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

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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 SPANISH TRACE CONDOMINIUM ASSOCIATION, INC. A Florida not-for-profit corporation Petitioner, v. Case No ASTRID BUTTARI, Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and issues this final order, as follows: This order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to enter a summary order in a dispute which involves no disputed issues of material fact. Spanish Trace Condominium Association, Inc. (petitioner or association) filed a petition for arbitration with the division on April 25, 1997, against Astrid Buttari (respondent or unit owner). The petition alleges that the documents require that all floor areas in each unit, with the exception of bathrooms, foyers and kitchens, be covered by wall-to-wall carpeting, and specifically prohibits ceramic tile from being used as a floor covering in any unit. According to the petition, the respondent has installed a tile floor in her unit. The respondent filed her answer on February 13, She admits that she installed tile in her second floor unit, but claims that she did so only after clearing it with 1

2 two Board Members present at the Welcoming Committee. Respondent admits that she had not read the Condominium Documents at the time she installed the ceramic tile in her unit. Respondent cannot complain that she was not advised of the tile restriction because the restriction is contained within the declaration of condominium and, as such, is a matter of public record. Le Club at Kendale Lakes Condominium Association, Inc. v. Ruiz, Arb. Case No , Summary Final Order (June 28, 1996). Respondent s argument that she was negligently informed that she could tile her unit also fails as an estoppel argument. Estoppel requires a representation as to a material fact, reasonable reliance on the representation, and a detrimental change in position caused by the representation. Enegren v. Marathon Country Club Condominium Association, Inc., 525 So. 2d 488 (Fla. 3rd DCA 1988). The doctrine of estoppel should be applied with great caution and should only be applied where to refuse its application would be tantamount to sanctioning a fraud. Pelican Island Property Owners Association, Inc. v. Murphy, 554 So. 2d 1179 (Fla. 2d DCA 1989). In the instant case, although the first and third elements may have been met, the second element surely has not. Respondent s reliance on the statement of the two board members was not reasonable. Respondent was on constructive notice of the tile prohibition and, admittedly, she should have read the declaration prior to tiling her unit. Estoppel, however, does not lie under this set of facts. The declaration contains no specific language which might be construed to permit the installation of tile in second floor units. It does state, however, that [r]easonable regulations concerning the use of the Condominium Property may be 2

3 made and amended from time to time by a majority of Directors... Conceivably, the respondent argues that the permission she received from the two board members at the Welcoming Committee meeting constitutes a regulation by the board permitting tile in the second floor units. In the instant case, however, estoppel does not lie, for a single director has no power to act in representative capacity for the corporation on matters for which a vote of the directors is required. Simon v. High Point of Delray West Condominium Association Section II, Inc., Arb. Case No , Summary Final Order (April 3, 1995). See also Villas at Eagles Point Condominium Association, Inc. v. Kahn, Arb. Case No , Arbitration Final Order (July 10, 1995)(estoppel not shown to apply where general partner of general partnership developer, who was also on the board of the association, verbally approved the installation of a patio deck in the common elements, where the documents did not give the developer the ability to unilaterally approve such changes, and where the association acting as a board did not approve the change). states: Article XVI, Section F of the declaration of condominium for the condominium Carpeting. All floor areas with the exception of bathroom, foyers and kitchens in every Unit on Floors other than on ground level must be covered by the Unit owner with wall-to-wall carpeting. Ceramic tile may not be used as a floor covering in any Unit. (Emphasis added). Respondent argues that the Declaration of Condominium is contradictory in that it states Ceramic tile may not be used as a floor covering in any unit, although tile was 3

4 installed by the builder in the bathrooms, kitchens, and foyers, and some first floor occupants have been allowed to tile other portions of their units. First, it is obvious that the Declaration of Condominium does not contradict the fact that the kitchens, foyers and bathrooms were tiled by the builder. Second, Article XVI, Section F of the declaration addresses unit owners on floors other than on ground level, and states that it is their responsibility to assure that carpeting is used in every area but the kitchen, foyer and bathroom; ergo, the second floor unit owner may not tile any area that is not the kitchen, foyer, or bathroom and must carpet all remaining areas. Respondent has violated Article XVI, Section F of the declaration by installing tile in a unit on other than ground level. A restriction contained in the declaration is considered to be a covenant running with the land and is clothed with a strong presumption of validity. The Pines of Boca Barwood Condominium Association, Inc. v. Cavouti, 605 So. 2d 984, 985 (Fla. 4th DCA 1992). The standard for review of a restriction contained in the declaration is whether it is wholly arbitrary, in violation of public policy or an individual s constitutional rights. Id. The purpose of the restriction is to reduce noise emananting from one unit to the unit below. The restriction is rationally related to the purpose sought to be obtained as it is clear that a floor covered with tile transmits more noise than a floor covered with other available floor coverings, such as wall-to-wall carpeting, linoleum or wood. Therefore, the restriction is not arbitrary. The provision does not violate public policy or the unit owner s constitutional rights, either. The association seeks an order requiring the respondent to remove the tile floor installation and to install carpeting over the areas of the unit where carpeting is required. 4

5 RELIEF AND REMEDY Within forty-five (45) days of the date of this order, Astrid Buttari shall remove the ceramic tile from the floors of her unit except the kitchen, bathrooms, and foyer, and shall install wall-to-wall carpeting over the areas of the unit where carpeting is required pursuant to Article XVI, Section F of the declaration of condominium. DONE AND ORDERED this 20th day of February, 1998, at Tallahassee, Leon County, Florida. Donna La Plante, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. CERTIFICATE OF MAILING 5

6 I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to: David H. Rogel, BECKER & POLIAKOFF, 5201 Blue Lagoon Drive, Suite 100, Miami, FL and Astrid Buttari, 8446 S.W. 113th Place, Miami, Florida on this the 20th day of February Donna La Plante, Arbitrator 6