Grove Isle Association, Inc., (the “Condominium Association”) appeals an order dismissing, with prejudice, its claims for injunctive and declaratory relief, unjust enrichment, and breach of contract based on the expiration of the applicable statute of limitations and the doctrine of laches. For the reasons set forth below, we reverse.
I. FACTUAL AND PROCEDURAL HISTORY
Fair Isle, a private island in Coconut Grove, Florida, is developed with three residential condominium towers, collectively known as “Grove Isle,” and a hotel, club, marina, and spa. The towers were submitted to condominium ownership pursuant to a Declaration of Condominium recorded January 23, 1979 (the “Declaration”). The unit owners of each of the residential condominium towers are members of Grove Isle Association, Inc., an entity organized pursuant to Chapter 718, Florida Statutes.
Grove Isle unit owners and visitors access Fair Isle by way of a private bridge over Biscayne Bay. A roadway on Fair Isle permits traffic between the residential condominium towers and the hotel, club, marina, and spa. The private bridge and roadway are owned and/or controlled by Grove Isle Associates, LLLP (the “Hotel and Club Owner”), Grove Isle Yacht Club Associates (the “Marina Owner”), and CII Spa, LLC, the owner of a fifty percent interest in Grove Spa, LLC (the “Spa Owner”). The Declaration imposes the obligation to maintain and repair the private bridge and roadway upon the Condominium Association.
From 1996 through late 2008, the hotel and club were operated by Westgroup Grove Isle Associates, Ltd. (the “Former Hotel and Club Manager”). The marina and spa were managed by other entities during this time. In November 2008, Grove Hotel Partners, LLC (the “Resort Lessee”) leased the hotel, club, and spa property and assumed responsibility for the management and operation of these facilities (the “Resort”). The Resort Lessee manages and operates the Resort through Grand Heritage Hotel Group, LLC and its affiliate, GH-Grove Isle Management, LLC (collectively, the “Current Resort Managers”).
On July 10, 2009, the Condominium Association filed its Complaint against the Hotel and Club Owner, the Marina Owner, the Spa Owner, the Former Hotel and Club Manager, the Resort Lessee, and the Current Resort Managers.
In Count I, the Condominium Association sought injunctive relief against the Hotel and Club Owner, the Spa Owner, the Resort Lessee, and the Current Resort Managers (collectively, the “Count I Defendants”). The Condominium Association alleged that, pursuant to a final judgment entered July 29, 1977 (“Final Judgment”),
In Count II, the Condominium Association sought declaratory relief in the form of an order declaring Sections 3.2, 5.1,
Section 3.2 of the Declaration recognizes that the private bridge, internal roadways, and amenities, among other things, “are utilized to provide services and other benefits to apartment unit owners and the Association.”
Therefore, apartments and the owners thereof within the condominium operated and managed by the Association shall be charged with the cost and expense of maintaining, managing and operating the various properties, facilities and services hereinabove described notwithstanding the fact that such properties, facilities and services are located or rendered outside the con-dominium_ The maintenance, management and operation of the described properties, facilities and services shall be the responsibility of the Developer or its successors or assigns. All costs and expenses incident to providing the maintenance, management and operation of the properties, facilities and services herein described shall be within the sole discretion of the Developer or its successors or assigns and shall be assumed and paid bg each apartment owner as a common expense.... Other owners of real property located on Fair Isle, their successors, assignees and lessees, including the Grove Isle Club, are not subject to contribute to the costs and expenses of maintaining, managing or operating the various properties, facilities and services ....
(Declaration § 3.2 (emphasis supplied).) The Condominium Association claims that Section 3.2 is unfair and unreasonable because it requires the unit owners to bear all the costs of maintenance, management, and operation of Fair Isle’s facilities and amenities, even though the facilities and amenities are also used by other Fair Isle property owners and persons other than members of the Condominium Association.
Section 5.1(d) of the Declaration reserves “a perpetual non-exclusive easement over, through, across and upon all walkways, driveways, ramps, parking spaces and other parking facilities” in favor of the developer and its successors and assigns. The provision also requires the developer (and its successors and assigns) to grant “perpetual non-exclusive rights to the use of the easement ... to owners and lessees of Fair Isle.” The Condominium Association claims that this provision is unfair and unreasonable because it requires the unit owners to bear all the costs of maintaining, managing, and operating these areas of Fair Isle, when the areas must be shared with other Fair Isle property owners.
Sections 15.4(c) and (d) limit the Condominium Association’s ability to amend the Declaration. Section 15.4(c) prohibits any amendment that would “[o]perate to alter, amend, modify or effect the rights and privileges granted to or reserved by the Developer without the written consent of the Developer.” Section 15.4(d) contains an identical provision running in favor of “Grove Isle Club.” The Condominium Association claims that these provisions “effectively preclude the Association from amending the Declaration to remove the onerous grants and reservations in favor of the Developer, its successors and assigns and the Grove Isle Club.”
