Florida Condominium Special Assessments: When Can a Unit Owner Challenge an Assessment?

For Florida condominium owners, few notices get attention as quickly as a special assessment. Depending on the building and the work involved, an owner may suddenly be asked to pay thousands or even tens of thousands of dollars for structural repairs, concrete restoration, a new roof, elevators, plumbing, insurance expenses, or other major costs.

A special assessment can be financially painful, but that does not necessarily make it legally improper. Florida condominium associations have broad authority to assess owners for legitimate common expenses. That authority, however, is not unlimited.

An association must comply with the Florida Condominium Act, the condominium’s declaration and bylaws, applicable voting requirements, and statutory notice and procedural rules.

So when can a Florida condominium owner challenge a special assessment?

The most useful starting point comes from the Florida Supreme Court. A unit owner’s obligation to pay an assessment generally depends on whether the owner holds title to a condominium unit and whether the assessment conforms to the condominium documents authorized by Chapter 718.
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In practical terms, the key question usually is not whether the assessment is expensive, unexpected, or unpopular. It is whether the association had authority to impose the assessment and followed the legal requirements for doing so.

​What Is a Florida Condominium Special Assessment?

Florida’s Condominium Act defines a special assessment as an assessment levied against a unit owner other than the assessment required by an annually adopted budget.

Your regular monthly or quarterly condominium maintenance payment ordinarily results from the association’s annual budget. A special assessment is an additional assessment outside that regular budgeted assessment.

Special assessments commonly arise from expenses such as:

• Concrete restoration and structural repairs;
• Roof replacement;
• Plumbing, electrical, or mechanical work;
• Elevator repairs or replacement;
• Hurricane or casualty repairs;
• Insurance deductibles and other insurance expenses;
• Required building-safety work;
• Major repairs for which existing reserves are insufficient; and
• Certain structural reserve-funding obligations.

An assessment is not necessarily invalid simply because better financial planning might have prevented or reduced it.
​
That distinction is important.

Poor Financial Management Does Not Automatically Invalidate an Assessment

In Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So. 2d 4 (Fla. 1994), the Florida Supreme Court considered an assessment imposed to pay judgments and legal expenses resulting from litigation over an earlier board action that had itself been unauthorized.

The Court nevertheless upheld the assessment because the resulting litigation expenses were common expenses properly incurred by the association. It explained that the owners’ duty to pay assessments depended on ownership of a unit and whether the assessment conformed to the condominium documents authorized by Chapter 718.

The Third District reached a similar result in Coral Way Condominium Investments, Inc. v. 21/22 Condominium Association, Inc., 66 So. 3d 1038 (Fla. 3d DCA 2011). There, an owner challenged a $348,703.75 special assessment for flood-damage repairs, arguing that the association’s own breach of fiduciary duty had created the need for the assessment. The court held that the alleged misconduct did not provide a defense to payment of an otherwise valid assessment. The court also explained that insufficiency of funds is not a prerequisite to imposing a special assessment.

That does not mean a condominium board cannot be liable for breach of fiduciary duty, self-dealing, or other misconduct. Depending on the facts, those claims may exist separately.

But alleged mismanagement does not ordinarily give an owner the right simply to refuse to pay an otherwise lawful assessment.
​
The better question is: Was this particular assessment legally authorized and properly adopted?

1. Did the Association Give Proper Notice?

Notice is one of the first things an owner should examine.

For a nonemergency special assessment, Section 718.112, Florida Statutes, generally requires at least 14 days’ written notice of the board meeting at which the assessment will be considered. The notice must be provided to the owners and posted as required by statute.

The notice cannot merely announce that a board meeting will occur. It must state that assessments will be considered and identify the estimated cost and purpose of the proposed assessment.

Section 718.116 imposes another important requirement. The specific purpose or purposes of the special assessment must be stated in written notice to each unit owner, and money collected through the assessment may be used only for the stated purpose.

These are meaningful requirements.

In Star Lakes Estates Association, Inc. v. Auerbach, 656 So. 2d 271 (Fla. 3d DCA 1995), the Third District reversed a summary judgment of foreclosure because the association had not adequately established that the required written notice identifying the purpose of the assessment had been sent to the owners.

