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 TRIO ENGLEWOOD, INC., Petitioner, v. Case No FANTASY ISLAND CONDOMINIUM ASSOCIATION, INC., Respondent. / NOTICE OF COMMUNICATION, ORDER ON MOTION FOR SUMMARY DISPOSITION, ORDER ACKNOWLEDGING SUBSTITUTION OF COUNSEL, ORDER ACCEPTING AMENDED PETITION, AND ORDER REQUIRING ANSWER On April 14, 1999, Barbara Levin, an attorney with the firm representing the unit owner/petitioner, contacted the arbitrator by telephone to inquire regarding the status of the case. The arbitrator responded that an order would be issued within the next several days. This communication is placed on the record pursuant to Rule 61B , Florida Administrative Code. Trio Englewood, Inc., a unit owner, filed a petition for arbitration naming Fantasy Island Condominium Association, Inc. (the association) as respondent. The association filed an answer to the petition and a motion for summary disposition. Subsequently, the unit owner simultaneously filed a stipulation for substitution of representation, a motion for leave to amend its petition, an amended petition, and a response to, and memorandum of law in opposition to, the association s motion for summary disposition. 1

2 The dispute in this case arose because the board of directors, on July 24, 1998, voted four to one to remove two Norfolk Island Pine trees. The sole dissenting vote was cast by Cora de Jonge. In addition to being a board member, Ms. de Jonge is secretary of Trio Englewood, Inc., the unit owner/petitioner, which owns five units in the condominium. The original petition for arbitration, together with supplemental information supplied in response to the arbitrator s order, requested as relief that the arbitrator order the board to keep the trees, or to obtain approval of two thirds of the unit owners for the trees removal, since, according to the petition, this would be a material alteration of the common elements 1. The association, in its motion for summary disposition, argues that the board s decision to remove the trees falls within its business judgment in carrying out its duties to maintain, repair, replace and protect the common elements, and the arbitrator should not substitute his judgment for that of the board. The arbitrator acknowledges that, in general, routine decisions regarding maintenance of common element landscaping should be left to the discretion of the board of directors. In such instances, petitions filed by unit owners contesting the manner or degree of such maintenance raise disputes which are inappropriate for intervention by the arbitrator. See, e.g., Raska v. The Fountains of Ponte Vedra, Inc., Arb. Case No , Summary Final Order (Dec. 23, 1994) (decision by board to remove shrubs and plant shrubs in other areas fell within the board s duty to maintain the common elements; therefore, no unit owner vote was required); Lipton v. Martinique Village IIB Condo. Assoc., Inc., Arb. Case No , Final Order Dismissing Petition (Aug. 29, 1994) (where unit owners contended that the board s failure to prune a tree affected the owner s view, board s action was not an alteration of the common elements and not 1 Article XIX of the declaration of condominium requires a vote of two thirds of the unit owners for substantial and material alterations to the common elements. 2

3 within the jurisdiction of the arbitrator; in addition, the board s decisions in maintaining the common elements will be presumed correct and not overruled by a court absent a showing of mismanagement, fraud or breach of trust). In Girsch v. Whisper Walk Section E Assoc., Inc., Arb. Case No , Order Dismissing Arbitration Petition (Nov. 26, 1997), the arbitrator held that the choice of what shrubbery to plant or how to replace existing shrubs was a business judgment decision of the board; therefore, the petition seeking a unit owner vote was dismissed for failure to state a valid claim for relief. The arbitrator explained his rationale as follows: To permit the arbitrator to substitute his judgment for the board in this range of business decisions would be to add great instability to the presumption of normalcy attending ordinary day-to-day decisions, and the arbitrator has no proper role in adjudging whether hibiscus is preferable to ficus, and similar decisions. The arbitrator in the Girsch case noted in dicta, however: On occasion, as where a board arbitrarily determines to radically remove or change the use of the landscaping adorning the common elements, it is possible that a material alteration may result and that a vote of the owners may be required. In the present case, the unit owner supplied photographs of the Norfolk Island Pine trees in question (see photograph attached). These suggest that the two very tall, conical trees are, in setting and type, distinct from the other landscaping, and thus may be sufficiently significant features of the landscape that their removal would constitute a material alteration of the common elements. In Stein v. Water Glades Property Owners Association, Arb. Case No , Order Dismissing Petition (March 11, 1994), the arbitrator noted that, When a tree is removed, the essential nature of the common elements is changed, which in turn may constitute an alteration of those common elements (whether material or not will turn on the facts in a particular case). In the present case, where there is evidence suggesting that the removal of the trees would constitute a material alteration, the arbitrator cannot hold as a matter of law that the 3

4 original petition fails to state a cause of action because it requires the arbitrator to substitute his judgment for that of the board regarding routine maintenance. The association further argues that, even if the removal of the trees were to be considered a material alteration, it can still exercise its best judgment without seeking a unit owner vote, citing Tiffany Plaza Condominium Association, Inc. v. Spencer, 416 So.2d 823 (2d DCA Fla. 1982) and Ralph v. Envoy Point Condominium Association, Inc., 455 So.2d 454 (2d DCA Fla. 1984). Therefore, the association argues, it has discretion under the business judgment rule concerning its maintenance decision, which the arbitrator should not overrule. In the view of the arbitrator, the authority cited by the association is insufficient to require summary disposition in the association s favor. In Tiffany Plaza the issue was whether unit owner approval was necessary for the construction of a revetment to protect the beach from erosion damage. No unit owner vote would be necessary if the work was necessary to protect the common element beach. The appellate court remanded, noting that it might be necessary for the trial court to take evidence on the necessity for the revetment. In Ralph, the court held that, where an extension to the seawall was necessary to protect the common elements from storm damage, unit owner approval was not required. In the present case, the unit owner included in its supplement to the original petition a letter from a state certified arborist, averring that the trees can be left as they are, healthy and strong. The association, on the other hand, asserts in its answer that its proposal to remove the trees was to eliminate present and future danger to the structures. Because there appears to be a dispute as to the imminence of danger posed by these two trees, as opposed to any of the other trees on the property, there arises a question as to whether the board s action was necessary to protect the common elements. Where disputed issues of material fact exist, summary disposition is not appropriate. See, Cottrell v. Thornton, 4

5 449 So.2d 1291 (Fla. 2d DCA 1984) (whether pool, canal and roadway repairs were necessary, and therefore did not require a unit owner vote, was a question of fact for the trial court). Based upon the foregoing, it is ORDERED: 1. The substitution of Abel, Band, Russell, Collier, Pitchford & Gordon, Chartered, as counsel for the unit owner is acknowledged by the arbitrator. Florida. 3. The association s motion for summary disposition is DENIED. 2. The unit owner s motion to amend its petition is GRANTED. 4. The association shall file its answer to the amended petition no later than May 6, DONE AND ORDERED this 16th day of April, 1999, at Tallahassee, Leon County, Copies mailed to: Saralyn Abel, Esq. Abel, Band, Russell, Collier, Pitchford & Gordon, Chartered P.O. Box Sarasota, FL Attorney for Petitioner Robert L. Moore, Esq. Kanetsky, Moore & DeBoer, P.A. P.O. Box 1767 Venice, FL Attorney for Respondent Tyler Powell, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida