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 VENETIAN CONDOMINIUM, INC., a Condominium, Petitioner, v. Case No ISAAC and RACHEL COHEN, Respondents. / SUMMARY FINAL ORDER Venetian Condominium, Inc. (petitioner or association) filed a petition for arbitration against Isaac and Rachel Cohen (respondents or unit owners) on January 22, The petition alleges that the Cohens installed tile on their balcony without the association s required approval, in violation of the rules and regulations pertaining to balcony tile and its balcony tile policy. An answer to the petition was filed on May 8, 1997, raising the defenses of estoppel and selective enforcement. Because insufficient facts were alleged to support these defenses, an order was entered striking the defenses and permitting the respondents to file an amended answer, which they did on June 3, The association was required to respond to the proffered examples o f selective enforcement; and the respondents were then permitted to reply to the response, which they did on August 29, Their first affirmative defense alleges that approval for reinstallation of the tile was given on behalf of the association by Mr. Allen, the condominium manager. The respondents argue that the tile policy does not require the written approval of the association, only approval as given by Allen. Their second affirmative defense is that the associat ion has selectively enforced the rules and regulations and continuously picked on the respondents on account of their Jewish descent. They allege that balcony tile violations exist in the following units: unit 401, unit 503, penthouse 4, unit

2 1008, unit 609, unit 603 and unit Article III, Section 1 of the declaration of condominium provides that the [a]ssociation, at its expense, shall be responsible for the maintenance and repair and replacement of: (a) all portions of the Apartments which contribute to the support of the Building, excluding, however, interior walls, ceiling and floors not damaged due to structural defects, and including, without intending to limit the same to outside walls of the building, structural slabs, roof and loadbearing columns. Under this provision, the association is responsible for maintaining the balco ny, which is a structural slab. Article III, Section 2 of the declaration provides that the responsibility of the Apartment Owner shall be as follows: (e) not to make any alterations in the portions of the Apartment or the Building which are to be maintained by the Association or remove any portion thereof or make any additions thereto or do anything which would or might jeopardize or impair the safety or soundness of the Building without first obtaining the written consent of the Board of Governors of the Association and all first mortgagees of individual units. This provision, in combination with the prior provision which sets out the association s responsibility for maintaining the balconies, specifies that before a unit owner makes any alterations to the balcony, he or she must first obtain the written consent of the board of governors and all first mortgagees of the unit. On October 3, 1994, the board of governors for the association amended the rules and regulations pertaining to balcony tile. Rules 5 and 13 state: 5. BALCONIES (a) CONSENT REQUIRED. No changes by way of addition, painting, decorating or alterations to the outside of apartments, including balconies, are allowed without the prior written consent of the Association. (b) BALCONY SURFACES. No decorative surface may be installed or replaced on any balcony surface. All carpets must have 2

3 been removed by December 31, 1993, but tile existing on a balcony as of February 14, 1994 may be maintained until such time as an engineer retained by the Association determines that the underlying surface needs to be inspected and/or repaired. In that event, the Association may require that some or all of the tile be removed to permit inspection of, and/or repairs to, the underlying surface. Once removed, decorative surfaces shall not be reinstalled without the approval of the association. * * * 13. ALTERATIONS TO APARTMENTS. The written approval of the Manager is required before any alterations are made to: windows or sliding glass door units; any wall, ceiling, floor or portion of the apartment which contributes to the support of the building; any part of the plumbing, electric wiring, air-conditioning or ventilation ducts; the air-conditioning equipment, water heater, the building s TV antennae cable or the balcony. The board also adopted a policy that basically provides that if the engineer for the balcony project determines that 25% or more of the balcony must be removed for inspection or repair of the balcony slab, all of the tile will be removed and may not be replaced or new tile installed; however, if less than 25% of the tile is removed, and the owner does not authorize removal of all the tile, the tile will be removed, the surface repaired and waterproofed, and the owner may arrange for reinstallation of the removed tiles, at his or her own expense. In their amended answer the Cohens do not attack the existence or validity of the amended rules and regulations or the balcony tile policy. Nor do they deny that the balcony tile policy has been posted on the association s official bulletin board since its adoption in March However, they claim that they did not receive a copy of either the rules or the balcony tile policy. The fact that they did not receive a copy of the rules, if proven, does not release them from complying with them. 3