Similarly, in Carniello v. Second Horizons Condominium Association, Inc., 34 So. 3d 86 (Fla. 3d DCA 2010), the Third District reversed a foreclosure judgment where the association failed to establish compliance with statutory prerequisites relating to the special assessment and lien.

An owner questioning an assessment should therefore obtain and review:

• The notice of the board meeting;
• The special-assessment notice;
• The meeting agenda;
• Proof showing when and how notice was provided;
• The meeting minutes; and
• Any board resolution approving the assessment.

​A material defect in the required notice or approval process may provide grounds for challenging the assessment or its collection.

2. Did the Association Follow the Declaration and Bylaws?

Chapter 718 is only part of the analysis.

Every condominium has its own declaration, bylaws, articles of incorporation, and other governing documents. Those documents may contain requirements concerning assessments, voting, board authority, alterations, allocation of expenses, borrowing, or particular portions of the condominium property.

The governing documents cannot override mandatory provisions of the Condominium Act. In IconBrickell Condominium No. Three Association, Inc. v. New Media Consulting, LLC, 310 So. 3d 477 (Fla. 3d DCA 2020), the Third District reiterated that condominium declarations must conform to the Act and that statutory requirements control where a conflict exists.

At the same time, where Florida law permits the declaration to establish a procedure or allocation, the declaration matters.

An association also cannot necessarily avoid special-assessment requirements simply by calling an assessment something else. In Shores of Panama Resort Community Association, Inc. v. Shores of Panama, LLC, 204 So. 3d 547 (Fla. 1st DCA 2016), the association attempted to handle substantial nonrecurring legal and engineering expenses through an amended budget rather than the process applicable to special assessments. The court concluded that the expenses were special assessments for which the applicable procedure had to be followed.
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Before determining whether a special assessment is valid, the statute and the governing condominium documents should generally be examined together.

​3. Was a Unit Owner Vote Required?

One common misconception is that every large special assessment requires a vote of the owners.
Generally, it does not.

For many legitimate common expenses, including necessary maintenance, repair, and replacement, the board may have authority to impose a special assessment without obtaining a separate vote of the membership.

But there are important exceptions.

Material Alterations and Substantial Additions
Section 718.113 generally restricts a condominium association from materially altering or substantially adding to the common elements or association property except in the manner authorized by the declaration. If the declaration does not establish a procedure, the statute generally requires approval by 75 percent of the total voting interests before the work begins.

Florida courts have long distinguished maintenance and repair from a material alteration.

The traditional definition comes from Sterling Village Condominium, Inc. v. Breitenbach, 251 So. 2d 685 (Fla. 4th DCA 1971). A material alteration generally involves a change that palpably or perceptibly varies the form, shape, elements, or specifications of the property from its original design or existing condition, in a manner that appreciably affects or influences its function, use, or appearance.
 
For example, restoring deteriorated components may constitute maintenance or repair, while changing the design, function, use, or appearance of the property may present a material-alteration issue.

The amount spent is not necessarily determinative. A multimillion-dollar structural restoration may fall within the association’s maintenance responsibilities, while a comparatively inexpensive discretionary change might require owner approval.

There is also an important qualification.

In Bailey v. Shelborne Ocean Beach Hotel Condominium Association, Inc., 307 So. 3d 74 (Fla. 3d DCA 2020), the Third District held that necessary maintenance does not require unit-owner approval merely because the work also results in what might otherwise be considered a material alteration or substantial addition.

But Bailey also imposed an important limit. Where owner approval is required for a material alteration, that approval must be obtained before the work begins. Later ratification cannot substitute for the approval required before construction.

The distinction between necessary maintenance and a discretionary alteration is therefore often one of the central issues in a special-assessment dispute.

Removing an Existing Amenity Can Also Be a Material Alteration
A material alteration does not necessarily require adding something new.

In Lexington Place Condominium Association, Inc. v. Flint, 348 So. 3d 650 (Fla. 5th DCA 2022), the court held that eliminating existing common-element amenities, including recreational facilities, could itself constitute a material alteration requiring the applicable approval.

​Thus, the analysis may involve not only what the association proposes to add or change, but also what it proposes to remove.

4. Was the Assessment Allocated Correctly Among the Units?

​Even if an association has authority to incur an expense, there is a separate question: Who must pay it, and in what proportions?

