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 Townhouses at Bonnie Bay Condominium Association, Inc., Petitioner, v. Case No Tracey Mason, Respondent. / FINAL ORDER On December 20, 2007, Townhouses at Bonnie Bay Condominium, Inc. (Petitioner) filed petition for mandatory non-binding arbitration naming Tracy Mason (Respondent) as the respondent. Respondent filed an answer to the petition on January 24, A final hearing was held in this matter on June 18, 2008, at the condominium during which the parties presented the testimony of witnesses, tendered documents into evidence and cross-examined witnesses. The parties have filed recommended orders and post-hearing memoranda. This order is entered after consideration of the complete record in this matter. APPEARANCES For the Association: For Respondent: Shawn G. Brown, Esq. Lang & Brown, P.A. P.O. Box 7990 St. Petersburg, FL Gary P. Coors, Esq. Staack, Simms, & Hernandez, P.A. 900 Drew Street, Suite 1 Clearwater, FL

2 Statement of Issue 1. Whether Respondent s modifications to her balcony and replacement of a sliding glass door onto her balcony with a wall constitutes an alteration to the common elements or limited common elements for which Respondent had not obtained permission in violation of article 16(A) of the declaration of condominium, and if so, whether Petitioner is estopped from enforcing the provision? 2. Whether Respondent s changes constitute a violation of rule H(1) of Petitioner s rules and regulations which prohibits structural alteration or other changes or additions to exterior walls, overhangs, roofs, balconies and limited common elements which would be visible from the common elements, and if so, whether Petitioner is estopped from enforcing the provision? Findings Of Fact 1. Townhouses at Bonnie Bay Condominium, Inc. is the legal entity responsible for the operation of the Bonnie Bay Condominium (the condominium). 2. Respondent owns unit 6234 at the condominium. 3. The condominium consists of multiple buildings containing 56 units. The building containing Respondent s unit consists of four units, the middle units are two stories and the end units are one story. Other buildings contain a different number of units and configurations. For example not all of the two story units have balconies. 4. Petitioner has approved the construction of screens rooms and sun rooms/florida rooms on the limited common element area located in the rear of a unit. Examples of such modifications are as follows 1 : 1 Del Edwards, president of the association, testified that 19 units have enclosed patios. The modifications noted in this order were observed by the arbitrator during the onsite hearing. 2

3 a. Unit 6236 is owned by the association s current vice-president Ruby Coleman. It is a two-story unit located next to Respondent s unit. There is a screened enclosure on the unit s first story patio. The unit s second story balcony has screens installed on its perimeter, from the floor to the roof. b. Unit 6232 is owned by prior board member Bette Peterson. A sunroom constructed on a permanent concrete slab has been added to the back of the unit. The sunroom has a composite roof and insulated walls and electric service. This addition was approved by Petitioner August 15, c. Unit 6242 has installed a first-floor screened room and has screened-in its second floor balcony from the floor to the roof. d. Unit 6244 has installed glass panels on the perimeter of its balcony. 5. In 2005 Petitioner s board of directors established an Architectural Review Committee which was responsible for reviewing owner alteration requests. 6. Respondent s unit is two stories with a second story balcony located on the rear of the unit. 7. Respondent purchased her unit in July At the time, the unit was in disrepair and required significant renovation. 8. As part of the renovation project, Respondent replaced the windows on the front side of the unit with windows that opened horizontally. 2 These windows were inconsistent with the windows on the other units which opened vertically. Prior to the 2 The windows were broken at the time Respondent purchased the unit. The windows were broken by emergency personnel in order to extract the prior owner. 3

4 final hearing, Respondent replaced the new windows with windows that opened vertically. 9. When she purchased her unit, Respondent s unit contained two upstairs bedrooms. Each bedroom had a sliding glass door which opened onto a common balcony. The balcony contained a partition dividing it roughly in half, creating privacy for each bedroom. As part of the renovation, Respondent converted the two bedrooms into a single bedroom, by relocating an interior wall, removing one of the sliding glass doors filling in the space with a wall finished to match the exterior of the building, and removing the balcony partition. 10. The alterations are visible from the common elements. 11. This dispute produced an extensive exchange of correspondence between the parties: a. By letter dated July 17, 2007, Petitioner s property manager informed Respondent that she was violating the governing documents by installing windows without board approval. The letter requested that Respondent submit a request for window installation upon receipt of the letter. b. Respondent responded by submitting a written alteration request form dated July 21, Respondent sought approval for the replacement windows Respondent had installed on the front of her unit. Respondent acknowledged that the windows were horizontal and not vertical like the other windows. Respondent also sought approval for the balcony modifications. The request stated that during the remodeling of Respondent s unit, a wall was created that extended into the middle of the 4

