Gratigny Park Condominium No. 1, Inc. v. Reinier Vargas Perez and Alina Garcia Gonzalez · No. 3D26-1268 (Fla. 3d DCA) · Decided October 7, 2026
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The right of action that section 718.303(1), Florida Statutes, gives condominium unit owners does not excuse them from the presuit requirements for derivative suits when the claims they bring are derivative, the Third District Court of Appeal has held. Granting a condominium association’s petition for writ of certiorari, the court quashed a Miami-Dade circuit court order that had refused to dismiss two unit owners’ suit for failure to comply with section 617.07401.
What Happened
Reinier Vargas Perez and Alina Garcia Gonzalez own a unit in a 79-unit condominium managed by Gratigny Park Condominium No. 1, Inc., a non-profit corporation whose members are all the unit owners. Without complying with section 617.07401, they sued the association and its maintenance provider, Sun City Condo Solutions, Inc., for injunctive and declaratory relief. The claims against Sun City were dismissed below.
The complaint alleged breach of fiduciary duty, corporate mismanagement, and improper corporate expenditures in violation of the declaration, bylaws, and articles of incorporation, including that association funds were paid to both Sun City and the association’s president for the same services. The owners asked the court to compel the association to stop paying the president for “Janitorial Services,” terminate its management agreement with Sun City, establish the online records portal required by section 718.111(12)(g), and comply with its governing documents.
The association moved to dismiss, arguing the claims were derivative. The owners responded that their claims were not derivative and that section 718.303(1) gives unit owners a direct right of action. The trial court agreed with the owners, ruling that section 718.303(1) “creates a direct right of action for individual unit owners and does not condition that right upon compliance with the derivative pre-suit demand requirements of Section 617.07401.” It denied reconsideration, and the association petitioned for certiorari.
What the Court Held
On the threshold certiorari question, the court said that failure to enforce statutory presuit mandates satisfies the irreparable-harm requirement, because it deprives a party of its statutory right to presuit notice, demand, and investigation, “a right that cannot be meaningfully enforced or restored on plenary appeal.”
On the merits, section 617.07401 required a derivative complaint to be verified and to allege with particularity a demand on the board and that the demand was refused or ignored for at least 90 days, subject to stated exceptions. Under section 617.1703, Chapter 617 applies to corporations operating under Chapter 718 only to the extent it does not conflict with, or yield to a specific provision in, the applicable community-association statute. “Simply stated, if there is any conflict between the two chapters, Chapter 718 controls,” the court wrote. “Yet there is no conflict here.”
The court read the statutes in harmony: section 718.303(1) “establishes the substantive cause of action, while section 617.07401, Florida Statutes, supplies the procedural prerequisites for pursuing that claim derivatively.” A section 718.303(1) claim “may or may not be derivative depending on the nature of the right asserted and the injury alleged.” The court noted that the First and Fourth Districts have reached similar conclusions, citing Iezzi Fam. Ltd. P’ship v. Edgewater Beach Owners Ass’n, Inc., 254 So. 3d 584 (Fla. 1st DCA 2018), and Mineo v. Do, 435 So. 3d 1058 (Fla. 4th DCA 2026).
Applying Dinuro Invs., LLC v. Camacho, 141 So. 3d 731 (Fla. 3d DCA 2014), the court concluded this suit is derivative. The complaint and its wherefore clause showed the owners sought to enforce a right existing in the corporation, and “[t]he injury sustained by the unit owner is the very same injury sustained by other unit owners.” Calling the case a direct action did not change that. “It is the substance of the complaint that controls,” the court wrote. Because the owners did not comply with section 617.07401, the trial court departed from the essential requirements of the law. The petition was granted and the order quashed.
The court noted in a footnote that section 617.07401 has since been repealed, effective July 1, 2026, by Chapter 2026-168, Laws of Florida, and that the same bill enacted section 617.0742, which specifies certain requirements for a complaint brought in the right of a corporation. The opinion quotes the 2025 version of section 617.07401 and does not otherwise discuss the new section.
Why It Matters
Unit owners suing their association over alleged mismanagement cannot avoid derivative-suit prerequisites simply by invoking section 718.303(1) or labeling their claims direct. Under Gratigny Park, the substance of the complaint controls; where, as here, owners seek to enforce a right existing in the association and allege the same injury as the other unit owners, the claim is derivative. The court also treated a trial court’s failure to enforce the statutory presuit requirements as the kind of harm that supports certiorari review.
The Opinion
Download the full opinion (PDF)
| Court | Third District Court of Appeal |
| Case No. | 3D26-1268 |
| Lower Court | Circuit Court, Miami-Dade County (Judge William Thomas) |
| Opinion by | Judge Gooden (Judges Fernandez and Miller on the panel; no separate opinions) |
| Decided | October 7, 2026 |
| Result | Petition for writ of certiorari granted; order quashed |