Section 718.115 generally requires common expenses to be assessed against the units according to the proportions or percentages provided by the condominium declaration, subject to applicable statutory requirements.

The importance of proper allocation is not new. In Century 21 Commodore Plaza, Inc. v. Commodore Plaza at Century 21 Condominium Association, Inc., 340 So. 2d 945 (Fla. 3d DCA 1976), the Third District addressed an assessment that did not follow the owners’ percentage interests and concluded that the association’s allocation was beyond its authority.

The statutory framework has changed over time, however, and older condominiums can present different issues. In Island Manor Apartments of Marco Island, Inc. v. Division of Florida Land Sales, Condominiums and Mobile Homes, 515 So. 2d 1327 (Fla. 2d DCA 1987), the court declined to apply a later statutory allocation requirement retroactively to impair rights established under a declaration recorded before the statutory change.

The issue can become particularly complicated with:

• Limited common elements;
• Multiple buildings;
• Multicondominium structures;
• Commercial and residential components; or
• Declaration provisions assigning particular expenses to particular units.

An association cannot necessarily decide that one group should bear an expense simply because that group appears to receive the greatest practical benefit. Conversely, Florida law or the declaration may properly assign certain expenses only to particular units.

​If owners are being assessed differently, the declaration’s allocation provisions and the applicable version of the statute should be carefully reviewed.

5. Is the Association Using the Money for the Stated Purpose?

The association’s responsibilities do not end when the assessment is approved.

Section 718.116 provides that special-assessment funds may be used only for the specific purpose or purposes stated in the notice.

That restriction has been enforced by Florida courts.

In Stevens v. Cricket Club Condominium, Inc., 784 So. 2d 517 (Fla. 3d DCA 2001), the association collected money through a special assessment for work involving the pool area but used part of the money for work elsewhere. The Third District held that the board had breached its fiduciary duty by misapplying the assessment proceeds.

Owners investigating a special assessment may therefore want to compare the original assessment notice with later:

• Contracts;
• Invoices;
• Engineering or architectural reports;
• Association financial records; and
• Board minutes concerning the project.

​There are really two questions: Was the assessment properly imposed, and was the money later spent for the purpose for which it was collected?

6. What About Structural Repairs, Milestone Inspections, and SIRS?

Florida condominium law changed substantially after the 2021 collapse of Champlain Towers South in Surfside.

Florida now requires milestone inspections for many older condominium buildings and Structural Integrity Reserve Studies, commonly referred to as SIRS, for many residential condominium buildings three habitable stories or higher.

These requirements can substantially affect both the need for major repairs and the way associations fund them.

For associations existing on or before July 1, 2022, that are controlled by unit owners rather than the developer, the current statute generally required completion of the initial SIRS by December 31, 2025. An association required to complete a milestone inspection on or before December 31, 2026, may under specified circumstances coordinate the SIRS with that milestone inspection, but the statute provides an outside deadline of December 31, 2026.

Reserve funding rules have also changed.

For budgets adopted on or after December 31, 2024, unit-owner-controlled associations subject to SIRS generally may not vote to waive or reduce required reserves for the structural components covered by the statute.

Current law permits those reserve obligations to be funded through regular assessments, special assessments, lines of credit, or loans. When the association uses a special assessment, line of credit, or loan as the statutory method of funding those reserves, approval by a majority of the association’s total voting interests is required.

The Legislature has also provided some limited flexibility. For budgets adopted on or before December 31, 2028, an association that has completed a milestone inspection within the previous two calendar years may, with approval of a majority of the total voting interests, temporarily pause or reduce reserve contributions for up to two consecutive annual budgets for the purpose of funding repairs recommended by the milestone inspection. An updated SIRS is then required as provided by statute.

This is an area where terminology matters. A special assessment used to fund SIRS reserves is not necessarily governed by exactly the same voting rules as an assessment imposed to pay for actual necessary maintenance or repair work.

​Because Florida has repeatedly amended these laws since 2022, older articles and association guidance concerning reserve funding may no longer reflect current law.

​7. Can Owners Challenge an Assessment Because the Association Failed to Maintain Adequate Reserves?

