ORDER STRIKING AFFIRMATIVE DEFENSES

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION GARY KREITMAN, Petitioner, v. THE DECOPLAGE CONDOMINIUM ASSOCIATION, INC., Respondent. Case No ORDER STRIKING AFFIRMATIVE DEFENSES The amended petition alleges ten claims: Count 1 claims that the association is charging late fees on the nonpayment of fines; Count 2 claims that the association failed to properly notice board and committee meetings; Count 3 claims that the budget committee and decorating committee met without giving the required notice or any other notice of their meetings; Count 4 claims that the association adopted rules regarding unit use without giving proper notice of the meeting at which the rules were adopted; Count 5 claims that the association failed to give proper notice of a meeting to consider special assessments; Count 6 claims that a special unit owners meeting was held to consider bylaw amendments without proper notice and was held more than 15 days after the prior adjourned special meeting fell short of a quorum; Count 7 claims that during the summer of 1996 the association. made material alterations to the penthouse floor without approval of 75% of the unit owners; Count 8 claims that there is not a director on the rules enforcement committee, as required by the bylaws; Count 9 claims that certain official records were requested by the petitioner and not provided; and Count 10 claims that the association altered the common elements without 75% unit owner approval by limiting access to the penthouse floor to those with an elevator key and by converting a ramp to a parking space for an owner s use. The association raises a number of affirmative defenses which will be examined here. Respondent s affirmative defense #1 states that the petitioner fails to state a cause of action as he has failed to allege and cannot establish any legally cognizable damages. Respondent does not specify which of petitioner s claims it refers to. With regard to the petitioner s official records claims, damages are sought and may be awarded for a violation of Section (12)(c), Florida Statutes. Furthermore, the petitioner seeks injunctive-type relief on his other claims. Therefore, affirmative defense #1 is stricken. Affirmative defense #2 states that even if petitioner could establish any violation of Florida condominium law or the governing documents, petitioner s claims are grounded on mere technical violations of the law or documents without any liability on the part of the respondent or actual damage to the petitioner. Much of the Condominium Act consists of technicalities, yet it is enforceable. For instance, Section (12)(c), Florida Statutes, provides that a unit owner shall be granted access to official records of the association and if access is not provided within 10 days of a written request it will be presumed that the failure was willful and the association will be ordered to pay minimum or actual damages. Pursuant to Section (2)(c), Florida Statutes, if the agenda of a board meeting fails to list an item taken up by the board, any action taken on that item will be invalided. See Dehne v. Ocean Club III Condominium Association, Inc., Arb. Case No , Summary Final Order (Jan. 31, 1994)(board violated s (2)(c), F.S., by appointing replacement board members at board meeting where replacement of directors was not an item listed on the agenda. Replacement of board members deemed void). Therefore, affirmative defense #2 is stricken.

