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 GREENSWARD VILLAGE ONE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No JENNIFER A. WERBY, Respondent. / SUMMARY FINAL ORDER On August 7, 2013, Greensward Village One Condominium Association, Inc. (the Association) filed a petition for non-binding arbitration naming Jennifer A. Werby as Respondent. The petition alleges that Respondent had violated the Declaration of Condominium by placing landscape stones on her unit s balcony. On October 17, 2013, Respondent filed an answer. On November 5, 2013, a case management conference was held. On November 19, 2013, the Association filed a reply to Respondent s Answer. On November 20, 2013, Respondent filed a response to the Association s reply. Findings of Fact 1. Greensward Village One Condominium Association, Inc. is the corporate entity responsible for the operation of Greensward Village One, a condominium. 2. Respondent is an owner of a unit in Greensward Village One Condominium. 1

2 3. Article II, Section 6, of the Declaration of Condominium states in pertinent part: No changes, alterations, or improvements may be made to the individual apartments which will affect the exterior structure or appearance of the building, unless written consent of the Association is obtained. 4. Respondent s balcony is part of her unit pursuant to the Declaration. 5. The parties agree that in 2007, Respondent, without first obtaining written consent from the Association, placed bamboo around the railing of her balcony which screens the balcony from view. The Association admits that it is barred by the statute of limitations from pursuing removal of the bamboo screening. 6. Respondent has also placed outdoor carpeting on the deck of the balcony. Around the perimeter of the carpet, Respondent has place hundreds of small landscaping stones. Respondent did not obtain permission from the Association before placing either the carpet or the landscaping stones. 7. Respondent states in an affidavit that she installed the landscaping stones and carpet in Susan Lubin, another unit owner in Respondent s building, states in an affidavit that Respondent s landscaping stones and carpet have been in place since The Association alleges that since the carpet and the landscaping stones were screened from view by the bamboo screening, it only recently discovered them when performing an inspection of the gutters in January

3 10. The Association submitted an unsworn letter of a roofing consultant that the condition of Respondent s balcony violates unidentified state and local building codes. Conclusions of Law The Division has jurisdiction over this matter pursuant to Section , Florida Statutes. Because there is no issue of material fact in dispute after the filings provided to date by the parties, this case is appropriate for summary disposition pursuant to Rule 61B , Florida Administrative Code. Respondent alleges that the petition is barred because the Association failed to take any action to timely institute legal proceedings, as set forth in Section 95.11(2)(b), Florida Statutes. In considering the defense of the statute of limitations, the period begins to run when the action may be brought. See Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579 (Fla. 5th DCA 2003)(Unit owner alleged condominium association failed to enforce the declaration against five unit owners who erected screen enclosures in violation of the documents. Trial court required removal of two of the five enclosures based upon the five year statute of limitations. Appellate court found either one year or five year limitation period could apply, but court applied longer five year period concluding that when there is a reasonable question as to which limitation period should apply, resolution should be in favor of longer limitation period.). Therefore, the applicable limitations period is five years. Respondent has provided her own affidavit and an affidavit of another unit owner that landscaping stones and carpet have been in place since The Association alleges that it did not discover the alleged violation because it was blocked from view by the bamboo screening. The Association alleges that the bamboo screening also is a 3

4 violation of the Declaration but admits that the statute of limitations does apply regarding that violation. Before a claim accrues for purposes of the statute of limitations, a claimant must be aware of his or her right of action. Pawley v. Brickell Bay Tower Condo. Ass n, Inc., Arb. Case No , Summary Final Order (August 12, 2004). The period for the statute of limitations begins to run when the facts giving rise to the cause of action were discovered or should have been discovered through the exercise of due diligence. Id. If the Association had exercised due diligence and enforced the provisions of the Declaration regarding the bamboo screening, it would have discovered the full extent of Respondent s alterations to her balcony which included the landscaping stones and carpet. 1 Therefore, this entire action is barred by the statute of limitations. As such, it is unnecessary to determine whether placing landscaping stones and carpet on Respondent s balcony is an actual violation of the Declaration. Regarding the Association s claim that the landscaping stones and carpet violate state and local building codes, the arbitrator does not have jurisdiction over the enforcement of those codes. If there is a building code violation, the local building official is responsible for determining the violation and any steps necessary to obtain compliance. Son v. The Gardens of Key Biscayne-Alhabmbra Condo. Ass n, Inc., Arb. Case No , Summary Final Order (June 13, 1995)(the arbitrator declined jurisdiction on a petition for mandatory non-binding arbitration seeking enforcement of the South Florida 1 The Association alleges that the bamboo screening may cause a danger to the common elements, therefore pursuant to Section (5), Florida Statutes, the Association has had a right to access the unit for inspection since

5 Building Code with respect to their desire to install a stairway from their unit to the roof of the condominium). Based upon the foregoing, it is ORDERED: The Association s request for relief is DENIED. DONE AND ORDERED this 22nd day of November, 2013, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850) 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 Fla. Admin. Code R. 61B [This space left intentionally blank, a Certificate of Service follows on the next page]. 5

6 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 22nd day of November, 2013: James N. Krivok, Esq. Dicker, Krivok & Stoloff, P.A Australian Ave. South, Suite 400 West Palm Beach, FL Attorney for Petitioner Jennifer A. Werby 730 Greensward Court Unit J208 Delray Beach, FL Respondent Terri Leigh Jones, Arbitrator 6