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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION CLIPPER COVE VILLAGE MASTER CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No SUSAN GRECO, Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes convened a formal hearing in this case on May 11, The parties were duly noticed of the proceeding by pre-hearing order entered on February 24, During the hearing, the parties presented the testimony of witnesses and tendered documents into evidence. Parties were permitted to submit a Proposed Final Order. This order is entered after consideration of the complete record in this matter. APPEARANCES For Petitioner: For Respondent: Earnest W. Sturges, Jr., Esq. 701 JC Center Court, Suite 3 Port Charlotte, Florida Glenn N. Siegel, Esquire Murdock Circle, Suite A Port Charlotte, Florida

2 STATEMENT OF THE ISSUES 1. Has Respondent violated Articles 8.1(C), 11.2(Q) and 11.7 of the Declaration of Condominium by enclosing her lanai? 2. Is the Petitioner estopped from demanding removal of the Respondent s enclosure of her lanai? PERTINENT PROCEDURAL HISTORY On July 10, 2009, Clipper Cove Village Master Condominium Association, Inc. (Association) filed a Petition for Mandatory Non-binding Arbitration naming Susan Greco as respondent. The Association alleges that Respondent is in violation of Article 11 of the Declaration of Condominium by enclosing her limited common element lanai. The Association seeks an order requiring Respondent to remove the enclosure and restore the lanai to its original unaltered state and to award the Association its attorney s fees and costs in this matter. On August 10, 2009, Respondent filed an Answer to the petition in which she admitted to making the modifications to the lanai, denied that it was without permission and raised the defenses of: consent, estoppel, laches, waiver, acquiescence, and Statute of Limitations. On September 16, 2009, the case was ordered to mediation. On October 12, 2009, an impasse was declared. On October 30, 2009, Respondent elected to continue with binding arbitration. On November 9, 2009, Petitioner elected to continue with binding arbitration. A final hearing was held on May 11, FINDINGS OF FACT 1. Clipper Cove Village Master Condominium Association, Inc. (Association) is the successor by merger to Clipper Cove Village 1-3 Condominium Association, Inc., and 2

3 the legal entity responsible for the maintenance and operation of the Clipper Cove Village 1-3 Condominium, a condominium subject to Chapter 718, Florida Statutes. 2. Respondent is the owner of unit 112 of the Clipper Cove Village 1-3 Condominium Association, Inc., which is subject to the condominium governing documents. 3. Respondent contracted for the enclosure of her lanai on April 16, 2004 and the installation was completed on June 5, The Association demanded that Respondent remove the lanai enclosure and restore the lanai to its original condition by letters dated: September 27, 2005; December 27, 2005; October 28, 2008; and February 19, The Association filed a Petition for Mandatory Non-binding Arbitration on July 10, 2009, naming Susan Greco as respondent. 6. On May 11, 2010, a telephonic final hearing was held and the following witnesses testified: Susan Greco (Respondent), Kristine Wishar (owner of Gateway Management), Richard Sikorski (current community property manager), Randall Maitland (Aluminum Contractor), Joseph Leemon (unit owner #312), and Richard Mocny (unit owner and former board member). 7. At all times relevant to the dispute, the modifications to Respondent s lanai were done without approval by the Association. CONCLUSION OF LAW Clipper Cove Village Master Condominium Association, Inc. is the successor by merger to Clipper Cove Village 1-3 Condominium Association, Inc., and is a condominium association within the meaning of Chapter 718, Florida Statutes. The undersigned has 3

