STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Condominium Association of Lakeside Village, Inc. Petitioner, v. Case No. 2004-03-7514 Vuokko Defer, Respondent. / SUMMARY FINAL ORDER This summary final order is entered pursuant to Rule 61B-45.030, Florida Administrative Code, which requires the arbitrator to enter a summary order where there are no disputed issues of material fact. PROCEDURAL HISTORY On July 16, 2004, Condominium Association of Lakeside Village, Inc. (association) filed a petition for arbitration naming Vuokko Defer as the respondent. The petition alleges that the respondent has violated section C(1) of article XIV of the declaration of condominium by failing to perform maintenance and general cleaning to her unit following a water leak in her unit, which has resulted in a significant amount of mold accumulating on the interior surfaces. On August 23, 2004, the respondent filed an answer to the petition, in which she does not dispute the facts alleged in the petition. 1
CONCLUSIONS Section C(1) of article XIV of the declaration of condominium, requires that a unit owner maintain in good condition and repair, his unit and all interior surfaces within his unit, and the entire inside of the unit. The respondent does not dispute that she has failed to perform maintenance and general cleaning to her unit following a water leak in the unit, resulting in a significant amount of mold accumulating on the interior surfaces. Therefore, the undersigned finds that the respondent has failed to maintain the interior of her unit in violation of section C(1) of article XIV of the declaration of condominium. The respondent indicates that she has difficulty maintaining the unit because she lives in a foreign country (France) and due to her poor health. The undersigned recognizes the difficulties in managing property that are created by owning property in a country distant from where one resides and by health problems. However, such problems are not an excuse for non-compliance with the condominium documents as it is incumbent upon unit owners to seek appropriate assistance, as they deem necessary under such circumstances. The respondent also asserts as a defense that she inherited the unit from her father and that she was never given the governing documents. This defense fails because where a provision is contained in the condominium documents, which are recorded in the public records, a unit owner is on constructive notice of the documents. See Centre Court I. Condo Assoc., Inc. v. Kish, Arb. Case No. 00-1752, Partial Summary Final Order and Order Requiring Supplemental Information 2
(June 26, 2001)(unit owner s assertion that association should be estopped from enforcing the pet ban because the condominium documents that she received at the time she purchased her unit were incomplete and did not contain the relevant provision was rejected because the owner was on constructive notice of the recorded documents). Based upon the foregoing findings, the undersigned finds that the respondent has violated section C(1) of article XIV of the declaration of condominium by not properly maintaining the interior of her unit. The respondent has failed to raise any defenses that would prohibit enforcement of the declaration. It is therefore ORDERED: The relief requested by the petitioner is hereby GRANTED. Within 30 days of the date this order the respondent shall perform remediation and maintenance on her unit and clean her unit, including, but not limited to, mold removal. The respondent shall retain a professional mold remediation company to remove the mold approved by the association. If the respondent fails to retain a professional company within 30 days or this order and if the unit is not adequately cleaned and remediated within 120 days hereof, the association may retain such company itself, in which case the respondent shall be responsible for the costs thereof. The respondent shall at all times in the future comply with section C(1) of article XIV of the declaration of condominium. 3
DONE AND ORDERED this 30 th day of August 2004, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Right to Appeal As provided by section 718.1255, F.S., a party which is adversely affected by this final order may appeal by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. Attorney s Fees As provided by section 718.1255, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B-45.048, F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B-45.048, F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. 4
Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 30 th day of August, 2004. Theresa M. Lemme, Esq. St. John, Core & Lemme, P.A. 1601 Forum Place Suite 701 West Palm Beach, Florida 33401 Vuokko Defer 13 Rue Du Fond Des Haux 78320 Levis Saint Nom France James W. Earl, Arbitrator 5