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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION WESTWIND LAKES GARDEN HOMES CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No OLGA FABAT, Respondent. / FINAL ORDER On April 25, 2016, Westwind Lakes Garden Homes Condominium Association, Inc. (the Association) filed a petition for mandatory non-binding arbitration naming Olga Fabat (Respondent) as the respondent. The petition alleges that Respondent has violated the Association s governing documents by, without prior approval, altering and replacing the tiles on the outside front portion of her unit. On June 28, 2016, Respondent filed an answer raising the defenses of estoppel by acquiescence and selective enforcement. A final hearing was held in this matter on September 22, 2016, at which time the parties were permitted to present evidence and witness testimony. Both parties have filed proposed final orders. APPEARANCES For Petitioners: Erik A. Perez, Esq. Cuevas & Garcia, P.A SW 40th Street, Suite 600 Miami, FL

2 For Respondent: Christina Vilaboa-Abel, Esq. VILABOA ABEL LAW, PA 6303 Blue Lagoon Dr., Suite 400 Miami, FL Attorney for Respondent 1. Westwind Lakes Gardens Homes Condominium Association, Inc. is the legal entity responsible for the operation of the Westwind Lakes Gardens Homes Condominium (the Condominium) located in Miami-Dade County, Florida. 2. Respondent owns unit at the Condominium located at 6696 SW 152 nd Place, Miami, Florida When Respondent purchased her unit in July 2006 the unit s front porch was covered with red tile. 4. Sometime in February 2016, a contractor hired by Respondent placed light beige tile on top of the red tile. 5. Respondent never sought permission from the Association to install the new tile. 6. Respondent testified, that based upon conversations with other owners and previous a previous board member, she believed that the modification did not require the Association s approval. 7. Respondent s front porch is a common element. 8. The following units owners have recently modified the tile on their front porches. a. Unit located at 6836 SW Place i. The unit is owned by Isabel Alvarez. ii. Before installing the new tile, Ms. Alvarez sought the Association s approval by submitting a request form provided by the Association. 2

3 1. On the form, Ms. Alvarez states that she needed approval to install tile in the entrance of her home because the current tile is broken and new tile will be the same type of tile. 2. The form states that it was submitted on March 21, 2016, and was that the request was approved. b. Unit located at SW 68 th Street: i. The is owned by Maria Chavez who recently installed imitation stone tile. ii. Before installing the new tile, Ms. Chavez sought the Association s approval by submitting a request form provided by the Association. 1. On the form, Ms. Chavez does not describe the nature of the change other than she needs approval to change the tile at the front of her property. 2. The form states that it was received on December 1, 2015, and the request was approved on December 3, c. Unit located at 6794 SW 152 nd Place i. The unit is owned by Sofia Martin. ii. Before installing the new tile, Ms. Martin sought the Association s approval by submitting a request form provided by the Association. 1. On the form, Ms. Martin does not describe the nature of the modification other than she needs approval to change the tile at the front of her property because the broken tile caused her to fall. 3

4 2. The form states that it was received April The form indicates that the request was approved; however, the date of approval is blank. 9. There is no consistency as to the color, pattern or type of tile approved by the Association. 10. Idoris Pedroso, the Associations current president, testified that since she became president in November 2015, the Association has always required that owners, prior to installing new tile, to submit an application for approval along with a sample of the tile to be installed. 11. At least six other unit owners have installed vastly differing types and colors of tile on the front porches of their units. These modifications were made at least eight years ago when the Association had a different property manager, the Continental Group. The Association s current manager Yasnelly Pedroso, testified that the prior management company took no action regarding these modifications. 12. Respondent testified that she was elected to the Association s board of directors as the result of a recall in January 2012 and was appointed as the president. 13. At the time Respondent was elected to the board, the Continental Group managed the Association. Shortly after the successful recall, the board terminated the Continental Group as the Association s manager, because, in part, the Continental Group did not enforce the governing documents. 14. Respondent testified that while she was serving on the board, a fellow board member, Betty Rodriguez, made an unapproved modification to the back area of her unit by installing a room with a shingled roof and windows. When Respondent saw the 4

5 violation, she contacted the Association s attorney who sent a letter to Ms. Rodriguez demanding removal of the modification. 15. Article XV(B) of the Declaration provides as follows: There shall be no alterations, exterior door or color changes, or additions to the Common Elements or Limited Common Elements, except as the same are authorized by the Board of Directors of the Association. Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant section , Florida Statutes. Respondent admits that she has replaced the tile on the front porch of her unit with a different color tile. Pursuant to Article XV(B) of the Declaration such a modification is subject to approval by the Association s board of directors. Respondent admits that she has not sought the Association s permission to make the modification. Therefore, she has violated Article XV(B) of the Declaration. Selective Enforcement Respondent contends that the Association is selectively enforcing the above restrictions. To prove the defense of selective enforcement, a party has to show that there are instances of similar violations of which the governing body has notice but in which they have refused to act. See White Egret Condo, Inc. v. Franklin, 379 So.2d 346 (Fla. 1979); see also Killearn Acres Homeowners Ass n, Inc. v. Keever, 595 So.2d 1019, 1021 (Fla. 1st DCA 1992); and, Camelot II Condo Ass n, Inc. v. Dirse, Arb. Case No , Final Order (May 10, 2001.) The respondents bear the burden of proving their affirmative defense. Sea Breeze South Apartments Condo, Inc. v. Beck, Arb. Case No , Final Order (May 17, 2002). 5

6 The Association has demonstrated that other owners who have recently modified the tile on the front porch of their units porches before and after Respondent made similar modifications sought the permission of the Association before doing so. Therefore, Respondent has not proven selective enforcement. Estoppel Respondent has also raised the defense of estoppel. The elements of estoppel are: (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reasonable reliance on that representation; and (3) a change in position to his detriment by the party claiming the estoppel by the representation and reliance. Enegren v. Marathon Country Club Condo Ass n, Inc., 525 So. 2d 488, 489 (Fla. 3d DCA 1988). In her answer, Respondent contends that the Association should be estopped from taking action against her because the Association has continuously allowed other unit owners to make similar modifications in the past without taking action. Respondent contends that the Association s silence has lead Respondent and other unit owners to believe that such modifications are permissible. It appears that while the Association was managed by the Continental Group, the Association ignored modifications similar to those made by Respondent that were made without board approval. However, these additions occurred at least eight years ago. Additionally, Respondent stated that when she was elected to the board in 2012 as the result of a recall, the post-recall board terminated the Continental Group, in part, because it had failed to enforce the governing documents. Respondent even testified that while she was on the board, the Association, at her behest, took action against a fellow board member who had made an illegal modification to the area behind her unit. 6

7 Therefore, Respondent was aware that the provisions of the governing documents in question are being enforced by the Association. Accordingly, the Association is not estopped from taking action against Respondent. Non-Material Alteration Respondent contends that the modification she has made should not be deemed a material alteration and, therefore, should be permitted. However, Article XV(B) of the Declaration is not restricted to material alterations, rather, it applies to alterations, exterior door or color changes, or additions to the common elements or limited Common element. This is a more stringent restriction than prohibiting material alterations. Therefore, Respondents modification not need constitute a material alteration in order to be within the scope of Article XV(B) of the Declaration. Standard of Approval In her Proposed Final Order, Respondent questions, for the first time, the Association s goal in requiring written requests for authorization to modify front porch tiling because of the Association has approved a variety of tiling. Additionally, Respondent s Proposed Final Order challenges the requirement because the Association has failed to provide evidence of the procedures and standards for evaluating approval once a request for approval has been submitted. 1 The governing documents require modifications such as the retiling of a front porch with a different type of tile to be approved by the Association. Therefore, Respondent must seek the Association s authorization. If the Association denies Respondent s request, then Respondent bears the burden of proving that the 1 Based upon the testimony of Idoris Pedroso, the Associations current president, it is apparent that, at the minimum, the Association requires the submission of a sample of the tile to be installed to before approval is granted to install it. 7

8 Association s denial is arbitrary and capricious. However, Respondent never sought approval. Remedy The appropriate remedy in the instant case is to require Respondent to submit an application seeking retroactive approval for the installation of the new tile. The Association is reminded that it must review the application using the same standards that were applied to the units that were granted permission to install new tile. Based upon the foregoing, it is ORDERED: Within thirty (30) days of the date this order, Respondent shall submit a written application to the Association seeking approval of the tile she installed on the front porch of her unit in February If the application is denied, Respondent shall within thirty (30) days of the denial either remove the new tiles or install tiles that are approved by the Association. DONE AND ORDERED this 22 nd day of December, 2016, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida Telephone: ; Fax: Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. 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 with Rule 61B , F.A.C. 8

9 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and to the following persons on this 22 nd day of December, 2016: Erik A. Perez, Esq. Cuevas & Garcia, P.A SW 40th Street, Suite 600 Miami, FL Attorney for Petitioner Christina Vilaboa-Abel, Esq. VILABOA ABEL LAW, PA 6303 Blue Lagoon Dr., Suite 400 Miami, FL Attorney for Respondent James W. Earl, Arbitrator 9