In Count III, the Condominium Association asserted an action for unjust enrichment against the Hotel and Club Owner, the Marina Owner, and the Spa Owner, and sought to recover the value of its maintenance, management, and operation payments pursuant to Section 3.2 of the Declaration.
In Count IY, the Condominium Association sought declaratory relief related to
The Condominium Association also challenges Section 12.9(f) of the Declaration, which provides:
The total financial obligation for membership in the Grove Isle Club shall be the initial membership fee. The unit owners and the Association shall not be responsible for providing any costs and expenses for the maintenance, management and operation of the club facilities nor will such costs and expenses become an obligation of the unit owners or the Association unless provided for by an amendment to this Declaration adopted as required by Section 15 of this Declaration.
The Condominium Association contends that Section 12.9(f) prohibits the club from imposing and collecting annual assessments or dues from the unit owners, because the Declaration does not contemplate any additional membership fees other than the initial membership fee. The Condominium Association alleges that, notwithstanding Section 12.9(f), the club requires unit owners to pay annual assessments. These assessments are periodically increased. The Complaint alleges that the assessments are a product of the club’s “unique bargaining power,” i.e., the unit owners must agree to pay the assessments or risk expulsion from the club, which is a condition of ownership under Section 12.9 of the Declaration. With respect to Section 12.9(f), the Condominium Association seeks an order limiting the unit owners’ “total financial obligation” to an “initial membership fee” and declaring that the club is not authorized to assess annual membership fees or dues.
In Count V, the Condominium Association sued the Hotel and Club Owner for breach of contract, alleging an ongoing violation of Section 12.9(f) of the Declaration (which limits the “total financial obligation” of unit owners, with respect to club membership, to an “initial membership fee”). The Condominium Association seeks to recover annual club membership fees and dues paid by unit owners in excess of the initial membership fee.
In Count VI, the Condominium Association asserted an action for unjust enrichment against the Former Hotel and Club Manager, the Resort Lessee, and the Current Resort Managers. The Condominium Association seeks to recover the value of annual club membership fees and dues paid by the unit owners in excess of the “initial membership fee” provided for in Section 12.9(f) of the Declaration.
In Count VII, the Condominium Association sought injunctive relief against the Resort Lessee and the Current Resort Managers in the form of an order prohibiting the Count VII Defendants from generating excessive noise. Count VII remains pending in the trial court.
Following a hearing on motions to dismiss filed by the Defendants, the trial court dismissed the Condominium Association’s Complaint with prejudice, concluding
II. STANDARD OF REVIEW
A. Dismissal
A trial court’s order granting a motion to dismiss is reviewed de novo. Fla. Bar v. Greene,
A motion to dismiss tests the legal sufficiency of the complaint. Greene,
Affirmative defenses, such as statute of limitations and laches, are generally matters raised in an answer and not a motion to dismiss. Rigby v. Liles,
B. Leave to Amend
A trial court’s order denying leave to amend a pleading is reviewed for abuse of discretion. Rodriguez v. Recovery Performance & Marine, LLC,
“A trial court should give leave to amend a deficient complaint unless ... the complaint shows on its face that there is a deficiency which cannot be cured by amendment.” Unitech Corp. v. Atl. Nat’l Bank of Miami,
III. DECLARATION OF CONDOMINIUM
A “declaration” or “declaration of condominium” is the instrument or instruments by which a condominium is created. § 718.103(15), Fla. Stat. (2012). “The declaration, which some courts have referred to as the condominium’s ‘constitution,’ strictly governs the relationships among the condominium unit owners and the condominium association.” Woodside Vill. Condo. Ass’n v. Jahren,
The powers of a condominium association do not appear to include the power to unilaterally void all or any portion of a declaration of condominium.
New unit owners purchase their units subject to the provisions of the declaration. Restrictions which may be found in a declaration of condominium are clothed with a very strong presumption of validity when challenged.
With respect to the effect of subsequent amendments, the Court in Woodside cited approvingly to this Court’s holding in Flagler Federal Savings & Loan Ass’n of Miami v. Crestview Towers Condominium Ass’n,
Furthermore, “although case law has applied the word ‘reasonable’ to determine whether [restrictions in a declaration of condominium] are valid, this is not the appropriate test _ Indeed, a use restriction in a declaration of condominium may have a certain degree of unreasonableness to it, and yet withstand attack in the courts. If it were otherwise, a unit owner could not rely on the restrictions found in the declaration of condominium, since such restrictions would be in a potential condition of continuous flux.” Hidden Harbour Estates, Inc.,
Because a condominium association may not unilaterally void all or any portion of a condominium’s declaration, in order to successfully challenge the provisions of the declaration in a court of law, the association must show that the declaration’s provisions are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right. See Hidden Harbour Estates, Inc.,
IV. ANALYSIS
A. Dismissal Based on Statute of Limitations
The limitations periods applicable here are set forth in section 95.11, Florida Statutes, and discussed below. In Florida, the statute of limitations runs from the time the plaintiffs cause of action accrues. § 95.031, Fla. Stat. (2011). “A cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2011).
