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 EDWIN L. STANLEY, JR. and SANDRA D. STANLEY, Petitioners, v. Case Nos SEA SHORE ESTATES ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER This order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to enter a summary order where no issues of material fact remain in dispute. The material facts that are agreed to by both parties are sufficient to render a final order on these matters resolving the disputes set out in the petitions. PROCEDURAL HISTORY On March 21, 2003, Dr. Edwin L. Stanley, Jr. and Sandra D. Stanley (Stanleys) filed a petition for arbitration naming Sea Shore Estates Association, Inc. as respondent (Association). In their petition the Stanleys allege that the Association has altered the common element balconies and has improperly assessed each unit owner for the costs of these alterations, without seeking a unit owner vote, in violation of Article XII, of the declaration of condominium. The 1

2 Stanleys allege in their petition that due to Dr. Stanley s present medical condition, work on the balcony for their unit should not take place. The Stanleys further allege that due to the manner in which the Association has proceeded with the balcony alterations their unit has been diminished in value. The Stanleys seek the entry of an order requiring that the Association 1) not make any alterations to the Stanleys balcony during Dr. Stanley s lifetime, 2) complete the balcony project within a reasonable time, 3) award the Stanleys the diminution of the value of their unit 1, 4) award damages to the Stanleys for emotion distress, and 5) refund the Stanleys the special assessment levied by the Association to alter the balconies. The Stanleys further allege that the association has denied them timely access to the official records of the association, in violation of Section (12), Florida Statutes. On May 12, 2003, the Association filed a petition for arbitration naming the Stanleys as respondents. The petition alleges that the Stanleys have denied the association access to their unit so that the association can maintain and repair the common element balcony serving the unit. These matters have been consolidated and will be addressed together in this order. ISSUES PRESENTED 1. Whether the replacement of the balcony constitutes a material alteration or substantial addition to the common elements of the condominium requiring 1 The arbitrator finds it incongruous that the Stanleys argue in one count of their petition that the association should not be allowed to repair the balcony and argue in another that they should be awarded damages for the diminution in value to their unit because the project has not been completed. 2

3 compliance with the Condominium Act and/or the provisions of the declaration of condominium. 2. Whether or not the association was required to obtain consent of unit owners with regard to the construction and/or replacement of the balcony in accordance with the provisions of the Florida Condominium Act and/or the declaration of condominium. 3. Whether the association improperly assessed each unit owner for the costs of the balcony alterations, without seeking a unit owner vote, in violation of Article XII, of the declaration of condominium. 4. Whether the association has provided the Stanleys with timely access to the official records of the association as required by Section (12), Florida Statutes (2002). CONCLUSIONS OF LAW The arbitrator has jurisdiction over this cause pursuant to Section , Florida Statutes, in that the case involves the authority of the association to alter or add to the common elements. BALCONY MAINTENANCE follows: Section (2)(a), Florida Statutes, provides, in pertinent part, as [T]here shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material 3

4 alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. Article IX of the declaration of condominium provides in pertinent part: [T]he Association, at its expense, shall be responsible for the maintenance, repair, and replacement of all the common elements and limited common elements It is undisputed that the balconies are a limited common element and that the association has a duty to maintain, repair and replace the balconies when necessary. The Stanleys argue, however, the maintenance or repair to the balconies is not usual and therefore requires the affirmative vote of two-thirds of the unit owners, as required by Article XII, of the declaration of condominium. Florida case law runs contrary to the Stanley s assertion. Where an alteration or addition is necessary to maintain or preserve the common elements, it is exempt from the requirement of unit owner approval. See Tiffany Plaza Condominium Association, Inc. v. Spencer, 416 So. 2d 823 (Fla. 2d DCA 1982) (assuming construction of rock revetment was necessary to protect the common elements from damage, unit owners approval was unnecessary); Cottrell v. Thornton, 449 So. 2d 1291 (Fla. 2d DCA 1984) (action taken by the association, including repairs to the canal system, the road system, and the swimming pool, could be undertaken without a unit owner vote where it was demonstrated that such action was required to protect the common elements from further damage); Ralph v. Envoy Point Condominium Association, Inc., 455 So. 2d 454 (Fla. 2d DCA 1984) (court upheld board s decision to build a seawall extension without an advance vote of the unit owners where it had been demonstrated that the work was necessary to 4

5 protect the common elements); Levinson, et al. v. Victoria Towers Condominium Association, Inc., Arb. Case No , Final Order (February 11, 1997) (project involving removal and replacement of deteriorated concrete on cantilevered balconies, and repair to reinforcing bars inside the concrete support, held to involve structural repair and maintenance); Mueller v. La Renaissance Condominium Association, Inc., Arb. Case No , Final Order (February 23, 1998)(The duty of an association to maintain and repair the common elements was determined to authorize an association to undertake a patio restoration project without a vote of the owners, where it was shown necessary to protect, repair, and maintain the common elements.) In the instant case, the association sought to maintain and repair the balconies. The fact that such maintenance and repair is not common or occurs infrequently does not render the repairs subject to unit owner approval. The need to protect the common elements and unit owner safety overrides the need to obtain unit owner approval for such work and the fact that a project is unusual or uncommon does not outweigh these considerations. SPECIAL ASSESSMENT Article XII, of the declaration of condominium (effective February 3, 1983), provides that: Whenever in the judgement of the Board of Administration the condominium property shall require additions, alterations or improvements (in excess of the usual maintenance), and the making of such additions, alterations or improvements shall have been approved by written approval of sixty-six and two-thirds (66 2/3%) percent of the apartment owners, the Board of Administration shall proceed with 5

