner of common areas, or to recreational facilities and
other properties serving the parcels by the owners of one or more parcels
as authorized in the governing documents, which if not paid by the owner
of a parcel, can result in a lien against the parcel.” Further, Section
720.308(1) and (1)(a), Florida Statutes (2018), provides that “the governing
documents must describe the manner in which expenses are shared and
specify the member’s proportional share thereof” and “assessments levied
pursuant to the annual budget or special assessment must be in the
member’s proportional share of expenses as described in the governing
document.” Notably, Sections 720.308(6) and 720.308(4)(b), Florida
Statutes (2018), prohibit the developer from using “[a]ny portion of the
parcel assessment which is budgeted for designated capital contributions
of the association” to pay for operating expenses.

   If an HOA declaration’s terms contravene a governing statute, the term
is deemed invalid. Palm Bay Towers Corp. v. Brooks, 466 So. 2d 1071,
1074 (Fla. 3d DCA 1984). However, a declaration’s terms are afforded a
“very strong presumption of validity which arises from the fact that each
individual [lot] owner purchases his [lot] knowing of and accepting” the
declaration’s terms. Hidden Harbour Ests., Inc., v. Basso, 393 So. 2d 637,
639 (Fla. 4th DCA 1981).

                                ANALYSIS

   The issue before this Court is whether the Developer’s use of the
working fund contributions to offset its deficit obligation is prohibited by
Chapter 720 and, in particular, Section 720.308. We begin our analysis
by noting that the statutory provisions at issue in the instant case are
clear and unambiguous such that this Court has no occasion to resort to
the rules of statutory construction. See MacKenzie, 208 So. 3d at 793.
Thus, we must give the relevant provisions in Chapter 720 their plain and
obvious meanings. In doing so, we hold that the declaration’s terms, which

                                     5
permitted the Developer to use the working fund contributions to offset its
deficit obligation, did not contravene Chapter 720. Therefore, we affirm
the circuit court’s final order granting partial summary judgment in the
Developer’s favor for the following reasons.

    First, the declaration’s section entitled “Working Fund Contribution”
clearly stated that each lot owner would be obligated to pay an amount
equal to three months’ share of the initial budget’s annual, non-abated
operating expenses. The declaration specified that these funds were due
at the time legal title was conveyed to the lot owner. Significantly, the
declaration specifically stated that these funds could be used for, among
other things, initial startup expenses, unforeseen expenditures, and “to
offset Operating Expenses, both during the Guarantee Period . . . and
thereafter.” The declaration also explicitly stated that the working fund
contribution could be used to reduce the operating expense deficit. As the
declaration contained these terms at the time of recording, every Valencia
Reserve lot owner agreed to pay the working fund contribution and knew
that these funds could be used to cover operating expenses and offset the
Developer’s deficit obligation. See Hidden Harbour Ests., Inc., 393 So. 2d
at 639. Given that each lot owner expressly agreed to these terms upon
completing the property purchase, we similarly find that the declaration’s
provision authorizing the Developer to use the working fund contributions
to offset its deficit obligation was “fair and reasonable” as required by
Section 720.309(1).

   Second, the Developer’s use of the working fund contributions to pay
for operating expenses did not violate Sections 720.308(4)(b) and
720.308(6). Under these sections, a developer may not pay for operating
expenses using lot assessments which have been budgeted for designated
capital contributions. Here, the working fund contributions were not
budgeted for designated capital contributions, thus, Sections
720.308(4)(b) and 720.308(6) do not apply.

   Third, we agree with the circuit court’s conclusion that the working
fund contributions qualified as regular periodic assessments for the
purpose of calculating the Developer’s final deficit obligation under Section
720.308(5). Per the declaration, all lot owners were required to pay the
working fund contribution at the time of conveyance. The declaration
further stated that the working fund contributions could be used to pay
the HOA’s operating expenses or offset operating expenses during or after
the guarantee period.       Under Chapter 720, nothing prevents an
assessment from being used to pay an HOA’s operating expenses.
Consequently, the working fund contribution would qualify as an
assessment as it could be used to pay the expenses of the HOA.

                                     6
    Although only paid once, the working fund contribution was equal to
three months’ share of the annual regular assessments calculated
pursuant to the initial budget. In essence, the working fund contribution
was the first regular periodic assessment, due as an upfront, lumpsum
payment. Thereafter, periodic payments were due at regular intervals set
by the declaration.      Accordingly, the working fund contribution is
consistent with a regular periodic assessment that could be used to pay or
offset operating expenses.

   In conclusion, the use of the working fund contributions to offset the
Developer’s deficit obligation did not violate the HOA Act. We find nothing
in Chapter 720 that prohibits the Developer’s action in this case. If the
legislature wishes to prevent such action, it can do so by enacting
legislation to that effect.

   Finally, we find no merit to the HOA’s argument that genuine issues of
material fact precluded summary judgment. The parties filed cross
motions for summary judgment and stipulated that there were no material
facts in dispute. Moreover, the HOA has not identified any disputed
material facts to support its argument that summary judgment was
improper.

   Therefore, we affirm the decision below.

   Affirmed.

LEVINE, C.J. and KUNTZ, J., concur.

                           *          *       *

   Not final until disposition of timely filed motion for rehearing.




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