Usually, inadequate reserves alone do not make the assessment invalid.

Suppose an association kept assessments low for years, deferred maintenance, and now imposes a $30,000 special assessment because the roof, concrete, plumbing, or another major component requires substantial work.

Owners may reasonably believe better planning could have prevented the financial shock.

But the reason the association needs the money and whether it presently has legal authority to collect the money are different questions.

As Ocean Trail and Coral Way illustrate, alleged past misconduct or poor financial management does not ordinarily provide a defense to payment of an otherwise lawful assessment.
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Separate claims may exist depending on the conduct involved. But those claims should not be confused with a challenge to the validity of the assessment itself.

8. What About Emergency Special Assessments?

Florida condominium law contains more than one type of emergency authority.

Under Section 718.112, a board may address an item that was not included on a meeting notice when a genuine emergency requires immediate action. That procedure has its own voting and subsequent notice and ratification requirements.

Florida administrative decisions have treated an emergency as something more than ordinary financial inconvenience. The circumstances generally must involve a serious and urgent condition requiring immediate action.

Separate and broader emergency powers arise under Section 718.1265 when the statutory conditions involving a declared state of emergency are satisfied. In qualifying circumstances, those powers can include authority to impose special assessments and borrow money without the unit-owner approval that might otherwise be required.

Those powers are not unlimited. They exist to address circumstances connected with the emergency and are available only for the period reasonably necessary to protect health, safety, and welfare and mitigate further damage.
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Calling a planned or nonurgent project an “emergency” does not by itself eliminate ordinary statutory requirements.

9. How Much Deference Will a Court Give the Board?

Florida courts generally do not substitute their judgment for that of a condominium board on ordinary management decisions.

The business judgment rule provides substantial protection when the board acts within the scope of its authority and acts reasonably rather than arbitrarily, capriciously, or in bad faith.

In Hollywood Towers Condominium Association, Inc. v. Hampton, 40 So. 3d 784 (Fla. 4th DCA 2010), the court explained the inquiry in terms of authority and reasonableness.

The Third District likewise recognized in New Horizons Condominium Master Association, Inc. v. Harding, 336 So. 3d 796 (Fla. 3d DCA 2022), that the business judgment rule operates presumptively and does not have to be separately pleaded as an affirmative defense before it can apply.

But judicial deference has limits.

The business judgment rule does not authorize a board to disregard Chapter 718, ignore restrictions in the governing documents, dispense with a required owner vote, or use assessment funds for an unauthorized purpose.

There is therefore an important difference between:
“I disagree with what the board decided to spend.”
and
“The board lacked authority to impose this assessment or failed to comply with a legal requirement.”

​The first generally implicates the board’s business judgment. The second may present a legal basis for challenging the assessment.

​10. How Long Does an Owner Have to Challenge an Assessment?

There is no single limitations period that applies to every condominium special-assessment dispute.

The applicable deadline can depend on the nature of the claim.

For example, Section 95.11 has historically provided a five-year limitations period for certain claims founded on a written instrument and a four-year period for certain statutory claims. But identifying the applicable period is only part of the analysis. Determining when that period begins to run can be equally important.

In Margate Village Condominium Association, Inc. v. Wilfred, Inc., 350 So. 2d 16 (Fla. 4th DCA 1977), the court stated that the time to challenge the legality of condominium assessments is when the assessments are sought to be enforced.

A different accrual issue arises when a party seeks to invalidate the condominium declaration itself rather than challenge a particular assessment. In Gallery One Condominium Association, Inc. v. Terrace Gallery, LLC, 415 So. 3d 1076 (Fla. 4th DCA 2025), the Fourth District held that claims seeking to invalidate and reform provisions of a condominium declaration accrued from the recording of the declaration and were subject to applicable limitations and repose provisions.

The lesson for a unit owner is straightforward: do not assume that every assessment challenge has the same deadline, and do not assume that a challenge can be postponed indefinitely.

Does Attending the Meeting Waive a Challenge?
Not necessarily.

In Kosmas v. Marina Bay Dockowner’s Association, Inc., 726 So. 2d 857 (Fla. 5th DCA 1999), the court rejected the contention that participation in a meeting necessarily waived a later challenge based on improper notice.