4 Subsequent to the association s adoption of Rules 5 and 13, all of the respondents balcony tile was removed for inspection and repair of the underlying surface. Thereafter, the respondents reinstalled tile on their balcony without seeking or obtaining the approval of the association. The respondents first argue that they obtained the verbal approval of the manager, relied on his apparent authority as an agent of the board of directors and, therefore, the association should be estopped from requiring the removal of their tile for this reason. Estoppel requires 1) a representation about a material fact that is contrary to a later asserted representation or position; 2) reliance on the first representation; 3) and a detrimental change by the adverse party caused by his reliance. State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). Rule 13 provides that the written approval of the manager is required for any alterations to a balcony. Assuming this provision applied to the situation at hand, the respondents did not obtain the manager s written approval. Furthermore, the documents specifically require the approval of the association prior to the reinstallation of balcony tile. Given the specificity of this rule, applying as it does to the reinstallation of tile, it was not reasonable for the respondents to rely on the verbal representation of the manager, assuming such was made, that they could reinstall their balcony tile following its removal. See Pelican Reef Condominium Association, Inc. v. Caban, Arb. Case No , Final Order (Nov. 14, 1996) (estoppel requires reasonable reliance, found to be lacking where association president unwittingly signed a permission form allowing a lockable door to be installed on the common elements by owner. Because the documents required approval of the board of changes to the common elements, and did not delegate this authority to the president, such reliance was unwarranted and unreasonable). Respondents also argue that several unit owners were permitted by the association to reinstall their balcony tile. Selective enforcement requires a showing that the other violations permitted by the board are comparable to the type of violation involved in the instant case. Scarfone v. 4

5 Culverhouse, 443 So.2d 122 (Fla. 2d DCA 1983)(injunction against alterations to unit would not be estopped on grounds of selective enforcement absent showing that enjoined alteration was comparable to the type of modification permitted to be made to another unit). Respondents alleged that balcony tile violations existed in the following units: unit 401, unit 503, penthouse 4, unit 1008, unit 609, unit 603 and unit The association filed a response to these allegations and respondents were given an opportunity to reply and to dispute these facts, which they failed to do. In fact, all of the tile on the balconies of units 401, 503, 1008 and 603 was removed and none of the tile was replaced. The current surface of these balconies is a waterproof membrane. The balcony of penthouse 4 was not tiled, and its current surface is waterproof membrane. The balcony of unit 609 was carpeted previously and its current surface is membrane. The balcony of unit 1515 was previously tiled; less than 25% of the tile was removed to facilitate the installation of a new railing. The removed tile was not replaced and waterproof membrane was installed instead. The respondents have failed to show selective enforcement under these facts. Of the examples put forth by the respondents which might have been comparable to their situation--where all of the tile or carpet was removed from a balcony--none of it has been replaced. Unit 1515 had only a small portion of the tile removed, i.e., less than 25%; while it was permitted to keep the tile that did not have to be removed, it was not permitted to reinstall the tile that was removed. This situation is not comparable to the respondents. The respondents have replaced their balcony t ile after its removal for inspection and repair of their balcony. They have not obtained the approval of the association, as required by Rule 5. They have not alleged any adequate rationale for relieving them of this requirement, nor have they alleged facts which would support their selective enforcement or estoppel defenses. RELIEF, ORDER AND REMEDY The relief requested by the association, an order requiring that the respondents remove the 5

6 tile from their balcony, is GRANTED. Wit hin 30 days of the date of this order, the respondents shall remove the tile from their balcony. If they shall fail to do so, the association may perform the work and bill the respondents for its cost. DONE AND ORDERED this 3rd day of December 1997, at Tallahassee, Leon County, Florida. Patricia A. Draper, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida

7 RIGHT OF APPEAL In accordance wit h Section , Florida Statutes, a part y adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency and is not appealable to the district courts of appeal. CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the forego ing was mailed by U.S. mail, postage prepaid, to Marvin P. Pastel, II, Esq., Becker & Poliakoff, P.A., P.O. Box 9057 Ft. Lauderdale, FL and Greg Ross, Esq., 400 S.E. 8th Street, Ft. Lauderdale, FL this the 3rd day of December Patricia A. Draper, Arbitrator 7