2 Affirmative defense #12 claims that the actions taken by the association resulted in benefit and betterment to the condominium and that it would be inequitable to require any such repairs, replacements and betterments to be demolished and removed at additional cost to the association members. The respondent cites no legal authority for this proposition and the arbitrator is not aware of any. In fact, several arbitration final orders have directed condominium associations to remove substantial changes or improvements to the common elements that were constructed without unit owner approval. In Martin v. Central Park South Condominium Association, Inc., Arb. Case No , Summary Final Order (Nov. 23, 1993), the association was required to remove a walkway between buildings connecting them to the swimming area, built at a cost of $ In Shore Haven Condominium Association, Inc. v. Drake, Arb. Case No , Final Order (Jan. 15, 1993), the association was required to remove several storage sheds that were built on the common elements without the required unit owner approval. Therefore, affirmative defense #12 is stricken. Several additional affirmative defenses lack a factual basis and will be stricken for this reason. Rule 61B , Florida Administrative Code, requires a respondent to file an answer which includes every defense in law or fact to the claim(s) and which identifies all facts contained in the petition which the respondent disputes. Construed in its entirety, the rule requires that facts claimed in support of affirmative defenses should be stated within the affirmative defenses. Glen Cove Apartments Condominiums Master Association, Inc. v. Weit, Arb. Case No , Order on Motion to Strike (August 20, 1993). Affirmative defense #5 states that the petitioner failed to mitigate damages, thus recovery is barred or limited. However, it fails to explain how the petitioner failed to mitigate his damages, or even to which claims this defense applies. Affirmative defense #7 states that the petitioner is estopped or has waived or is otherwise barred from pursuing this action regarding but (not) limited to petitioner s inconsistent positions concerning the efficacy of the amendments in view of the previous decision of the arbitrator concerning the invalidity of amendments which were not adopted by resort to the step down provisions of the bylaws. This defense needs to be fleshed out with facts such as which previous decision of the arbitrator is referenced and what inconsistent positions the petitioner took. Affirmative defense #9 states that each and every claim of petitioner based or predicated on the declaration, articles or bylaws and any amendments thereto is precluded by waiver/estoppel since there has been an inexcusable delay and/or lapse of time which would make it inequitable for petitioner to proceed--citing the passage of time and that the association has changed its position and acted in reliance on such delay or inaction. To establish waiver, it must be shown that a right of the unit owner existed at the time of the waiver, the unit owner had knowledge of it, and intended to relinquish that right. Savoy East Association, Inc. v. Jansson, Arb. Case No , Final Order (Jan. 4, 1994). To show estoppel, the respondent must show: 1) a representation about a material fact that is contrary to a later asserted representation or position; 2) reasonable 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). The respondent has alleged only reliance by the association and the passage of time. The mere passage of time is not sufficient to establish waiver. See Mizell v. Deal, 654 So.2d 659 (Fla. 5th DCA 1995). Based on the foregoing, it is ORDERED: 1. Affirmative defenses #1, #2 and #12 are STRICKEN. 2. Affirmative defenses #5, #7 and #9 are STRICKEN. Respondent may file an amended answer restating these defenses, including all facts supporting the defenses, on or before July 20, The amended answer may be filed by fax at DONE AND ORDERED this 9th day of July 1998, at Tallahassee, Leon County,

3 Florida. Patricia A. Draper, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida Copies furnished to: David C. Arnold, Esq S.W. 164 Street Miami, FL Attorney for petitioner Nancy C. Valcarce, Esq Brickell Ave., Third Floor Miami, FL Attorney for respondent David H. Rogel, Esq Blue Lagoon Drive, Suite 100 Miami, FL Attorney for respondent H:\PAD16\ STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION QUATRAINE CONDOMINIUM II ASSOCIATION, INC., Petitioner, v. DANIEL GETZ, Respondent. Case No FINAL ORDER DISMISSING PETITION FOR ARBITRATION A formal hearing in this case was held before the arbitrator beginning at 1:20 p.m. on July 7, 1998, by video-teleconference with the petitioner appearing in Miami, Florida and the arbitrator presiding in Tallahassee, Florida. The respondent, representing himself in this