Whether an owner attended, objected, voted, or remained silent can be relevant to particular issues, but it does not automatically cure an association’s failure to comply with statutory requirements.

Can the Association Fix a Defect Later?
Sometimes.

Certain procedural defects may be capable of being cured through proper subsequent action.

​Other requirements expressly demand action at a particular time. Bailey, for example, makes clear that where Section 718.113 requires unit-owner approval before a material alteration begins, an after-the-fact vote cannot substitute for the required preconstruction approval.

​11. Should You Pay a Special Assessment You Intend to Challenge?

This is one of the most important practical questions.

Simply refusing to pay can create substantial additional exposure.

Under Section 718.116, an unpaid assessment accrues interest at the rate stated in the declaration, subject to applicable law. If the declaration does not state a rate, the statutory rate is 18 percent per year.

If authorized by the declaration or bylaws, the association may also impose an administrative late fee of up to the greater of $25 or 5 percent of each delinquent installment.

Collection costs can increase further if the association retains counsel or records a lien. Florida law also permits suspension of certain association rights for qualifying delinquencies. For example, voting rights may be suspended when an owner's monetary obligation exceeds $1,000 and is more than 90 days delinquent, subject to the statutory notice requirements.

Unpaid assessments may ultimately result in a claim of lien and foreclosure. Florida law also requires written notice before foreclosure, and no foreclosure judgment may be entered until at least 45 days after the required notice is given.

For these reasons, an owner who has a genuine concern about the validity of a special assessment should generally make each payment when due under written protest while promptly investigating or pursuing the challenge, unless the owner’s attorney recommends a different strategy.

Doing so can serve two important purposes.

First, timely payment avoids the interest, late fees, collection expenses, lien rights, and potential foreclosure consequences that can result from nonpayment while the dispute is being resolved.

Second, a contemporaneous written protest makes clear that the owner is not paying because he or she agrees that the assessment is valid or intends to abandon an objection. It creates a record that the payment is being made despite the owner's challenge and without intending to waive the right to seek relief or reimbursement.

Florida decisions support this approach. In Gascoyne v. Bay Towne Property Owners Association, Inc., 575 So. 2d 671 (Fla. 2d DCA 1991), the Second District held that a tender was not rendered conditional merely because it was made under protest and accompanied by a letter explaining the owner's objections.

Payment also does not necessarily end the underlying dispute. In Smulders for 129-31 Harrison Street, LLC v. Thirty-Three Sixty Condominium Association, Inc., 245 So. 3d 802 (Fla. 4th DCA 2018), the owners' challenge was not rendered moot even though the assessment had been paid and the project completed. A potential reimbursement claim remained if the owners ultimately established a violation.

The importance of making the protest clear is illustrated by Andrews v. Palmas De Majorca Condominium, 898 So. 2d 1066 (Fla. 5th DCA 2005). There, the trial court treated an installment payment made without an “Under Protest” notation as acquiescence to the special assessment. Although the appellate decision ultimately turned on other circumstances, the case illustrates the practical risk of making a disputed payment without clearly documenting that the owner does not intend to accept the assessment or waive a challenge.

A written protest can therefore be a relatively simple precaution. Ideally, the owner should contemporaneously advise the association in writing that the particular payment is being made under protest and without waiver of the owner's objections, claims, defenses, or right to seek reimbursement.

​Payment under protest does not substitute for taking timely legal action, and unusual circumstances may warrant seeking immediate injunctive relief or following a different strategy. But an owner should generally obtain legal advice before allowing a disputed assessment to become delinquent.

How Can a Florida Condominium Owner Challenge a Special Assessment?

Depending on the circumstances, an owner may seek declaratory or injunctive relief, assert claims based on violations of Chapter 718 or the condominium documents, or raise defenses if the association begins lien or foreclosure proceedings.

Section 718.303 authorizes actions at law or in equity for certain failures to comply with Chapter 718, the declaration, the documents creating the association, or the bylaws. The statute also contains a prevailing-party attorney's fee provision applicable to qualifying actions. In Mitchell v. Beach Club of Hallandale Condominium Association, Inc., 17 So. 3d 1265 (Fla. 4th DCA 2009), the Fourth District recognized injunctive relief in a challenge alleging that a condominium association failed to comply with statutory and governing-document requirements in imposing a special assessment.

