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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Covert II Association, Inc., Petitioner, v. Case No Margaret A. Williams and Roy M. Williams, as Co-Trustees of the Margaret A. Williams Trust Agreement, Dated December 12, 1990, as amended, Respondent. / SUMMARY FINAL ORDER Statement of the Issue The issue in this case is whether Margaret A. Williams and Roy M. Williams, as Co-Trustees of the Margaret A. Williams Trust Agreement, Dated December 12, 1990, as amended (Respondent), improperly removed and installed windows on the lanai of the unit without obtaining prior written approval of the board of directors of Covert II Association, Inc. (the Association). Procedural History On May 15, 2014, the Association filed Petitioner s Verified Petition for Non- Binding Arbitration. An Order Requiring Answer was entered on May 27, On June 12, 2014, Respondent filed a Motion to Dismiss for Lack of Jurisdiction Over the Person. On July 2, 2014, Respondent was ordered to file proof of ownership of the unit. On July 14, 2014, Respondent filed an Answer. The Answer was 1

2 accompanied by a letter dated July 11, 2014, wherein Respondent withdrew the Motion to Dismiss. A telephonic Case Management Conference was held on August 1, Pursuant to the August 1, 2014 Order After Case Management Conference, the parties filed the following: Pleading Date Filed Petitioner s First Amended Petition August 8, 2014 for Non-Binding Arbitration 1 Answer of Margaret and Roy Williams, Trustees to Amended August 13, 2014 Petition for Arbitration Response to Affirmative Defenses August 27, 2014 The Association did not file the photos referenced in the Association s December 12, 2013 pre-arbitration notice as required by the Order After Case Management Conference. Findings of Fact 1. The Association is the corporate entity responsible for the operation of Covert II, a Condominium. 2. Respondent is the owner of Unit 301 within the condominium. 3. Respondent filed Exhibit A to the Declaration of Condominium (Declaration) as originally recorded in the early 1970s. Exhibit A is a set of diagrams of the condominium building. The diagrams show Respondent s unit, and all the other units in the building, as having a screened porch. 2 1 The Amended Petition named the proper party Respondent. 2 The arbitrator assumes that the abbreviation SCR. in the diagrams means screened. 2

3 4. At some time in mid-2013, Respondent removed and reinstalled windows on the porch 3 of the unit. There is no evidence as to when windows originally were installed on the balcony of Respondent s unit, but there is no indication they were installed by the developer. 5. In part, the Declaration of Condominium (Declaration) provides: ARTICLE 3 Definitions 3.4 Limited Common Elements. Limited common elements means and includes those common elements which are reserved for use of a certain Unit or Units to the exclusion of the other Units. The use and enjoyment of the following common elements shall be limited to the Unit owners indicated: (b) When there is attached to a Unit or Units a balcony, loggia, terrace, canopy, [or] stairway, the Unit or Units which are being served shall have the exclusive use thereof. ARTICLE 5 The Units 5.3 Appurtenances to units. The owner of each Unit shall own a share and certain interests in the Condominium property which share and interests are appurtenant to his Unit, including but not limited to the following items that are appurtenant to the Units as indicated: (b) Limited Common Elements. An undivided share in and exclusive use of the limited common elements, including but not limited to the appurtenances to the several Units as indicated: (ii) Balconies, loggias, terraces, canopies and stairways to the Units being served thereby, if any, as indicated on Exhibit A attached hereto. ARTICLE 6 Maintenance, Alteration and Improvement 6.1 Maintenance, Alteration and Improvement. The responsibility for the maintenance of the Condominium property and restrictions upon the alteration and improvement thereof shall be as hereinafter provided. 3 As shown in the text supra, the Declaration does not use the term porch, but instead uses the terms balcony or loggia. For consistency, an attempt is made throughout this Order to use the term balcony. 3