1. Claim for Injunctive Relief (Count I)
In Count I, the Condominium Association sought an injunction prohibiting unauthorized members of the public from using the club’s amenities.
The limitations period for “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument” is five years. § 95.11(2)(b), Fla. Stat. (2011); see also Pond Apple Place III Condo. Ass’n v. Russo,
The trial court concluded that “the violations of the settlement agreement in Count I necessarily have been occurring for approximately thirty years, since members began paying their membership dues in 1979.” (Order at 2.) However, the four corners of the complaint do not allege that the payment of membership dues by unit owners is related to use of the Club’s amenities by certain unauthorized members of the public, purportedly in violation of the Final Judgment. It is this injury — use by the unauthorized public — that constitutes the injury alleged by the Association in Count I of its Complaint. The Association’s injunction claim cannot have accrued earlier than the time this injury occurred. It cannot affirmatively be determined from the face of the Complaint when allegedly unauthorized members of the public began using the Club’s amenities. If the members of the public about which the Association complains began using the Club’s amenities within the five-year limitations period, i.e., on or after July 2004, the Association’s claim would not be barred by the statute of limitations. If, however, the unauthorized use began beyond the five-year limitations period, Count I would be barred. Consequently, the trial court’s dismissal of Count I without leave to amend was erroneous.
In Count II, the Condominium Association sought a declaratory judgment announcing that Sections 3.2 (requiring unit owners to pay costs and expenses related to maintenance, management, and operation of properties, facilities and services outside the condominium property), 5.1(d) (reserving to the developer and its successors and assigns an easement over walkways, driveways, and parking spaces and facilities), and 15.4(c) and (d) (requiring developer’s written consent to amend Declaration in certain situations) of the Declaration are void and unenforceable pursuant to sections 718.122 (establishing presumption of unconscionability of lease for use of recreational or other common facilities by condominium unit owners when nine enumerated factors are present) and 718.302, Florida Statutes (“Any grant or reservation made by a declaration ... shall be fair and reasonable.”). In Count IV, the Condominium Association sought a declaratory judgment announcing that portions of Section 12.9 of the Declaration (governing club membership and fees) are void and unenforceable.
The limitations period for “a legal or equitable action on a contract, obligation, or liability founded on a written instrument” is five years. § 95.11(2)(b), Fla. Stat. (2011). Thus, the Condominium Association may not assert any claims for declaratory relief that accrued before July 2004. Pursuant to section 95.031(1), Florida Statutes, the Condominium Association’s claims for declaratory relief accrued when the last element constituting the cause of action occurred. The elements of an action seeking a declaratory judgment require the plaintiff to show there is “[1] a bona fide adverse interest between the parties concerning a power, privilege, immunity or right of the plaintiff; [2] the plaintiffs doubt about the existence or non-existence of his rights or privileges; [3] that he is entitled to have the doubt removed.” State Dep’t of Envtl. Prot. v. Garcia,
The trial court concluded that the Condominium Association’s claims for declaratory relief accrued “at the time the plaintiffs became bound under the contract—(1979)—or at the latest decades ago when the developer turned over control of the condo to the association.” (Order at 2.) The trial court, however, did not confine itself to the four corners of the Complaint when it determined that the developer turned over control of the condominium “decades ago.” (Order at 2.) The Condominium Association’s Complaint does not identify the date on which turnover occurred, nor can any timeframe be inferred from the allegations in the Complaint or the documents attached thereto. Thus, while we recognize that section 718.124, Fla. Stat. (2011) (tolling a condominium association’s claims in law or equity prior to turnover) may operate to bar Counts II and IV if all the elements of the Condominium Association’s claims for declaratory relief were present at turnover, the trial court could not reach this conclusion on the face of the Complaint as pled by the Condominium Association. Consequently, dismissal on this basis was erroneous. See Minor v. Brunetti,
Count II is premised solely on the allegedly unfair language of certain sections of the Declaration. Count TV, however, is premised on the payment of annual
3. Claims for Unjust Enrichment (Counts III and VI)
In Count III, the Condominium Association demanded the value of its maintenance, management, and operation payments made pursuant to Section 3.2 of the Declaration. In Count VI, the Condominium Association demanded the value of its annual membership fees and dues allegedly paid in violation of Section 12.9(f) of the Declaration.
