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 HOWARD FELDMAN and SHEILA FELDMAN Petitioners, v. Case No SUNSET HARBOUR CONDOMINIUM ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER Relevant Procedural History On December 18, 2015, petitioners filed a petition for arbitration against Sunset Harbour Condominium Association, Inc. (the Association). Petitioners own a unit in the Association and filed this petition alleging the board created a new landscaping design and completed it without the approval of the unit owners. Specifically, the petition alleges that two palm trees which were adjacent to Petitioners unit s balcony were removed by the Association and three palm trees were planted on the southwest corner of the building. 1 This action has allegedly negatively affected Petitioners view from the balcony of their unit because the trunks of the trees now look like a fence, their view of the water is obstructed, they can now see the sewer outflow pipes, they have to endure more traffic 1 It is unclear how two palm trees could leave stumps resembling a fence or how the water view could be obstructed since the water runs the length of the back of the building unless Petitioners never had a full view of the water in the first place or how the few palm fronds on the trees could have completely blocked

2 noise than before, they have lost the shade from the trees which they had previously enjoyed and the value of their unit was reduced considerably. 2 For relief, Petitioners are seeking to have an order issued requiring the Association to restore the two palm trees which were adjacent to their unit and to remove the three new palm trees located on the side of the building. On January 25, 2016, pursuant to an order requiring an answer dated December 30, 2015, the Association filed a motion to dismiss suggesting that the dispute between the parties is moot. On March 3, 2016, a case management conference was held and both parties attended. Rather than rule on the motion to dismiss, the undersigned is issuing this Summary Final Order instead, because the relevant and undisputed facts do not entitle Petitioners to relief. Findings of Facts 1. The Association is the governing body of the condominium with the obligation to operate the condominium on a day to day basis and to maintain its property. 2. Petitioners are unit owners in the condominium and are thereby members of the Association. They have owned their unit for 16 years. There are 19 voting interests in the Association. 3. The Association without prior unit owner approval removed two palm trees which were adjacent to Petitioners unit and relocated three new palms on the southwest corner of the building. the view of the outflow valve. Unfortunately, the photos supplied by Petitioners were not very elucidating, however, none of this affects the ruling in this arbitration. I 2

3 4. After the petition was filed, the Association sought and received written approval of the new landscaping design from the 18 remaining owners, thereby ratifying the board s original redesign of the palm trees. Conclusions of Law The arbitrator has jurisdiction over the parties and the subject matter of this arbitration pursuant to section (4), Florida Statutes. A Summary Final Order is appropriate in this matter pursuant to 61B , Florida Administrative Code, because the petition presents no issues of disputed material facts which entitle Petitioners to the relief they requested. Landscaping decisions by an Association are not generally considered material alterations and therefore do not need unit owner approval for design changes. Simkin v. Nine Island Avenue Condominium Association, Inc., Arb. Case No , Final Order (May 1, 2014). Board decisions regarding what shrubbery to plant or how to replace existing shrubs particularly implicate the business judgment decision of the board and rarely grow to the dimensions necessary to implicate the provisions of the documents or statute regarding material alterations to the common elements. Mueller v. La Renaissance Condominium Association, Inc., Arb. Case No , Final Order (February 23, 1998)(routine maintenance of the common elements is within the discretion of the board, including the planting of trees, and is presumed correct absent a showing of mismanagement, fraud, or breach of trust); 3 Girsch v. Whisper Walk Section 3 Mueller, infra., speculates that on occasion, as where a board arbitrarily determines to radically remove or change the use of the landscaping adorning the common elements, it is possible that a material alteration may result and that a vote of the owners may be required. However, the arbitrator in Mueller, found no such circumstances in its facts and neither does the undersigned based on the facts presented here. 3

4 E Ass'n, Inc., Arb. Case No , Order Dismissing Arbitration Petition (November 26, 1997). 4 Petitioners provided photographs of their unit pre and post the removal of the two palms nearest their unit. The landscaping is very modest and tasteful and the movement of the palm trees had no effect on the aesthetics of the building. The redesign of the grounds was minor and Petitioners concern about their view is inconsequential. After all, no one is entitled to a particular view from their unit. Engel v. Seascape Condominium Association of Tarppon Springs, Inc., Arb. Case No , Summary Final Order (December 23, 2005); and Mueller, supra., citing Fountainebleau Hotel Corporation v. Forty-Five Twenty-Five, Inc., 114 So.2d 357 (Fla. 3rd DCA 1959) cert. denied, 117 So.2d 842 (Fla. 1960)(Florida does not recognize an easement of view (air and light) absent some statutory or contractual obligation. Since the unit owners were unable to establish a right to a view, the arbitrator dismissed the case for lack of jurisdiction under Section ). Accordingly, for the reasons set forth above, Petitioners prayer for relief is DENIED. DONE AND ORDERED this 24 th day of March, 2016, at Tallahassee, Leon County, 4 Regarding the ratification issue, Atkins v. the Breakers Condominium Association of Melbourne Beach, Inc., Arb. Case No , Final Order on Motion for Attorney s Fees (December 3, 2002), found that it was acceptable to seek and procure written ratification of a board s actions of constructing a second story, by 75% of the voting interests after being served with a petition for arbitration. 4

5 Florida. Leah A. Simms, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: Fax: Trial de novo 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. Attorney s Fees 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 , Florida Administrative Code. Certificate of Service I hereby certify that a true and correct copy of the foregoing Summary Final Order has been sent by U.S. Mail to the following persons on this 24 th day of March, 2016: Joseph N. Perlman, Esq Belcher Road S. Suite B Largo, FL Attorney for Petitioners Joseph Riopelle, Esq. Boyd Richards Parker & Colonelli, P.L. 400 N. Ashley Drive, Ste Tampa, FL Attorney for Respondent Leah A. Simms, Arbitrator 5