4 6.2 By the Association. The Association shall maintain, repair and replace at the Association s expense: (a) All portions of a Unit, except interior surfaces, contributing to the support or enclosure of the Unit which portions shall include but not be limited to load-bearing columns and load-bearing walls. 6.3 By the Unit Owner. The responsibility of the Unit Owner shall be as follows: (a) To maintain, repair and replace, at his expense, all portions of his Unit except the portions to be maintained, repaired and replaced by the Association. Such shall be done without disturbing the rights of other Unit Owners. (b) Not to paint or otherwise decorate or change the appearance of any portion of the exterior of the Unit. 6.4 Alteration and Improvement. Except as elsewhere reserved to Developer, neither a Unit Owner nor the Association shall make any alterations in the portions of a Unit that are to be maintained by the Association, or remove any portion of such, or make any additions to them, or do anything that would jeopardize the safety or soundness of the Unit, or impair any easements, without first obtaining the approval in writing of owners of all Units in which such work is to be done, and the approval of the Board of Directors of the Association. A copy of plans for all such work prepared by an architect licensed to practice in this State, shall be filed with the Association prior to the start of the work. 6. In part, the Association s Articles of Incorporation provide: 3.2 Specific Powers. The Association shall have all of the powers and duties set forth in the Condominium Act of the State of Florida, except as limited by these Articles of Incorporation and by the Declaration of Condominium of COVERT II and all of the powers and duties reasonably necessary to operate the Condominium pursuant to such Declaration and as it may be amended from time to time, including but not limited to the following: (f) To make and amend reasonable regulations respecting the use of the property in the Condominium; provided, however, that all of such regulations and amendments thereto shall be approved by not less than 75% of the entire membership of the Association before the same shall become effective. 7. In part, the Association s Rules and Regulations, in effect as of January 30, 2001, provide: 4

5 E. LANAI ENCLOSURES; RULES AND REGULATIONS (Adopted by Owners at annual meeting December 30, 1999) In order to maintain harmony in the appearance of the lanai enclosures located on the west, north and south sides of the Covert II building, the Board of Directors of the Association shall have the responsibility for approving any modification or replacement of any lanai enclosure as follows: 1. Any existing enclosure may be repaired or replaced in the same design and with the same color and type of materials without approval of the Board of Directors. 2. To repair or replacement [sic] of a lanai enclosure which changes or modifies the design, color or type of materials of the then existing enclosure shall be [sic] performed or undertaken without the approval of the Board of Directors received prior to the commencement of any such repair or replacement. 3. In considering and deciding to make or approve a change or modification in the design, color or type of materials for any lanai enclosure, the Board of Directors shall discourage the proliferation of additional types of lanai enclosures from those then existing on the building and shall consider conformity and harmony of the proposed lanai enclosure with other lanai enclosures already existing on the building. 5. A request for approval made by a Unit Owner hereunder shall be in writing accompanied by drawings and specifications for the repair or replacement proposed to be undertaken. The Board of Directors shall within thirty (30) days of receipt of such request accompanied by the drawings and specifications respond in writing to the Unit Owner approving or denying the request or approving the request with such conditions or modifications as the Board shall determine. 6. The determination of the Board of Directors shall be final, binding and conclusive as to the approval, disapproval or making of any change or modification of any lanai enclosure. 8. In the Answer to the Amended Petition, Respondent makes the following admission, Admit Respondents did not obtain prior approval but note Respondents were requested to seek approval after the fact, did so, and approval was denied. 5

6 9. Respondent provided evidence of selective enforcement, consistent with Rule 61B (3), Florida Administrative Code, that in the past the Association has permitted balcony enclosures, but certain balcony enclosures did not match the others. 4 Conclusions of Law The Association is an association within the meaning of Section , Florida Statutes. Pursuant to Section , Florida Statutes, the undersigned has jurisdiction over the parties to, and the subject matter of, this dispute. If no disputed issues of material fact exist, the arbitrator may enter a summary final order. Fla. Admin. Code R. 61B Respondent admits that contrary to the requirement in the governing documents, Respondent did not obtain prior approval for the removal and installation of windows on the balcony of the unit. Respondent further admits that when it sought approval for the windows after the fact, the Association denied Respondent s request for approval. Given these circumstances, Respondent raises various defenses which are addressed below, to the extent necessary. The balcony of each unit is a limited common element appurtenance under Section 5.3 of the Declaration. Further, pursuant to Section 6.3 of the Declaration, a Unit Owner cannot paint or otherwise decorate or change the appearance of any portion of the exterior of the Unit. 4 Respondent filed a color photo showing the entire front of the condominium building identifying each unit by number. The photo was accompanied by a table which attempts to show the elements of selective enforcement for each of the 15 units identified. The significance of these two items is explained in the text under Conclusions of Law. 6

7 Respondent s First Defense is that the Association had no power to promulgate rules relating to the enclosure of lanais without first amending the Declaration. In part, the Association s response to this Affirmative Defense is: Defendants [Respondent] are correct in that the Declaration prohibits changing the appearance of the exterior of the Unit and that it has allowed owners to enclose their lanais. There is, however, no contradiction here. The Association allowed owners to enclose their lanais as long as the outward appearance of the unit did not change. Moreover, and more relevant to the case at hand, Defendants in this case chose to modify their unit without asking the permission of the Board, as prohibited by The Declaration of COVERT II ASSOCIATION, INC. In part, Section (4), Florida Statutes, provides: (4) Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the unit owner shares the common expenses of the condominium and owns the common surplus of the condominium unless the record owner of the unit and all record owners of liens on the unit join in the execution of the amendment and unless all the record owners of all other units in the same condominium approve the amendment. Section 6.4 of the Declaration does not change this statutory requirement. 5 Thus, a unit owner cannot enclose the balcony of the unit without an amendment to the Declaration adopted by all unit owners permitting such enclosure. There is no evidence that any such amendment to the Declaration ever was adopted. Irrespective of the foregoing, the members of the Association apparently adopted rules and regulations relating to lanai enclosures at the December 30, 1999 annual meeting. While the word not appears to be missing from Rule 2, the rules, when read together, require approval from the Association s board of directors for repair or 5 As noted in the text infra, Section 6.4 provides, in part: Neither a Unit Owner nor the Association shall make any alterations in the portions of a Unit that are to be maintained by the Association, or remove any portion of such, or make any additions to them,, without first obtaining the approval in writing of owners of all Units in which such work is to be done, and the approval of the Board of Directors of the Association. 7

8 replacement of a lanai enclosure which changes or modifies the design, color or type of materials of the then-existing enclosure. The parties agree that the board rejected the windows Respondent installed on the balcony. 6 Given the foregoing, the Association s argument goes like this: even though the relevant provisions of the Declaration were never amended to allow the enclosure of balconies, the members of the Association adopted rules relating to balcony enclosures, and Respondent failed to get approval for Respondent s reinstalled balcony enclosure. Stated more succinctly, the Association is saying it will permit the Declaration to be violated as long as the Association member does so in a manner authorized by the Association. This is impermissible. First, Section (4) and the Declaration control over any rules adopted by the Association. See Palermo v. The Tower Residences Condo. Ass n, Inc., Arb. Case No , Summary Final Order (June 30, 2005). They do not permit balcony enclosures barring an amendment to the Declaration. Further, there is no evidence the Association notified all unit owners that it would begin anew enforcing Section 6.3(b) of the Declaration prohibiting a unit owner from changing the appearance of any portion of the exterior of the Unit. See Chattel Shipping and Investment, Inc. v. Brickell Place Condo. Ass n, Inc., 481 So. 2d 29 (Fla. 3 rd DCA 1985), rehearing denied (Jan. 24, 1986). Even if the foregoing actions of the Association were not found to be improper, Respondent has shown that the Association has allowed other balcony enclosures in 6 While neither party stated in any of the pleadings why Respondent s windows were rejected, the December 13, 2013 letter of Association s counsel to Respondent s counsel states the windows Respondent installed were different because they were fixed windows with much darker glass. Additionally, the photos provided by Respondent show that in contrast to the other windows installed on balconies, the row of windows at the top of the window bank installed by Respondent were smaller than the remaining row of windows installed immediately below. This is the reverse of the other window banks that have been installed. 8

9 the past that did not conform with most of the other balcony enclosures, but it denied Respondent s balcony enclosure. For example, Unit 107 has sliding glass doors that run from ceiling to floor, and Unit 308 has a crossbar in the center of larger upper bank of windows. Thus, the Association has engaged in selective enforcement. 7 See Fla. Admin. Code R. 61B (3) and White Egret Condo., Inc. v. Franklin, 379 So.2d 346 (Fla. 1979). Based upon the foregoing, it is ORDERED: The relief requested by the Association is DENIED. DONE AND ORDERED this 17 th day of September, 2014, at Tallahassee, Leon County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Phone: (850) /FAX: (850) Attorney s Fees and Costs As provided by section , Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance Rule 61B , Florida Administrative Code. [Except for this notice, this space intentionally is left blank. A Certificate of Service appears on the next page.] 7 The Association s denial of an application for new windows by the owner of Unit 208 because they did not conform to the rest of the building, after Respondent s application was denied, does not change the result. 9

10 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile and by U.S. Mail to the following persons on this 17 th day of September, 2014: Scott K. Petersen, Esquire Becker & Poliakoff, P.A University Parkway Suite 204 Sarasota, Florida Facsimile: Attorneys for Petitioner Vanda Y. Bayliss, Esq. Sylvia Golden Norris, P.A Stickney Point Rd Sarasota, Florida Facsimile: Attorneys for Respondent Glenn Lang, Arbitrator 10