The limitations period for an unjust enrichment action is four years. Swafford v. Schweitzer,
The trial court concluded that the Condominium Association’s unjust enrichment claims accrued “in or about 1979 when the association’s members first began paying monthly dues.” (Order at 2.) The Condominium Association’s Complaint, however, does not allege the date that the payments began. Consequently, the trial court erred when it dismissed Counts III and VI with prejudice.
4. Claim for Breach of Contract (Count V)
In Count V, the Condominium Association sought to recover annual club membership fees and dues allegedly paid in violation of Section 12.9(f) of the Declaration (limiting club assessments to an “initial membership fee”).
The limitations period for “a legal or equitable action on a contract, obligation, or liability founded on a written instrument” is five years. § 95.11(2)(b), Fla. Stat. Thus, the Condominium Association may not assert any claims for breach of contract that accrued before July 2004. “The elements of a breach of contract action are: (1) a valid contract; (2) a materi
The trial court concluded that the Condominium Association’s breach of contract claim accrued “in or about 1979 when the association’s members first began paying monthly dues.” (Order at 2.) “Florida case law consistently holds that a cause of action for breach of contract accrues and the limitations period commences at the time of the breach.” Clark v. Estate of Elrod,
B. Leave to Amend
Lastly, we address the trial court’s denial of the Association’s motion for leave to amend its Complaint. We find that the trial court did not have discretion to deny the Association leave to amend. See Fowler v. Paradise Lakes Condo. Ass’n,
V. CONCLUSION
For the reasons stated above, we reverse the trial court’s order dismissing the Association’s claims for injunctive and declaratory relief, unjust enrichment, and
Reversed and remanded for further proceedings consistent with this opinion.
Notes
. Because we conclude the trial court’s dismissal of the Condominium Association’s Complaint based on the statute of limitations was reversible error at this stage in the pleadings, we do not address the trial court’s dismissal based on the doctrine of laches. Moreover, nothing in this opinion should be construed to foreclose the Appellees/Defen-dants from asserting any legal or equitable defenses against the Condominium Association’s claims if any of those claims accrued within the limitations period.
. For ease of reference, the following table identifies the named defendants and their roles.
[[Image here]]
. Count VII remains pending in the trial court. Because Counts I-VI are not legally or factually related to Count VII, the Court may review the trial court's order dismissing Counts I through VI. See Harrison v. J.P.A. Enters., LLC,
. The Final Judgment incorporated and ratified a settlement agreement in which the owners of Fair Isle agreed to certain restrictive covenants pertaining to the development of Fair Isle (the "Settlement Agreement”). A copy of the Final Judgment was attached to the Complaint.
. The Condominium Association's Complaint and briefs refer to Section 3.5, which does not exist in the Declaration. At oral argument, counsel for the Condominium Association confirmed that references to Section 3.5 in the Complaint and briefs filed in this Court should be references to Section 5.1 of the Declaration.
. A copy of the Declaration was attached to the Complaint.
. Fair Isle was developed by Sun Bank of Miami. The Hotel and Club Owner, the Marina Owner, and Cl I Spa, LLC, the owner of a fifty percent interest in the Spa Owner, are subsidiaries of Sun Bank’s successor in interest.
. By law, a condominium association has the power to make and collect assessments; lease, maintain, repair and replace the common elementó or association property; acquire title to property or otherwise hold, convey, lease, and mortgage association property for the use and benefit of its members in the manner specified in the declaration or, if the declaration is silent, with the approval of seventy-five percent of the total voting interests; subject to a provision regarding the bylaws, to convey through its board of administration a portion of the common elements to a condemning authority for the purposes of providing utility easements, right-of-way expansion, or other public purposes, whether negotiated or as a result of eminent domain proceedings; purchase any land or recreation lease upon the approval of the voting interests as required by the condominium declaration, or, if the declaration is silent, as required to amend the declaration to permit the acquisition; purchase units in the condominium and to and hold, lease, mortgage, or convey the units, unless prohibited by the declaration, articles of incorporation, or bylaws of the association; unless prohibited by the declaration, to grant, modify, or move any easement that is part of, or crosses, the common elements or association property, without the joinder of any unit owner. § 718.111(4), (7), (9), (10) (2012); see abo 10 Fla. Jur. 2d Condominiums & Coop. Apts. § 122 (2012).
. "There are essentially two categories of cases in which a condominium association attempts to enforce rules of restrictive uses. The first category is that dealing with the validity of restrictions found in the declaration of condominium itself. The second category of cases involves the validity of rules promulgated by the association’s board of directors or the refusal of the board of directors to allow a particular use when the board is invested with the power to grant or deny a particular use.” Woodside Vill. Condo. Ass’n,
. The Condominium Association’s Complaint was filed on July 10, 2009.
. We further note that any potential unjust enrichment claim as to Westgroup is limited as the complaint alleges that Westgroup was replaced by Grove Hotel Partners, LLC, in November of 2008 as the lessee of the Hotel, Club and Spa.