5 right slider making the slider unusable. Therefore, the request states that the slider was removed and replaced with a wall which Respondent intended to cover with siding matching that on the building. The request further states that one large balcony has been created. c. By letter dated July 27, 2007, Petitioner s management company informed Respondent that she may be in violation of the governing documents due to making structural alterations without approval. The letter further stated that all such changes must be submitted to the board of directors for review and approval. Finally, the letter requested that Respondent submit her request by August 3, d. By letter dated August 1, 2007, Petitioner s attorney informed Respondent that she was in violation of the governing documents because she had installed nonconforming windows which slide horizontally instead of opening vertically deviating from the uniformity of the community. The letter further indicated that Respondent had violated the governing documents in that she had not submitted the balcony project to Petitioner s architectural review committee or board directors for approval. The letter also stated that Respondent had been informed by previous letters from Petitioner that the windows and the balcony project were considered structural alterations that had to be approved by Petitioner prior to any work commencing. e. By letter dated August 7, 2007, referencing Respondent s alteration request forms dated July 21, 2007, Dell Edwards, Petitioner s President, 5

6 informed Respondent that her window installation request and balcony modification request had not been approved by the architectural review committee and board of directors for the reasons outlined in the August 1, 2007, letter from Petitioner s attorney. f. By letter dated August 8, 2007, addressed to Petitioner s attorney, Respondent indicated her confusion regarding the approval process. g. By letter dated August 20, 2007, Petitioner s attorney responded to Petitioner s letter. The letter stated that the board was requesting access to Respondent s unit no later than August 31, 2007, in order to inspect the balcony alterations. The letter stated that after inspection, the board would determine during its September 26, 2007, meeting whether the alterations would be approved. The letter also clarified the Petitioner s objection to the windows Respondent had installed on the front her unit, noting that front windows for all other units opened vertically. h. By letter dated September 24, 2007, Respondent s attorney responded to the violations alleged by Petitioner. 12. At the request of the board of directors, Roberta Beulow and Myrtle Hylton inspected Respondent s unit. On August 17, 2007, they made an inspection of the exterior of the unit and on August 30, 2007, they inspected the interior. Ms. Beulow and Ms. Hylton presented the board with a written report. They confirmed that Respondent had converted the upstairs bedrooms into a single bedroom by relocating an interior wall and had removed the balcony partition. They also indicated that the sliding glass 6

7 door for the south bedroom leading onto the balcony had been removed and that the door frame had been left in place, but had been filled in with a solid wall. 13. Ultimately, board decided not to approve the modifications. 14. There was no evidence presented that the modifications structurally change the building. 15. Article 16(A) of the declaration of condominium, provides, in pertinent part, as follows: No alterations to any common elements or limited common elements, or any additions or improvements thereto, shall be made by any unit owner without the prior written approval of the Association. 16. Rule H(1) of Petitioner s rules and regulations provides as follows: Alterations: Unit owners or lessees shall make no structural alteration or other changes or additions to exterior walls, overhangs, roofs, balconies and limited common elements, which would be visible from the common elements. Everything shall be done to maintain a uniform appearance to all buildings 17. Rule H(5)(d) of Petitioner s rules and regulations provides: All proposed installations of protective devices must be submitted to the ARC Committee for recommendation to the Board of Directors for approval. 18. Article 6 of the declaration of condominium defines limited common elements to include patios, fences and balconies. 19. Article 3.D. of the declaration defines common elements to mean the portions of the condominium property not included within any unit as further defined in article 5 of the declaration. 20. Article 4.B. of the declaration, defines unit further, providing in pertinent part: 7

