STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION CAPTAIN S WAY AT ADMIRAL S COVE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No GUNTER B. HAFER, Respondent. / SUMMARY FINAL ORDER The petition for arbitration and answer filed by the parties allow a determination of the dispute pursuant to Rule 61B , Florida Administrative Code. The rule permits the arbitrator to summarily enter a final order if no disputed issues of material fact exist. The petition filed by the association/petitioner alleges that the respondent/unit owner altered the limited common element screened patio appurtenant to his condominium unit by enclosing it with glass slider walls to increase the interior space of the unit. The petition further asserts that the alteration was not authorized or approved by either the Architectural Review Board of the Admiral s Cove Master Property Owners Association, Inc., or the Captain s Way at Admiral s Cove Condominium Association, Inc. The association seeks as relief an order requiring the respondent/unit owner to permanently remove the glass slider walls he installed enclosing his screened patio area, and further requiring the respondent to restore the property to its condition prior to the alteration. The answer filed in this matter does not dispute the facts set forth in the petition. 1

2 The association asserts Article IV.B. of the declaration of condominium as authority in support of its request for relief. That article defines the screened patio area as a limited common element. The association further asserts Article IV.B.2. of the declaration, which provides that there will be no change to limited common elements without prior written approval of the board of directors of the association. The petition cites Article IV.B.4. of the declaration, which specifically provides that the board shall not have the authority to approve any change to limited common elements which expands the interior space of any unit, whether or not such expansion is proposed to be made by constructing an addition to the unit or by permanently enclosing an area that has theretofore been screened. The petition further asserts the provision of Article IV.B. that, in additional to the approval of the board of the association (and in this case nonapproval is mandatory), any request for change to limited common elements is also subject to review of the Architectural and Design Review Committee. The petition further points out that Article XVI.B. of the declaration provides that the association shall not consent to any requested alteration of a unit which would expand the interior space of the unit, whether such alteration is by constructing an addition or permanently enclosing an area that is screened. Interior space is defined as any space enclosed by walls and a roof. Based upon the foregoing facts and authority, the arbitrator finds that the association has presented a prima facie case entitling it to the relief requested, i.e., that the respondent be required to remove the alteration and to restore the premises to their original state. The respondent s answer begins by stating We agree we are out of compliance. The respondent goes on to recount the history of this matter and to raise several defenses. It is undisputed that respondent s unit has, adjacent to the air-conditioned portion of 2

3 the unit, a screened patio area, which is defined in the declaration as a limited common element. A sliding glass door separates the interior, air-conditioned unit from the patio. At some unspecified time, but prior to December 23, 1997, the respondent removed the sliding glass door and enclosed the patio with glass sliders, increasing the air-conditioned area of his unit by 350 square feet. On December 23, 1997, the association s property manager wrote to the respondent, stating that these alterations have been done without the approval of the Architectural Design Review Board of the Admiral s Cove Master Property Owners Association, Inc. and the Captain s Way at Admiral s Cove Condominium Association, Inc. The letter, which appears in the record, went on to state that the alterations were in direct violation of condominium documents and demanded that the respondent restore the property to its original condition within 30 days. The letter went on to state that if the alterations were not removed, the association would be left with no alternative but to take advantage of all remedies available under Florida law and equity in this matter. Both parties have stipulated that during this same period of time, consideration was being given by the condominium association to seeking to obtain approval of the unit owners for an amendment to the declaration of condominium which would allow certain approved enclosures of the limited common element patio areas. Accordingly, the association and respondent agreed to a temporary stay of the directive in the December 23, 1997, letter that the alterations be removed within 30 days. The proposed amendment to the declaration did not pass, however. On November 8, 1999, the respondent was advised by letter from petitioner s counsel that the required 100% approval of all the unit owners was not obtained. Therefore, the November 8 letter, which also appears in the record, demanded that the respondent remove the unauthorized alterations. 3

