STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION SABAL CHASE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 98-3846 LAURA NELLIE SUMMERS a/k/a LAURA NELLIE CHAIFETZ Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters the following order: This order is entered pursuant to Rule 61B-45.030, Florida Administrative Code, which provides that a summary final order may be entered if no disputed issues of material fact exist. In the instant case, petitioner alleges that respondent has installed an air conditioning line from the front door of her unit, alongside the building to a compressor which is on the association s common area. This is admitted by respondent in her answer. Article XII, Sections A, B, and C of the declaration provide, in part, as follows: A. The maintenance of the common elements shall be the responsibility of the Association. B. There shall be no material alteration or substantial additions to the common elements, except in a manner provided herein. 1
C. No unit owner shall make any alterations in the portions of the improvements of the condominium which are to be maintained by the Association... Article XXIV, Section E of the declaration provides, in part, that each unit owner shall: E. Make no alteration, decoration, repair, replacement or change of the common elements or to any outside or exterior portion of the building. The declaration provides no procedure for approval of material alterations or additions to the common elements. In such an instance, 75% of the total voting interests of the association must approve the alterations or additions, pursuant to Section 718.113(2), Florida Statutes. In her answer, respondent states that Article XII, Section B conflicts with Article XXIV, Section E of the declaration, since the former states that a material alteration is not permitted and the latter simply states that an alteration is not permitted. Respondent submits that this ambiguity should be construed against petitioner, since it is the preparer of the declaration. Respondent argues that she has not made any material alterations to the common elements because the air conditioning line can be totally hidden by flower boxes placed over it. Assuming for the sake of argument that respondent is correct in her contention that Article XII, Section B is the portion of the declaration which should apply in the instant case, whether a particular change to the common elements requires compliance with Section 718.113(2), Florida Statutes, will depend on the particular facts and circumstances of the case. The court in Sterling Village Condominium, Inc. v. 2
Breitenbach, 251 So. 2d 685 (Fla. 4th DCA 1971), had occasion to define materiality with reference to this portion of the statute. The court stated:...the pivotal issue to be resolved, then, is: were the additions or alterations substantial or material? Substantial is: belonging to substance; actually existing, real; not seeming or imaginary; not illusive; solid; true, veritable. [citation omitted]... Material is: that which is important; that which has influence or effect. [citation omitted]...we hold that as applied to buildings the term material alteration or addition means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance. [Id. at 687]. Emphasis added. The issue, then, is whether the addition of the air conditioning line coming out of respondent s door, over her patio and the common elements, and attaching to the compressor palpably or perceptively changes the form, shape, elements or specifications of the existing common elements in such a manner as to appreciably affect or influence their function, use, or appearance. Cases holding that particular changes to the common elements constitute material changes prohibited by statute except upon compliance with the provisions of section 718.113(2), Florida Statutes, are legion; cases finding particular changes insignificant or immaterial are scarce. In the instant case, the common elements have been changed in a way which affects its function or use, if not its appearance. Currently, the unit s patio and the 3
adjoining land provide the pathway for the new air conditioning line leading to the compressor. Respondent s argument that because the new air conditioning line is not visible, the alteration is not material, is without merit. See Celentano v. Reflections-On- The-River Association, Inc., Arb. Case No. 94-0162, Summary Final Order (December 16, 1994)(Installation of pool heater would result in material alteration of the common elements, thereby requiring compliance with section 718.113(2), and the declaration. By adding a pool heater, the pool s existing condition will be palpably and perceptively changed in such a manner as to appreciably affect and influence its function and use.) Respondent s interpretation of material alteration would inevitably lead to the conclusion that unit owners could materially alter the common elements as long as they hid the alteration. Unit owners would have free reign to alter the common elements, despite potentially disastrous results, as long as the alteration was concealed. Plumbing and electrical wiring within the condominium s walls could be altered, for example, if the wall was patched following the alteration. Such a result is untenable. See Environ Condo. II Association v. Friedland, Arb. Case No. 96-0228, Final Order (February 24, 1997)(Plumbing and wiring connections altered the common elements and were not part of the as built plans for the condominium, in violation of the condominium documents.) WHEREFORE, the relief sought by the association is GRANTED. Respondent shall remove the air conditioning line and restore the area to its original condition within thirty (30) days. Respondent shall in the future comply with the provisions of Article XII, Section B of the declaration. DONE AND ORDERED this 25th day of June, 1998, at Tallahassee, 4
Leon County, Florida. Donna La Plante, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1030 RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION 718.1255, FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY A PARTY WHO IS ADVERSELY AFFECTED 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 I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to: Helio De La Torre, Esq., Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A., 201 Alhambra Circle, Suite 1102, Coral Gables, FL, 33134, and Michelle Ashby Delancy, Esq., de la O, Marko and Wang, One Biscayne Tower, Suite 2600, 2 S. Biscayne Blvd., Miami, FL, 33131 on this 25th day of June, 1998. Donna La Plante, Arbitrator 5
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