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 Maria Colavito, a/k/a Maria Dinan, Petitioner, v. Case No Rivertown Manor Condominium Association, Inc., Respondent. / FINAL ORDER Statement of the Issue The issue in this case is whether the Association or the unit owner must perform repair of an electrical conduit imbedded in the concrete of the unit s limited common element balcony. Procedural History On May 27, 2008, Maria Colavito filed a petition for Arbitration against Rivertown Manor Condominium Association, Inc. seeking to have the Association repair an electrical conduit embedded in her limited common element balcony. An Order Requiring Answer was entered on June 11, An Answer to the Petition was filed on August 7, On August 19, 2008, an Order Requiring Mediation was entered. The parties attended mediation but it resulted in an impasse. Following the mediation each party elected to continue with nonbinding arbitration. A Final Hearing was held on February 25, The parties were given until March 20, 2009 to file written submissions pursuant to Rule 61B (6), Florida Administrative Code. 1

2 Statement of the Facts 1. Petitioner is the owner of Unit B-207 of Rivertown Manor Condominium in Deerfield Beach, Florida. 2. Respondent is the Association responsible for the operation and maintenance of Rivertown Manor Condominium. 3. Petitioner s unit is on the second story of a two-story building with a balcony over a patio of the unit below, Unit B In July 2007 heavy rains made the unit owners suspect that water dripping onto the first floor patio was coming from a leak through Petitioner s balcony. 5. After July 2007, Petitioner decided to hire a contractor to remove the chattahoochee surface from the balcony. 6. Chattahoochee is a textured cementitious surface of small pebbles placed on top of concrete. If it is not maintained by resealing, it will deteriorate with age allowing water to penetrate to the concrete. 1 Chattahoochee surface was used in the original construction of all the balconies and patios in Rivertown Manor. At the time of the final hearing, the chattahoochee had been replaced by a different surface in 62 out of the 64 units of the condominium. 7. Because the chattahoochee on Petitioner s balcony contained areas of loose and bulging pebbles, Petitioner was advised the surface would have to be removed before a new surface could be installed. 1 Midman v. Sun Valley East Condo. Assn., Inc., Arb. Case No , Final Order (August 26, 1999); Arena v. Cricket House Condo. Assn., Inc., Arb Case No , Final Order (July 21, 1997; Bronstein v. Hills of Inverrary Condominiums, Arb. Case No , Summary Final Order (March 24, 1995). 2

3 8. Before significant effort to remove the pebbles began, pebbles brushed away by hand from a small bulging area revealed an electrical conduit imbedded in the concrete of the balcony. 9. Photographs submitted in evidence at the final hearing show this small area in an apparently random spot on the balcony not close to a wall, an edge or the center of the balcony. Approximately one foot of exposed area runs lengthwise over the embedded conduit, with a width of five to six inches. Chattahoochee continues to cover the rest of the 6.8 foot by 13.6 foot balcony. The exposed area is a third to a half inch deep. 10. Most of the conduit remains embedded in the concrete. One-eighth inch steel wires, appearing to be part of a continuous mat consisting of a four inch grid cross over this section of conduit at three points. Other than the portions bent over the conduit, the grid is further embedded in concrete. It is concluded this grid was intended as a leveling mat when the concrete was poured, but that it bulged up into the chattahoochee over the conduit. 11. Testimony at the final hearing establishes that the placement of the conduit, and wire over it, represent defective initial construction. The conduit should have been two inches deeper in the four inch thick concrete balcony. As the top of the conduit rusted away, the electrical wires within it deteriorated from weathering. 12. The electrical wires within the conduit connect to a light fixture above the patio of the unit below. 13. The exposed electrical wiring poses a danger to Petitioner and to the unit owner below and leaves the light fixture for the patio below inoperable. 14. The rusted out conduit now channels water through the balcony to the patio 3