6 such additions, alterations or improvements and shall specially assess all apartment owners for the costs thereof as a common expense, provided, however, no such special assessment shall be levied for improvements which shall exceed one hundred fifteen (115%) percent of the current regular annual assessment, unless prior written consent is received from all voting members. The provisions of Article XIII refer to costs for additions, alterations or improvements (in excess of usual maintenance) that exceed 115% of the current regular annual assessment. Article XIII, does not apply to maintenance, repair and replacements of common elements necessary for the safety of the condominium and its occupants. ACCESS TO UNIT It is clear that the association has a right of access to the Stanley s unit. This right typically finds its basis in the statute, in the documents, and in the decisional law. Section (5), Florida Statutes, guarantees an association irrevocable access to the units: when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association. or as necessary to prevent damage to the common elements or to a unit or units. The right of an association of access to the units is broad, and has been held to authorize an association to require that each owner submit a unit key to the association for such use as may be necessary. See Ainslie at Century Village Condominium Association, Inc., Arb. Case No , Amended Final Order (August 24, 1993)(The right of access is broad enough to require that an owner provide the security combination code to disarm the unit alarm where it was 6

7 necessary for the association to gain access to provide pest control services.); The Beaches of Longboat Key-South Owners Association, Inc. v. Goldreyer, Arb. Case No , Partial Summary Final Order (September 9, 1996)(The right of access includes the authority to require the owner to grant access to the unit where such access was necessary for an association re-piping project.); Carmel by the Lake Condominium Association, Inc. v. Mullin, Arb. Case No , Summary Final Order (January 31, 1996)(right of access held to authorize the association to enter a unit after a hurricane in order to remove items damaged by the storm.); Higdon v. Seaspray Condominium Association, Inc., Arb. Case No , Summary Final Order (March 24, 1998)(association was authorized to gain access to a unit where it was necessary to monitor the progress of a balcony restoration project); Brickell Town House Association, Inc. v. Del Valle, et al., Arb. Case No , Final Order (September 12, 1995), Order on Motion for Rehearing (December 6, 1995)(the right of access to the units, combined with the duty of the association to maintain and protect the condominium and the residents, was sufficient to permit the association to temporarily remove the owners from their units where it was necessary to use certain units in the reconstruction of the balcony areas.) It has also been said that the right of access to the units is broad and is not restricted to instances in which an emergency is presented, but comes into play whenever the association s related functions of maintenance, repair, or replacement of the property are implicated. See Cypress Isle at the Polo Club 7

8 Condominium Association, Inc. v. Shelton, Arb. Case No , Order Requiring Status Report (July 22, 1998). In this case, the association seeks to repair the Stanley s balcony. The Stanley s allege that the association should not be permitted to repair the balcony as Dr. Stanley suffers from Alzheimer s and Parkinson s diseases. These facts, if proven, do not constitute a legal defense or excuse the Stanleys for their interference with the association s right to gain access to their unit, and with the right of the association to use their unit as necessary for the project in repairing the balcony and other portions of the common elements. The association also has the right and obligation to use its business judgment to effectuate needed repairs to the common elements. OFFICIAL RECORDS The Stanleys asserts in their petition that the association has failed to provided them with timely access to the official records of the association as required by Section (12), Florida Statutes (2002). The Stanley s in a letter dated June 7, 2002, requested that the association inform them with regard to the demolition/construction project how much assessment money has been utilized as far as labor, materials, overhead and construction? How much assessment money do we have in excess of this figure? The Stanley s assert that this was an official records request pursuant to Section (12), Florida Statutes. The Stanley s requests, however, is not an official records request. The Stanley s request does not seek access to or request the production of any record of the association. The 8

9 Stanely s letter is a written inquiry 2 that requests that the association answer questions posed by the Stanleys regarding the assessments for the construction project. Accordingly, as the Stanleys have not filed a written official records request with the association and have in fact not identified any official record to which they have been denied access no violation of Section (12) has occurred. Based on the foregoing, it is ORDERED: 1. The relief requested by the Stanleys, an order prohibiting the association from repairing and/or improving the balconies and from collecting the special assessment to fund the work is DENIED. 2. The Stanleys shall within 14 days of the date of this order provide access to the association for these purposes, and shall in the future comply with s (5), Florida Statutes, by providing access to their unit when required pursuant to the association s duty to repair, replace, and protect the common elements. DONE AND ORDERED this 16 th day of July 2003, at Tallahassee, Leon County, Florida. Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street 2 Written unit owner inquiries are subject to the provisions of Section (2)(a) 2, Florida Statutes. 9

10 RIGHT TO TRIAL DE NOVO Tallahassee, Florida PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO 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. ATTORNEY S FEES As provided by s , 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 , 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 , 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. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 16 th day of July 2003, to: Lynn R. Price, Esq. Lynn R. Price, P.A Highway A1A Suite 2 Indian Harbour Beach, FL Marlene L. Kirtland, Esq. Becker & Poliakoff, P.A Maitland Center Parkway Suite 209 Maitland, FL Richard M. Coln, Arbitrator 10