by Jeffrey Rembaum/ Published March 2015
A long, long time ago, in a land far, but not too far, away, England, there were two distinct court systems—the court of law, the Court of the King’s Bench, which followed the letter of the law, and the Court of Chancery, which was a court of equity and had the ability to do what was fair and equal. Although these two courts have had a sordid past, they continue to exist today in our very own court system; however, now the same judge may hear both legal and equitable claims. In general, when the law provides a remedy, the principles of equity cannot be employed by the court.
A core principle in the court of law is inclusio unius est exclusio alterius. It means that the inclusion of one thing is the exclusion of another, meaning that if the law says you can have apples, then you can’t have oranges. While this is a general statutory interpretation principal, the Supreme Court of Florida held in the case of Granada Lakes Villas Condominium Association, Inc. v. Metro-Dade Investments Company that the enumerated instances in which a court could appoint a receiver for a condominium association as provided for by Florida Statutes did not limit the court’s power to appoint a receiver but actually expanded upon the court’s inherent, equitable powers to do so, which turned out to be pretty good for Florida’s community associations.
In Granada Lakes Villas, the developer, Metro-Dade Investments Company, and the community’s master association, sued the condominium association, Granada Lakes Villas Condominium Association, Inc., for its failure to pay the developer and the master association their share of the related expenses after collecting the fees and assessments from the condominium’s unit owners. As a result of the condominium association’s failure to pay, it was argued by the developer and the master association that they were unable to pay for utilities and maintenance expenses for the common areas, which resulted in ongoing health nuisances on the property.
At trial, the developer filed an emergency motion for the appointment of a receiver over the condominium association in order to facilitate the collection of the fees and assessments from the unit owners and to perform a proper accounting. Although the trial court had determined that a receivership would be helpful to the court, the trial court held that it had no power under Chapter 718 Florida Statutes to appoint a receiver because Chapter 718 Florida Statutes enumerates certain instances when the court may appoint a receiver, including failure of the association to elect enough directors to establish a quorum, failure of the association to act after a natural disaster, and the need to liquidate and close a non-profit corporation as found in Chapter 617 Florida Statutes, which governs non-profit corporations. The trial court reasoned that because the statute itemized only these few grounds for appointment of a receiver, the court could not appoint a receiver unless one of these grounds was applicable.
However, on appeal, the Second District Court of Appeal reversed and remanded the case back to the trial court, concluding that the court’s power in these circumstances was “inherent in a court of equity, not a statutorily created right.” The Second District also found that the enumerated instances in Chapter 718 and Chapter 617 Florida Statutes do not “restrict a trial court’s broad, equitable authority to appoint a receiver; rather, the statutes merely cite specific instances when a receiver may be appointed.”
The Supreme Court of Florida, which took jurisdiction because of a conflicting ruling in a 2009 case in the Third District Court of Appeal, agreed with the Second District’s findings. The Supreme Court of Florida provides that the fact that the Florida Statutes lists certain grounds for the appointment of a receiver does not mean that appointment of a receiver is unavailable unless one of those grounds is applicable. The Supreme Court noted that the receivership remedy is available in equity—typically in cases of fraud, self-dealing, waste, or destruction or loss of property—even without statutory authority, and that the principles of equity would authorize the court to appoint a receiver under a broader range of circumstances other than those specified by Florida Statutes. The Supreme Court also provided that “nothing in the statutory language of these sections expressly prohibits or even implies that these enumerated circumstances are the only instances in which a court may appoint a receiver in cases involving a non-profit condominium association.”
Many associations rely on these cases to seek appointment of a court-appointed receiver in an effort to derive rental income over otherwise vacant and abandoned units where, but for the appointment of a receiver, the units would continue to be a drain on the association’s financial resources.