There is also an important procedural distinction for assessment disputes. Section 718.1255 excludes disagreements that primarily involve the levy of a fee or assessment, or collection of an assessment, from the category of condominium "disputes" subject to the statute's mandatory nonbinding arbitration procedure.

The Third District recognized that distinction in Villorin v. Village of Kings Creek Condominium Association, Inc., 789 So. 2d 1157 (Fla. 3d DCA 2001), and Mitchell likewise addressed it.

That does not mean every claim connected in some way with an assessment automatically bypasses every presuit procedure. The actual nature of the dispute and the relief sought still matter.

An owner facing collection should also carefully review what the association has actually liened and pleaded.

In Orfanos v. 45 Ocean Condominium Association, Inc., 368 So. 3d 995 (Fla. 4th DCA 2023), the Fourth District held that additional special assessments that were not included in the claim of lien or foreclosure complaint could not simply be added to the foreclosure judgment.
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If an association has already recorded a lien or begun foreclosure proceedings, early review is therefore particularly important.

​What Documents Should an Owner Review?

If you receive a significant condominium special assessment and question its validity, gathering the governing documents and records is usually the best first step.

Consider obtaining:

• The declaration of condominium and all amendments;
• The bylaws and articles of incorporation;
• The notice of the meeting at which the assessment was considered;
• The special-assessment notice;
• The meeting agenda and minutes;
• The board resolution approving the assessment;
• Any unit-owner vote, ballots, or proxies concerning the project;
• The association’s current budget and relevant reserve schedules;
• The most recent Structural Integrity Reserve Study, if applicable;
• Any milestone-inspection report;
• Engineering or architectural reports concerning the proposed work;
• Contracts and proposals;
• Documents showing how the assessment was allocated among units; and
• Records showing how the assessment proceeds have been spent.

​Those documents often reveal whether the disagreement concerns the wisdom of the board’s decision, where courts generally afford the board substantial discretion, or whether it concerns the board’s legal authority and compliance with required procedures.

​The Bottom Line

Florida condominium boards have broad authority to impose special assessments for legitimate common expenses.

A special assessment is not invalid merely because it is large, unexpected, financially difficult, or unpopular.

But the board’s authority has limits.

A special assessment may warrant closer examination when the association:

• Failed to provide legally required notice;
• Violated the declaration or bylaws;
• Failed to obtain a required owner vote;
• Improperly allocated the assessment among the units;
• Used assessment proceeds for a purpose different from the one stated;
• Assessed an expense outside the association’s authority; or
• Acted arbitrarily, fraudulently, in bad faith, or through improper self-dealing.

Florida’s newer milestone-inspection and structural-reserve laws make the analysis particularly important for owners in older condominium buildings.

The key is to distinguish two different questions:
Was the board’s decision a good one?
and
Was the special assessment legally authorized and properly adopted?

​The first often involves the board’s business judgment. The second may provide grounds for a legal challenge.

​Questions About a Florida Condominium Special Assessment?

Steinberg & Associates, P.A., located in Miami Beach, represents condominium unit owners and others in condominium disputes in Miami Beach, Miami-Dade County, Broward County, and throughout South Florida.

Our Condominium Disputes practice includes matters involving special assessments, governing documents, association authority, maintenance and repairs, common elements, property damage, records requests, and related litigation.

If you have received a significant condominium special assessment or are involved in a dispute with a condominium association, contact our office to discuss your situation.

CALL (305) 538-2344

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Legal Disclaimer: This article has been prepared by Steinberg & Associates, P.A. for general informational purposes only and does not constitute legal advice. The information contained herein is based on Florida law as of the date of publication and is subject to change. Every condominium and every dispute depends on its particular governing documents, facts, and circumstances, and nothing in this article should be relied upon as a substitute for advice from a qualified Florida attorney regarding a specific situation. Reading this article does not create an attorney-client relationship between you and Steinberg & Associates, P.A. or any of its attorneys. For advice specific to your circumstances, please consult a licensed Florida attorney. This article was prepared by Richard L. Steinberg, Esq. of Steinberg & Associates, P.A., with the assistance of artificial intelligence drafting tools and reflects legal research conducted as of the date of publication.

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