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 Quail Run of Sunrise Unit Three Condominium Association, Inc., Petitioner, v. Case No Genis Castellanos and Clodromo Castellanos, Respondents. / SUMMARY FINAL ORDER Statement of the Issue The issue in this case is whether Respondents must remove the unapproved enclosure of the patio of their unit, and must seek approval before such alteration, replacement or change to the exterior of the condominium. Procedural History Petitioner, Quail Run of Sunrise Unit Three Condominium Association, Inc., filed a Petition for Arbitration against Respondents, Genis Castellanos and Clodromo Castellanos, on August 18, An Order Requiring Answer was entered on August 27, After the arbitrator granted an extension of time, an Answer was filed on September 26, The Answer included affirmative defenses of selective enforcement, necessity and estoppel. Petitioner moved to strike those defenses as lacking specificity, so Respondents requested additional time to obtain facts supporting the defenses. Because the parties indicated an intent to try to settle the dispute, an 1

2 Order Holding Case in Abeyance was entered on October 23, The period of abeyance was extended to December 31, 2008 following a joint status report. Respondent moved for permission, and was allowed, to file an Amended Answer and Affirmative Defenses on January 13, The Amended Affirmative Defenses filed January 13, 2009, included 19 color photographs. After additional amendment of the Answer and Affirmative Defenses, on February 2, 2009, Petitioner filed a Reply. On February 9, 2009, an order was entered which required Petitioner to admit or deny the authenticity of the 19 photographs previously filed, and allowed Petitioner to file photographs, and to file documents showing approval of modification of patios and balconies of other units. The February 9, 2009 Order also allowed each party until March 10, 2009, to submit arguments as to the issue of selective enforcement. On March 4, 2009, Petitioner filed a Supplemental Reply to Respondents Selective Enforcement Defense, which admitted the authenticity of the photographs. Petitioner filed documents on March 6 and March 9, 2009, consisting of requests for approvals from an architectural review committee, and approvals. On March 13, 2009, Petitioner submitted a written argument as to the selective enforcement defense. Findings of Fact 1. Petitioner is the entity responsible for management of Quail Run of Sunrise Unit Three Condominium, in Sunrise, Florida. 2. Respondents are the owners of Unit 107 of the condominium. 3. Quail Run of Sunrise Three Condominium consists of five four-story residential apartment buildings containing 96 Apartments. The buildings are arranged in a rough U with a swimming pool and common area in the center. Respondents 2

3 Apartment is on the first floor at the bottom of the U, with its rear patio facing a common area which includes the pool. 4. Article XV A.3 of the Declaration of Condominium of Quail Run of Sunrise Unit Three Condominium provides: No Apartment Owner shall paint, refurbish, stain, alter, decorate, repair, replace or change the Common Elements or any outside or exterior portion or surfaces of Condominium Property, including without limitation, balconies, patios, doors, and windows; place any awnings, screening or hurricane shutters on or in any Apartment; or install on any portion of the Condominium Property any exterior lighting, fixture, mailbox, screen door or other similar item without first obtaining written approval thereof by the Board, which approval the Board may withhold in its sole and absolute discretion. The Board shall not grant any approval contemplated by this Subparagraph if in its opinion the effect of any of the items mentioned herein will be unsightly as to the exterior or interior of any part of the Condominium Property. 5. At some time before March 2008, Respondents altered the rear patio of their unit by installing a concrete block wall across the entire lower (roughly 30 to 36 ) portion of the outside edge of the patio, with four rows of windows above the wall to the ceiling of the patio. 6. Respondents did not seek approval from the Board before performing the alteration of the patio. 7. Photographs filed by Respondents show that most of the first-floor patios are enclosed with screening and screen doors, with some having been modified with weather-proof windows above lower (roughly 30 to 36 ) panels and a weather-proof door. The lower panels on other patios appear to be thin aluminum or plastic component panels. All of the other patio enclosures have a door that opens to the common area including the pool. 3

4 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. Rule 61B , Florida Administrative Code, provides that if no disputed issues of material fact exist, the arbitrator shall issue a summary final order. Respondents allege that Petitioner altered the rainwater drainage on their building in such a way that their unit suffered damage which they needed to avoid by installing the enclosure at issue. Petitioner denies the facts of this allegation. For the reasons set forth below, it is concluded that this disputed allegation does not create an issue of material fact. Respondents allege that the drainage problem was brought to the association s attention, but they refused to remedy the problem as is their duty, which created an emergency. Respondents do not allege that they submitted proposed cures for the alleged drainage problem. It must be concluded that Respondents, before altering their unit, did not make any proposal which the association rejected. Respondents contention that the emergency deprived them of time to seek approval is inconsistent with the time that must be attributed to the design and construction of a concrete wall with permanent windows to fit their patio. Inconsistently, Respondents claim estoppel because the construction was open and obvious so the association should have stopped it before it was completed. Respondents affirmative defenses, as alleged, do not create an issue whether the association acted unfairly or with unclean hands. 4

5 Respondents cannot resort to self help remedies to justify violations of governing documents. Schooner Cove Condominium Ass n., Inc. v. Meda, Arb. Case No , Summary Final Order (March 5, 2003) (rejecting claim that alterations to boat lift and dock were required because acts of association had impaired use of dock); Inverness at Golfview Condominium Ass n., Inc. v. Dunlop, Arb. Case No , Summary Final Order (November 13, 2006) (unit owner not entitled to install vinyl windows on lanai to shield it from golf course sprinklers). The photographs provided by Respondents demonstrate that they have constructed a patio enclosure different from any other enclosure in the condominium, particularly with respect to the concrete block and the lack of a door out to the pool-side common area. Although it is true that the association has not enforced a strict uniformity of appearance of enclosures of patios and balconies, Respondents enclosure takes the alteration much further with respect to design and function. The defense of selective enforcement will be rejected when a challenged structural alteration is not comparable to alterations made by other unit owners, despite a lack of uniform appearance throughout the condominium. Schmidt v. Sherrill, 442 So. 2d 963 (Fla. 4th DCA 1984)(enclosure of balcony); Bayside Terraces Owners Association, Inc. v. Cusumono, Arb. Case No , Summary Final Order (October 22, 1997) (enclosure of terrace). Based on the foregoing, it is ORDERED: 1. That Respondents shall, within sixty (60) days of this Order, remove and the unapproved patio enclosure and return it to its original condition with a door. 2. That Respondents shall obtain written approval from the association 5

6 before making any alteration of the exterior of the condominium building. DONE AND ORDERED this 23rd day of March, 2009, at Tallahassee, Leon County, Florida. Bruce A. Campbell Arbitrator Dept. of Bus. & Prof. Reg. 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 within 30 days, 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 within 45 days, in accordance with Rule 61B , F.A.C Certificate of Service I hereby certify that a true and correct copy of the foregoing final order on default has been sent by U.S. Mail to the following persons on this 23rd day of March, 2009: Paul Milberg, Esq. Katzman & Garfinkel 1509 N.W. 49th Street Second Floor Ft. Lauderdale, FL F. Blane Carneal, Esq. P.O. Box 747 Orange Park, FL Bruce A. Campbell 6