4 proceeding, did not attend the hearing and did not send an attorney or designated representative to appear on his behalf. The petitioner presented the testimony of witnesses and offered documents into evidence. This order is entered after consideration of the complete record in this matter. APPEARANCES For Petitioner: Steven M. Davis, Esq. Becker & Poliakoff, P.A Blue Lagoon Drive, Suite 100 Miami, FL PROCEDURAL STATEMENT The original petition for arbitration was filed in this matter on July 16, 1997, seeking removal of respondent s dogs from the condominium property. An Order Requiring Mediation was entered on September 9, However, the respondent did not accept delivery of the order, which was sent by certified mail. Therefore, on November 10, 1997, an Order Vacating Order Requiring Mediation, Order Requiring Answer, and Order Requiring Service were entered, directing the petitioner to serve a copy of the petition and Order on respondent. Although no proof of service was received, the respondent did file an answer to the petition on December 2, 1997, stating that his second dog had been euthanized on August 4, Respondent attached a certificate from a veterinarian stating that one dog had been euthanized, and he also attached a note from the veterinarian stating that the respondent s other dog s weight was 68 pounds, as of October 4, On December 24, 1997 an Order to Show Cause was entered requiring the petitioner to show good cause why the case should not be dismissed as moot, since it appeared the respondent had taken corrective action which resolved the issues in dispute. On January 5, 1998, the petitioner responded to the Order to Show Cause, and alleged that the respondent had been keeping three dogs in his unit, and that the two remaining dogs constituted a nuisance because they were allowed to run loose, and the respondent did not clean up after them. Petitioner attached a copy of the rules and regulations of the condominium to its response, and stated that the rules permitted only one dog per unit. The case was subsequently set for hearing. Both parties filed proposed witness and exhibit lists. STATEMENT OF THE ISSUES This issues originally presented via the pleadings were: Whether the respondent has been keeping more than two dogs in his unit; and if the respondent has been keeping only two dogs in his unit, whether the combined weight of the dogs exceeds seventy pounds; and whether the respondent s dog(s) is/are a nuisance. At the hearing, petitioner indicated it was dropping the claim that the dogs were a nuisance, and no evidence was presented on this issue. Petitioner also attempted to amend its claim at the hearing, based on a title search which was performed by petitioner s attorney on July 6, 1998, and which revealed that respondent is not the original owner of the unit in question. Based on this new information, petitioner sought to amend its claim to state that as a non-original owner, the restriction on pets set forth in article 30, paragraph J of the declaration (permitting original owners to keep two pets whose combined weight does not exceed 70 pounds, or one pet whose weight may exceed 70 pounds) did not apply to the respondent. The petitioner asserts that the more restrictive provisions of the condominium rules and regulations, which limit the number of pets a non-original owner can keep to one, and limits the weight of the pet to 30 pounds, should be applied to respondent FINDINGS OF FACT 1. Article 30, paragraph J of the declaration of condominium of the Quatraine Condominium Association II, Inc., states:

5 J. Pets. The Condominium Association, by its rules and regulations, may impose prohibitions on the keeping of pets in the condominium residences. Such restrictions shall not, however, prohibit original owners of condominium residences from bringing and keeping no more than two pets, whose combined weight does not exceed seventy (70) pounds (cats or dogs), or only one (1) pet in the event its weight exceeds seventy (70) pounds, upon the Condominium Property, and within the owner s residence. Such pets shall nevertheless be subject to the reasonable rules and regulations promulgated by the Condominium Association applicable thereto. The QHA shall have senior authority to control the keeping of pets within not only the Condominium Property, but elsewhere in Quatraine, except that the rules and regulations promulgated by the QHA shall not prohibit original owners from bringing pets conforming to the requirements set forth above upon the Condominium Property and within the owner s condominium residence. This Paragraph J. shall not be amended without the written consent of the Developer so long as Developer owns any unit in the Condominium nor thereafter in any way which would cause those original owners who had brought pets meeting the requirements of this Paragraph upon the Condominium Property and in the condominium units from keeping those pets. This Paragraph J. shall not be construed to authorize nor permit any pet to be kept within any condominium unit nor upon the Condominium Property which pet is or becomes a legal nuisance. (Emphasis added.) 2. Paragraph 6 of the Rules and Regulations Summary of the Quatraine Condominium Association II, Inc., states: (6) No OWNER may bring or keep on Condominium property more than one (1) dog or one (1) cat. Lessees are not allowed to have ANY pets. Allowable pets, are limited to one (1) per unit, not to exceed a weight of thirty (30) lbs at full growth. A letter from your Vet is required, stating breed and expected weight at full growth. Use of a Pooper-Scooper is mandatory, and ALL dogs must be kept on a leash. No pets are allowed to be tied outside the unit and left unattended. (Emphasis added.) 3. On or about April 25, 1997, the association, through its attorney Steven M. Davis, sent respondent a letter stating in applicable part: The Association has advised me that you are keeping dogs in your Condominium unit in violation of the Rules and Regulations of the Association. Article 30, paragraph J provides that the Association via its Rules and Regulations, may impose prohibitions on the keeping of pets in the Condominium residence. The Association has advised me that you are currently keeping three large dogs in violation of the aforementioned rule. In addition to being in

