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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Casa Sevilla Condominium Association, Inc., Petitioner, v. Case No David J. Pirola and Scott Michaels, Respondents. / SUMMARY FINAL ORDER Statement of the Issue This case presents two issues: 1. Whether the Association may require the owner of a unit to request approval of a two year old conveyance of an interest in the unit to a co-owner who was previously approved by the Association; 2. Whether Respondents improperly altered common elements of the condominium. Procedural Matters On October 9, 2007, the Association filed a Petition for Arbitration that included matters not within the arbitrator s jurisdiction. On October 17, 2007, an Order dismissed the original Petition with leave to amend. An Amended Petition filed on November 29, 2007, resulted in an Order Requiring Answer. Respondents filed an Answer with attachments on January 15, The pleadings establish sufficient undisputed facts to allow for entry of a Summary Final Order. Findings of Fact 1. Petitioner is the association responsible for management of Casa 1

2 Sevilla Condominium. 2. Respondents own Unit 101 of Casa Sevilla Condominium. 3. Respondents acquired Unit 101 in On August 11, 2005, the Association, by its President and Secretary/Treasurer executed an Approval of Transfer from Vickie Williams to Respondents, David Pirola and Scott Michaels. 4. On October 13, 2005, a Warranty Deed for Unit 101, from Vicki Williams to David J. Pirola and the Approval of Transfer were recorded in the Official Records of Broward County. 5. On December 23, 2005, a Quit Claim Deed for unit 101, from David J. Pirola, as grantor, to Scott Michaels and David J. Pirola, as grantees, was recorded in the Official Records of Broward County. 6. In July 2007, Respondents began to live in Unit 101 full time. At that time they brought some lawn furniture and plantings which they wished to donate to the association. They believed these were accepted by the president of the Association. 7. Respondent Michaels planted two Areca palms and a bamboo plant in front of the condominium. Additional potted plants were also placed in the common elements. Respondents did fertilize and hand water these plants in August In September the board caused the lawn furniture to be disposed of and directed a landscaping contractor to modify the plantings to either discard or utilize plantings at the discretion of the landscaper. 9. On September 7, 2007, Petitioner sent Respondents a pre-arbitration notice which demanded that Respondents cease and desist from modifying the 2

3 landscaping or other portions of the common property without authority of the board. The notice also demanded that Respondents re-transfer title of the unit exclusively to David Pirola. 10. On September 23, 2007, Respondent Michaels cleaned up the laundry room and, in the process, relocated a shelf that had fallen down to an area near a dumpster. This activity occurred after the pre-arbitration letter had been sent. 11. On September 25, 2007, the Association published a Notice to All Unit Owners and Residents including a number of provisions. First, hand watering of plants is allowed only by members of the official landscaping committee only, and all hosepipes were locked down. Next, no alterations or maintenance of landscaping is permitted by anyone other than the official landscaping committee or its contractor; unauthorized plantings will be removed. Additionally, air fresheners are prohibited in the laundry room. Conclusions of Law The Division has jurisdiction over this matter pursuant to Section , Florida Statutes, to determine the authority of the board of directors to require the owner to take action involving the owner s unit or the appurtenances thereto; or to alter or add to a common area or element. Section (5), F.S., authorizes a declaration of condominium to include restrictions concerning transfer of a units permitted by law with reference to real property. Florida appellate courts have upheld the right of condominiums to require approval of the board of directors for any sale, if the condominium stands ready to provide an alternative buyer or purchase directly from the seller on the same terms. 3

4 Lyons v. King, 397 So. 2d 964 (Fla. 4th DCA 1981) (Purchasers who intended to use unit as rental property could be rejected for that reason). The requirement of board approval found in Article 10 of Petitioner s Declaration is valid. Article 10.1 of Petitioner s declaration of Condominium explains the purpose as to maintain a community of congenial residents who are financially responsible and thus protect the value of the units. Transfer of Unit 101 to both named respondents was authorized in August Petitioner now attempts to complain that it did not authorize the particular form of instruments which accomplished that transfer, but only a direct deed from the former owner to Respondents jointly. This concern is simply not justified by the purpose of the approval requirement. More importantly, the Declaration also provides, in Article 10.9, that failure of the Association to object within ninety days to a transfer without approval shall constitute a waiver by the Association. In this case, Respondents have paid quarterly dues for two years, so waiver must be found based on the letter and intent of Article 10 of Petitioner s Declaration of Condominium. The only other relief the Petition requests is an order to cease and desist all unauthorized maintenance, repair, or replacement of any item on or in the common element. Based on the limited violations of the pre-arbitration letter and the September 25, 2007 general notice, in the absence of specific allegations of continuing violations, it must be concluded that the request for a cease and desist order has become moot. The allegations with respect to cleaning the laundry room cannot be 4

5 addressed in this arbitration case because they occurred after the pre-arbitration notice. Section (4), Florida Statutes, requires that those issues be dismissed without prejudice. Accordingly, it is ORDERED: 1. Petitioner cannot require Respondents to seek additional approval for acquisition of title to Unit 101 of the condominium; 2. Disputes concerning cleaning of the laundry room and disposal of items from the laundry room are dismissed without prejudice; 3. All other requests for relief presented by the Amended Petition for Arbitration are denied; DONE AND ORDERED this 28th day of January, 2008, at Tallahassee, Leon County, Florida. Bruce A. Campbell, 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. 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 25th day of January, 2008: Rachel Frydman, Esq. Katzman & Korr 1501 NW 49th Street, Suite 202 Ft. Lauderdale, FL David J. Pirola 815 Northeast 28th Street, #101 Wilton Manors, FL Scott Michaels 815 Northeast 28th Street, #101 Wilton Manors, FL Bruce A. Campbell, Arbitrator 6