4 jurisdiction over the parties and the subject matter of this dispute, pursuant to section , Florida Statutes. The Respondent, by her ownership of a unit at the condominium, is required to comply with all governing condominium documents. Article 8.1(C.) of the Declaration of Condominium, identifies that the patios, lanais and porches that are attached to and serving units exclusively are limited common elements. Article 11.2(Q.) of the Declaration of Condominium, in pertinent part, prohibits owners from changing the appearance of the building exterior without prior written approval of the Association. Article 11.7 of the Declaration of Condominium, states, in pertinent part, as follows: [emphasis supplied]. No owner shall make or permit the making of any material alterations or substantial additions to his unit or the limited common elements, or in any manner change the exterior appearance of any portion of the Condominium, without first obtaining the written approval of the Board of Directors. In the case at hand, Respondent enclosed the lanai to her unit on June 5, By letter dated September 27, 2005, the Association notified Respondent that the enclosure was a violation of the governing documents and demanded its removal and the restoration of the lanai to its original condition. Laches/Statute of Limitation Respondent has alleged the affirmative defense of laches based on the lapse of time the Association allowed Respondent s enclosure to remain. Laches is an equitable defense which weighs the totality of the circumstances to determine whether it would be fair to grant affirmative relief to a party. The elements of laches are as follows: that there is conduct on the part of the defendant giving rise to a situation of which complaint is made; 4

5 that plaintiff, having knowledge or notice of the defendant s conduct, and having been afforded the opportunity to institute suite, is guilty of delay in asserting his right by suit; that there is a lack of knowledge on the part of the defendant that plaintiff will assert the right on which he bases his suit; and there is injury or prejudice to defendant in the event relief is afforded to plaintiff, or in the event suit is not held to be barred. Niagra Fire Ins. Co. v. Allied Elec. Co., 319 So.2d 594 (Fla. 3d DCA 1975). In the case at hand, the violation occurred beginning on June 5, The Association first notified Respondent of the violation and demanded cure on September 27, 2005, December 27, 2005, October 28, 2008, and then again on February 19, The Association file suit on July 10, 2009, six years, one month, and five days later. In Heisner v. Bimini Village Condominium Association, Inc. v. Jamnik, Arb. Case No , Final Order (May 11, 1995)(laches was ruled to bar the enforcement action for a tile violation, because the complainant had waited six years before enforcing the violation). Considering that the Association waited over six years before it began its enforcement action, the Association s behavior allowed the Respondent to reasonably believe that the changes to her lanai were acceptable to the Association. Pursuant to the rational in the cases cited above, the Association s six years of inaction prior to filing the claim to enforce its documents constituted an unreasonable delay and the defense of laches applies. Additionally, Respondent alleges the case should be dismissed because the Association failed to take any action to timely institute legal proceedings, as set forth in 95.11(2)(b), Florida Statutes. In considering the defense of statute of limitations, the period also begins to run when the action may be brought. See Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579 (Fla. 5th DCA 2003)(Unit owner alleged condominium 5

6 association failed to enforce the declaration against five unit owners who erected screen enclosures in violation of the documents. Trial court required removal of two of the five enclosures based upon five year statute of limitations. Appellate court found either one year or five year limitation period could apply, but court applied longer five year period concluding that when there is a reasonable question as to which limitation period should apply, resolution should be in favor of longer limitation period.). It has been clearly established that Respondent s lanai enclosure was completed on June 5, 2004 and that the Association filed its petition on July 7, The Association has not advanced any theory that would have the effect of tolling the statute. Accordingly, the petition was not filed within the five year statute of limitations. Based on the foregoing, the arbitrator finds that this action is time barred and is hereby dismissed based on the statute of limitations. Florida. Therefore, based on the forgoing, it is ORDERED: Arbitration Case No is dismissed with prejudice. DONE AND ORDERED this 23 rd day of July, 2010, at Tallahassee, Leon County, Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Fax:

7 Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. As provided by section , Florida Statutes., the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Rule 61B , F.A.C. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 23 rd day of July, 2010 Earnest W. Sturges, Jr., Esquire 701 JC Center Court, Suite 3 Port Charlotte, Florida Glenn N. Siegel, Esquire Murdock Circle, Suite A Port Charlotte, Florida Tonya S. Chavis, Arbitrator 7