6 violation of the 70 pound weight limit, the dogs are a nuisance which is also in violation of the Rule. 4. In paragraphs (3) and (4) of its petition for arbitration, the association alleges that: (3) The Declaration in Article 30 Paragraph J provides as follow (sic): J. Pets. The Condominium Association, by its rules and regulations, may impose prohibitions on the keeping of pets in the condominium residences. Such restrictions shall not, however, prohibit original owners of condominium residences from bringing and keeping no more than two pets, whose combined weight does not exceed seventy (70) pounds (cats or dogs), or only one (1) pet in the event its weight exceeds seventy (70) pounds, upon the Condominium Property, and within the owner s residence... This Paragraph J. shall not be construed to authorize nor permit any pet to be kept within any condominium unit nor upon the Condominium Property which pet is or becomes a legal nuisance. (4) Respondent has been keeping two (2) to three (3) large dogs in his condominium unit in violation of the aforementioned rule. In addition to being in violation of the 70 pound weight limit the dogs are a nuisance which is also a violation of the rule. CONCLUSIONS OF LAW Prior to bringing a legal action to enforce a restrictive covenant such as the one contained within article 30, paragraph J of the declaration of condominium of Quatraine Condominium II Association, Inc., the petitioner must give the respondent: (1) constructive or actual notice of the existence of the restriction prior to enforcement; (2) a reasonable demand for compliance with the restriction after the breach has occurred; and (3) compliance with any applicable procedural due process considerations which require notice of the commencement of litigation and an opportunity to be heard in court. Majestic View Condominium Association, Inc. v. Bolotin, 429 So.2d 438 (Fla. 4th DCA 1983). In the instant case, the notice which was given to the respondent via petitioner s letter dated April 25, 1997, advised the respondent that he was in violation of the 70 pound weight limit, and that the dogs are a nuisance which is also in violation of the Rule. The letter makes reference to Article 30, paragraph J, though it does not specify whether it refers to the condominium s rules and regulations (which do not contain an article 30, paragraph J), or the declaration of condominium (which does contain a provision with this designation). The rules and regulations do not contain any mention of a 70 pound weight limit, while the declaration of condominium does. This letter is ambiguous, as it does not clearly set forth the specific rule or provision of the declaration of condominium which the respondent is alleged to have violated, while the reference to the 70 pound weight restriction implies that the association seeks to enforce the 2 pet, 70 pound combined weight restriction contained in the declaration. The petition likewise alleges that the respondent is in violation of the 70 pound weight limit, and quotes from article 30, paragraph J of the declaration where this weight limit appears. The association sought to amend its petition during the hearing so as to apply the more restrictive 1 pet, 30 pound weight limit to the respondent s dog, presumably because it discovered on the day before the hearing that the respondent is not the original owner of the unit,

7 and therefore, the more lenient 2 pet, 70 pound total weight limit contained in the declaration does not apply to him. The association did not give the respondent notice that it intended to enforce the 1 pet, 30 pound restriction. Since the association asserts that the 2 pet, 70 pound weight limit is not applicable to the respondent, and the association has not given the respondent notice that it seeks to enforce the 1 pet, 30 pound weight limit, the petition for arbitration is hereby DISMISSED without prejudice to refile after the applicable notice requirements (now codified in section (4) (b), Florida Statutes) have been met. ORDERED this 20th day of July, 1998, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL PURSUANT TO SECTION , FLORIDA STATUTES, THIS FINAL ORDER SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR A TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to: Steven M. Davis, Esq., Becker & Poliakoff, P.A., 5201 Blue Lagoon Dr., Suite 100, Miami, FL 33126; and Daniel Getz, NE 3rd Ct., Miami, FL 33179, this 20th day of July, Leslie O. Anderson-Adams, Arbitrator Steven M. Davis, Esq. Becker & Poliakoff, P.A Blue Lagoon Dr., Suite 100 Miami, FL Daniel Getz NE 3rd Ct. Miami, FL 33179