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

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 WALTER BORTKO, Petitioner, v. Case No CANTERBURY VILLAGE CONDOMINIUM ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER Upon review of the pleadings, the arbitrator enters this Order as follows: Unit owner Walter Bortko filed this petition for arbitration on September 12, 1997, naming Canterbury Village Condominium Association, Inc. ( association ) as respondent. The petition alleges that the association required him to remove a patio-type chair from the second floor landing adjacent to the front door of his unit, which he had placed in that location as an assistance to his elderly tenant. The association filed an answer to the petition on March 17, The sole issue to be resolved is whether the condominium documents prohibit the petitioner from maintaining a patio chair near the front door of his unit. The material facts are not in dispute. According to the petition for arbitration, the petitioner owns unit number K-203 in Canterbury Village. In order to assist his elderly tenant, he placed a white patio-type chair next to the front door of the unit, so that the tenant could sit down after climbing the stairs to the unit or place her bags down while

2 unlocking the front door. The petitioner asserts that the balcony/walkway area is a limited common element and he denies that he has violated the condominium documents by leaving the chair in that location. Two color photographs appended to the petition depict a railed balcony or walkway area leading to a single front door and a clean, white plastic or resin chair placed against the outside wall of the unit, between the front door and a window. It is obvious from the photographs that the walkway where the chair is placed leads to only the one unit (the petitioner s) and that the chair is not blocking the path to any unit. In its answer, the association argues, first, that the chair is in violation of the condominium documents because it is placed in a common area, not a limited common area. In support of its position, the association attaches an official drawing of a floor plan for a typical unit in Canterbury Village. The drawing depicts a staircase leading up to a walkway. If taken to the left, the walkway leads to one unit; if taken to the right, the walkway leads to another unit. On the drawing, the walkway is labeled access (walk/balcony). The association s second defense is that the petitioner has failed to name an indispensable party (the tenant) to the action. The arbitrator has previously ruled, by order dated March 2, 1998, that the tenant is not an indispensable party. Consequently, the association s second defense is stricken. Finally, the association argues that the petitioner has offered no evidence that his tenant has a disability which would require the association, under fair housing laws, to make a reasonable accommodation for her. 1 1 It is noted that the relief granted by this order is based upon a legal interpretation 2

3 It must first be determined whether, as a matter of law, the walkway/balcony is a part of the unit, a common element, or a limited common element. The following definitions from the declaration of condominium apply: Section 4.7: Common Elements means the portions of the condominium property not included in the units. Section 4.17: Limited Common Elements means those common elements which are reserved for the use of a certain condominium unit or units to the exclusion of other units. The right to such exclusive use shall pass with the unit on transfer, whether or not separately described, and cannot be separated from it. Section 5.2 B: Parimetrical Boundaries. The Parimetrical boundaries of the unit shall be the vertical planes of the unfinished interior surfaces of the walls bounding the unit, extended to their intersection with each other and with the upper and lower boundaries. Section 7.4: Limited Common Elements... The following common elements are hereby designated as potential limited common elements: * * * B. Porches. Any porch attached to and serving exclusively a unit shall be a limited common element. The unit owner shall be responsible for day-to-day cleaning and care, but all painting and maintenance shall be the responsibility of the Association and shall be a common expense... Based upon the foregoing, it is concluded that the provision addressing porches is a reference to the private lanai on the back side of a unit and that the walkway/balcony at the front entrance of a unit is a common element, rather than a limited common element or a part of the unit. of the condominium documents and not upon Federal Fair Housing laws. 3

4 The petitioner has been advised by the association that his maintenance of a patio chair on the walkway/balcony constitutes a violation of section 10.1B(4) of the declaration of condominium. 2 That section provides: (4) Common hallways, stairways and other common areas shall not be obstructed, littered, defaced or misused in any manner... Porches, walkways and stairways shall be used only for the purpose intended, and they shall not be used for hanging garments or other objects, for outdoor cooking, for cleaning of rugs or other household items, or for storage of bicycles or other [personal] property of unit owners. It is well recognized that covenants restraining the free use of property are to be strictly construed in favor of the grantee and ambiguity in restrictions must be resolved against the persons claiming enforcement. McKay v. Townson, 528 So.2d 977 (Fla. 2d DCA 1988), citing Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925). Reviewed in that light, the association s interpretation of the documents is not reasonable. According to the official floor plan submitted by the respondent, the area in question was designated as access (walk/balcony). The designation itself suggests a multi-purpose area. In addition, the photographs submitted by the petitioner show convincingly that the patio chair in no way obstructs the walkway/balcony when placed against the wall between the unit s door and window. The photographs further show that the chair is kept in a clean condition. The evidence submitted by the respondent, the drawing of a typical unit floor plan, confirms the fact that the chair, when placed next to the petitioner s front entrance, could 2 As the result of the association s interpretation of that provision of the declaration, the petitioner was assessed at least one $25 fine, pursuant to section 8.1 of the condominium bylaws. 4

5 not block anyone else s access to their own unit. Furthermore, the placement of a small patio chair on a walkway/balcony is not similar in nature to the other activities the declaration seeks to prohibit in that location (such as hanging laundry, grilling, and storing personal property). Taken in the context of section 10.1B(4), the placement of a single patio chair on the balcony area immediately adjacent to the petitioner s unit cannot be deemed a misuse of the area. It is, therefore, concluded that the petitioner s placement and maintenance of a patio chair next to the front entrance of his unit does not violate section 10.1B(4) of the declaration. Finally, in its motion to dismiss filed April 1, 1998, the respondent argues that the petition should be dismissed as moot since the petitioner has, in fact, removed the chair from the walkway/balcony. As mentioned previously, the petitioner removed the chair temporarily in response to association s threat of daily fines, and he seeks a declaration that the chair does not violate the condominium documents so that he may replace the chair without adverse consequence. The respondent s motion to dismiss is, therefore, denied. Pursuant to Rule 61B , Florida Administrative Code, the arbitrator may enter a summary final order if no disputed issues of material fact exist. Based on the foregoing, it is ORDERED: 1. The relief requested by the petitioner, an order declaring that his placement of a patio chair on the walkway/balcony does not violate the condominium documents, is GRANTED. DONE AND ORDERED this 14th day of May, 1998, at Tallahassee, Leon County, 5

6 Florida. Catherine Cowal, Arbitrator Dept. of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida

7 RIGHT OF APPEAL In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This 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 Walter Bortko, Southhampton Drive, Bonita Springs, Florida 34135; and to Tamela Eady Wiseman, Esq., 5121 Castello Drive, Suite 1, Naples, Florida 34103, this the 14th day of May, Catherine Cowal, Arbitrator 7