8 The lateral or perimetrical boundaries of any such condominium unit are the exterior surfaces of the interior perimeter or main walls, to include the drywall, windows and doors thereof, and vertical planes coincidental with the exterior surfaces of the interior perimeter or main walls thereof to intersect the upper and lower vertical boundary thereof and to intersect the other lateral or perimetrical boundaries of the condominium unit. Conclusions of Law Townhomes at Bonnie Bay Condominium is a condominium within the meaning of section , Florida Statutes. The undersigned has jurisdiction over the parties and subject matter of this dispute pursuant to section , Florida Statutes. Respondent, by her ownership of a unit at the condominium, is required to comply with all governing condominium documents. Petitioner contends that Respondent has violated article 16(A) of the declaration and rules H(1) and H(5)(d) of Petitioner s rules and regulations by installing windows on the front of her unit that do not open in the same manner as the windows installed on the front of other units. Prior to the final hearing, Respondent replaced the windows on her unit with conforming ones. Therefore, this issue is moot and should be dismissed. Petitioner also contends that Respondent has violated article 16(A) of the declaration and rules H(1) and H(5)(d) of Petitioner s rules and regulations by altering her unit s balcony. Respondent admits that she altered the balcony by removing the balcony partition and walling-in the space where sliding glass door used to be. It is unclear how this constitutes a violation of rule H(5)(d) which applies to installation of storm and burglary protective devices for windows and doors. Since the removal of the balcony partition alters the appearance of the limited common element balcony and common element building wall, this alteration is governed 8

9 by article 16(A) of the declaration and rule H(1). Clearly, Respondent may not make such modifications without the written approval from the board. It is undisputed that the board denied approval of the modifications. Therefore, Respondent has violated article 16(A) of the declaration and rule H(1) of the Association s rules and regulations. It is not as readily clear whether article 16(A) and rule H(1) are applicable to the enclosure of the sliding glass door. Article 16(A) is limited to modifications of the common elements or limited common elements. Rule H(1) applies to structural alteration or other changes or additions to exterior walls, overhangs, roofs, balconies and limited common elements. In accordance with articles 3.D. and 4.B. of the declaration, the sliding glass door is part of the unit. However, by removing the sliding glass door and walling-in the opening, Respondent has added the common element wall and the addition is visible from the common elements. Therefore, the alteration is subject to article 16 and rule H(1). It is not disputed that the Association denied Respondent permission to make the alterations to the balcony. Therefore, Respondent violated article 16 of the declaration and rule H(1) of the Association s rules and regulations. Respondent, in her answer, has raised the defense of selective enforcement. Respondent bears the burden of proving her affirmative defense. Sea Breeze South Apartments Condo., Inc. v. Beck, Arb. Case No , Final Order (May 17, 2002). In the instant case, it is clear that Petitioner has approved additions and alterations to the limited common element patios and porches of units. Petitioner acknowledges that it has limited such modifications to enclosure of balconies with screens or glass panels and the constructing of screen rooms and sunrooms on the 9

10 limited common elements behind units. Petitioner claims that it has established procedures and standards for the installation of sunrooms or screen enclosures. However, although arguably not necessary, Petitioner has failed to provide any written standards. Moreover, Petitioner s claim is not supported by the appearance of the rear of the condominium buildings since there is no uniformity in the alterations that were approved by Petitioner. Petitioner contends that the screen rooms and sunrooms approved by Petitioner are semi-permanent, may be removed as needed for building maintenance, and do not structurally alter the building, unlike Respondent s modifications which are permanent. The undersigned is not persuaded by this argument. The sunrooms approved by Petitioner are permanent structures. Such additions permanently change the appearance of the common elements and the building. Additionally, Petitioner presented no evidence that Respondent structurally changed the building. As stated by Rule H(1) of the rules and regulations, it is Petitioner s intent to maintain a uniform appearance to all buildings. An association s goal of maintaining the appearance of a condominium building is reasonably related to a lawful objective. However, such a policy may not be arbitrarily and selectively applied. See White Egret Condo., Inc. v. Franklin, 379 So. 2d 346 (Fla. 1976). Based upon the foregoing, the undersigned finds that Petitioner s refusal to approve Respondent s balcony modifications is arbitrary and capricious. Accordingly, Petitioner will not be granted any relief regarding this claim. It is ORDERED: 10

11 1. Petitioner s claim that Respondent installed non-conforming windows on the front of her unit is dismissed as moot. 2. Petitioner s request for relief based on the claim that Respondent improperly altered the rear balcony on her unit is denied. DONE AND ORDERED this 24 th day of September, 2008, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 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. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 24 th day of September, 2008: Shawn G. Brown, Esq. Lang & Brown, P.A. P.O. Box 7990 St. Petersburg, FL Gary P. Coors, Esq. Staack, Simms, & Hernandez, P.A. 900 Drew Street, Suite 1 Clearwater, FL James W. Earl, Arbitrator 11