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 MORTON WOLFENSON, Petitioner, v. Case No HUNTINGTON LAKES SECTION THREE ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER This order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to enter a summary order where there are no disputed issues of material fact. Morton Wolfenson (petitioner) filed a petition for arbitration against Huntington Lakes Section Three Association, Inc. (association) on December 11, The petition alleges that the association is resurfacing the deck of the pool, without seeking the approval of the unit owners, as required by the declaration of condominium. Petitioner also filed a motion for temporary injunctive relief. On January 30, 1998, the motion was denied on the grounds that the petitioner had failed to allege irreparable injury or to show a clear legal right to the relief requested. The association is an association comprised of owners in nine separate condominiums. The pool deck involved in the instant dispute is a part of the activity center area serving all nine condominiums. The area is governed by the Section Covenants Agreement, incorporated into the declaration by reference (Section IV, Definitions and Section VIII, Plan for

2 Development). The association has undertaken a project involving removing and replacing the expansion joint material on the concrete pool deck, followed by resurfacing the entire deck with a new layer of concrete and sealing it. The gist of the dispute is that the association is carrying out work which, in the opinion of the petitioner, is not necessary. According to the petition, the present deck is a sound concrete surface with no cracks, crazing or pitting. The petitioner concedes the need to remove and replace the expansion joint material, but he believes that resurfacing the deck, the more expensive part of the project, is unnecessary. The association argues that the deck is required to be resurfaced because cracks in the concrete have resulted in an uneven surface and the concrete is deteriorating and spalling 1 in places, placing the deck at risk of further degradation. Both parties submitted photographs and responded to the arbitrator s request for additional materials. The photographs show an older concrete surface that is chipped and cracked at its edges, stained, dotted with patches and with areas of deterioration. The petitioner argues that the deteriorating area is not more than a few square inches in area, that the cracks are small and that the patches are smooth with their edges tight against the pool deck. As the photographs do not incorporate a ruler or other size reference, it is impossible to determine the extent of the damage. However, assuming for the moment that resurfacing the deck is not necessary to smooth out uneven surfaces or remedy spalling, it is still needed to provide a smooth, attractive surface without cracks, patches or chipping. Pursuant to the declaration of condominium, the activity center area consists of 1 Spalling occurs when moisture invades concrete causing rust on structurally supportive rebar, which in turn causes the concrete to bubble and crumble from the interior rusting. 2

3 association property, rather than common elements. The section covenants agreement specifies how the costs of capital improvements as well as repair and maintenance shall be allocated to individual owners; however, neither the agreement nor the declaration of condominium speaks to the question of whether unit owners must approve of alterations or additions to the activity center area. Section (2), Florida Statutes, provides that there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration. If the declaration does not specify the procedure for approval of alterations or additions, 75 percent of the total voting interests of the association must approve the alterations or additions. In the instant case, since the declaration provides a method for making alterations to the common elements but does not speak to association property, which the property is, the procedure set out in the statute would apply, i.e., approval of 75 percent of the total voting interests would be required. However, where an alteration or addition is necessary to maintain or preserve the common elements, it is exempt from the requirement of unit owner approval. See Tiffany Plaza Condominium Association, Inc. v. Spencer, 416 So. 2d 823 (Fla. 2nd DCA 1982)(assuming construction of rock revetment was necessary to protect the common elements from damage, unit owners approval was unnecessary); Cottrell v. Thornton, 449 So. 2d 1291 (Fla. 2d DCA 1984)(assessment for restoration of a common elements canal system, roadway system, and swimming pool did not require an authorizing vote of the unit owners where the canals were filling in due to erosion, the pool floated up from its original foundation and began to crack, and the roadways had severe potholes); Ralph v. Envoy Point Condominium Association, Inc., 455 So. 2d 454 (Fla. 2d DCA 1984)(installation of vertical seawall did not require unit owner approval where it 3

4 was necessary to protect common elements; fact that it constituted a material alteration did not prevent board from taking action required to maintain common elements). In the instant case, there is no dispute that the expansion joint material must be removed and replaced. Without addressing the question of whether the subsequent resurfacing is required to achieve a smooth, level surface that will not be prone to further deterioration (i.e., no cracks, spalling or deterioration), it appears that the resurfacing is necessary to provide a visually pleasing, flawless surface, as certainly existed when the condominium was first created. Based on the foregoing, it is ORDERED: The petitioner s request for relief, an order requiring that the pool deck resurfacing is an improvement requiring the approval of the unit owners, is DENIED. DONE AND ORDERED this 22nd day of May 1998, at Tallahassee, Leon County, Florida. Patricia A. Draper, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida

5 RIGHT OF APPEAL In accordance wit h Section , Florida Statutes, a part y 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 forego ing was mailed by U.S. mail, postage prepaid, to Morton Wolfenson, Amberly Lane-Apt. 301, Delray Beach, FL and Keith F. Backer, Esq., Peninsula Plaza Suite 314, 2424 N. Federal Highway, Boca Raton, FL this the 22nd day of May Patricia A. Draper, Arbitrator 5