4 In his answer to the petition for arbitration, the respondent asserts that the association should not have presented the matter to arbitration, asserting that this was completely against all indicators I had received from the board and went com pletely against my position of complying with the regulations. He implies that he believed he should have been given additional time to seek the final vote. The record reflects, however, that the association s counsel sent another letter to the respondent on December 10, 1999, stating that the approval of the proposed amendment had not been obtained. The letter went on to state that, absent immediate removal of the unauthorized enclosure of the lim ited common element patio area, the board will have no option but to institute enforcement proceedings directed to your compliance. As respondent states in his answer, he was aware that the association had already instituted another arbitration proceeding against another unit owner in the condominium due to an enclosure of the porch adjacent to that owner s unit. It is further noted that, although the respondent in the present case insists that he has cooperated with the association in agreeing to remove the enclosure of his patio, or in agreeing to remove the enclosure if the amendment to the declaration did not pass, the compliance the association demanded before filing the petition for arbitration was not that he agree to remove the enclosure, but that he actually remove it. After being notified by counsel that they would commence enforcement action, respondent ran the risk of such an action by not immediately removing the enclosure. 1 The respondent further states that my 1 These proceedings were abated for respondent to seek the additional vote; however, he was unable to do so. That abatement and the continued abatement at the association s request so that the parties might reach a settlement agreement were granted so that the parties might resolve the matter without result to further litigation and did not reflect a determination on the merits of either 4

5 position is not that I am not in compliance, but that I dispute the legal fees. It is noted that the matter of fees is not at issue in the present proceeding. To be reimbursed for its fees, a prevailing party may file a motion subsequent to this final order pursuant to Rule 61B , Florida Administrative Code. The respondent s assertions that since the sliders are within the screen and do not alter the exterior appearance of the unit are without merit, since the declaration of condominium specifically prohibits alterations which increase the interior space of any unit by the enclosure of a screened area. These defenses are STRICKEN. The respondent further states that he feels he is out of compliance with the condominium documents only in that he removed the sliding glass door which connects the unit to the limited common element porch, thereby increasing the air-conditioned space. He presents the defense that the enclosure of his patio consists of hurricane sliders. He further states that he believes a bill sponsored by Senator Charles Clary to mandate storm shutters, or to allow homeowners to protect their property, will supersede the condominium documents. Respondent attaches to the answer a newspaper clipping explaining that the building code legislation would require shutters or impact-resistant glass, or construction that will withstand wind forces that will hit the interior of a home when the windows are broken out. The undersigned notes that measures that concern protecting the interior or living area of a home find no application in the present case, however, since the sliders enclose a patio area which was not intended to be part of the air-conditioned living area. If respondent s argument were to prevail, a resident of any condominium could enlarge the unit, notwithstanding prohibitions in the condominium docum ents, by colonizing any exterior party s position. 5

6 area, so long as such enclosure was hurricane-resistant. In addition, there is no indication in the record that, pursuant to Section (5), Florida Statutes, the board has adopted this measure as an approved hurricane shutter specification. Absent such adoption, the erection of nonconforming hurricane protection is a violation of Section (2), Florida Statutes. See Section (5), Florida Statutes. The defense that an unpermitted enlargement should be allowed because the enclosure materials are hurricane-resistant or hurricane-proof is without legal merit and is STRICKEN. From the foregoing analysis, it is seen that the association is entitled to exercise its right to assert the declaration to require the immediate removal of the porch enclosure and to require that the premises be returned to their original condition. The respondent s defenses are STRICKEN. It is therefore ORDERED: 1. The respondent shall, within 90 days of the date of this order, permanently remove the porch enclosure and return the property to its original condition. Failing which, the association may perform the work and may bill the respondent for the cost thereof. 2. The respondent shall in the future abide by Articles IV and XVI of the declaration of condominium. 6

7 Florida. DONE AND ORDERED this 31st day of August, 2000, at Tallahassee, Leon County, RIGHT TO APPEAL Tyler Powell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida As provided by s , F.S., this final order may be appealed by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties. ATTORNEY S FEES As provided by s , F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B , F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of Rule 61B , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. 7

8 CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 31st day of August, 2000, to: THOMAS F MUNRO II ESQ FOLEY AND LARDNER 777 S FLAGLER DR STE 200 EAST TOWER WEST PALM BEACH FL Attorney for petitioner/association GUNTER B HAFER 333 POPPASQUASH RD BRISTOL RI Respondent/unit owner GUNTER B HAFER 4602 CAPTAIN S WAY JUPITER FL Tyler Powell, Arbitrator 8