4 below. 15. In February 2008, Petitioner requested that the association repair the electrical conduit. Respondent demanded that Petitioner perform the repairs to the conduit because Petitioner had caused the damage to the conduit by improper maintenance or unauthorized construction. 16. Testimony at the final hearing establishes that the deterioration of the conduit and electrical wires had developed over a number of years. Conclusions of Law The Division has jurisdiction over this matter pursuant to section , Florida Statutes, and Rule 61B (7), Florida Administrative Code, over a dispute alleging the unit owner s use of a common element was directly affected by lack of maintenance. Section , Florida Statutes, provides in pertinent part: 1) Maintenance of the common elements is the responsibility of the association. The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements. If the maintenance is to be by the association at the expense of only those entitled to use the limited common elements, the declaration shall describe in detail the method of apportioning such costs among those entitled to use the limited common elements, and the association may use the provisions of s to enforce payment of the shares of such costs by the unit owners entitled to use the limited common elements. Common elements means the portions of the condominium property not included in the units. Section (8), Florida Statutes. It includes, Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing 4

5 of utility services to units and the common elements. Section (1)(b), Florida Statutes. Section 5.1(a) of the Declaration of Condominium provides, in part: The Association shall maintain, repair and replace at the Association s expense: (1) All common elements and limited common elements except as to the patios. Patios, except for fences, shall not be the responsibility of the Association. Patio fences, including interior and exterior surfaces, however, shall be the responsibility of the Association.... (3) All conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services contained in the portions of a Condominium Unit that service part or parts of the Condominium other than the Condominium Unit within which contained. Because the Declaration provides that the lower boundary of the second floor unit is the horizontal plane of the upper surface of the second floor, it is clear that anything below the top surface of the chattahoochee is not part of the unit. The Declaration distinguishes between a balcony or patio in both the description of unit boundaries and in the schematic drawings: first floor patio; second floor balcony. Therefore, Petitioner s balcony cannot be considered a patio which is excluded from the maintenance responsibility of the Association. The conduit is a common element within a common element, and the Association does not contend otherwise. The Association s sole contention is that, because Petitioner caused damage to the conduit by not maintaining or by removing the chattahochee surface, Petitioner is responsible for repair of the conduit. Localized deterioration over defective construction is not evidence of negligent maintenance, especially in light of the known failures of similar products and the lack of other balconies in Rivertown Manor to demonstrate superior condition. Under the 5

6 circumstances, there is a total lack of evidence to support causation from lack of maintenance. The photographs produced at the final hearing show removal of pebbles only in the small area right over the defective conduit. There is no evidence of an attempt at construction or systematic removal. Based on the evidence it is concluded the damage resulted from defective construction and the passage of time and, most likely, could not have been avoided by any additional maintenance. The limited issue presented by the pleadings in this case is who will perform the repairs of the conduit and electrical wiring. Under the facts, section , Florida Statutes, and Respondent s governing documents place that responsibility on the Association. Based on the foregoing, it is ORDERED: 1. That, within sixty days of this Order, Respondent, Rivertown Manor Condominium Association, Inc. shall perform all necessary maintenance for the electrical conduit which it finds appropriate in the reasonable exercise of business judgment, which may range from permanently sealing off and covering the conduit to replacing the wiring and conduit to service the patio of the unit below; 2. Respondent shall insure that, after the repairs performed on the electrical conduit, Petitioner will be left with an adequate level and solid base for installation of a new permanent surface by Petitioner s contractor; 3. The method and appearance for Petitioner s resurfacing of the balcony shall remain subject to board approval pursuant to the governing documents. 6

7 DONE AND ORDERED this 23rd day of March, 2009, at Tallahassee, Leon County, Florida. Bruce A. Campbell Arbitrator Dept. of Bus. & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed within 30 days, 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 within 45 days, 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 on default has been sent by U.S. Mail to the following persons on this 23rd day of March, 2009: Courtney B. Weisholtz, Esq. P.O Box Miramar, FL Tamar Duffner Shendell, Esq N. Federal Highway, Suite 202 Lighthouse Point, FL Bruce A. Campbell 7

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