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 2701 Riverside Drive 107-B, LLC, Petitioners, v. Case No Coral Springs Tower Club II Condominium Association, Inc., Respondent. / FINAL ORDER OF DISMISSAL On December 20, 2010, Petitioner filed Mandatory Non-Binding Petition for Arbitration alleging five disputes as to Unit 107-B in Coral Springs Tower Club II Condominium Association. On February 3, 2011, the Association filed its Answer including certain defenses. Among the defenses, Respondent raises the failure of Petitioner to provide adequate pre-arbitration notice as to all disputes except the dispute regarding a call box entry system. Review of the Amended Petition, its allegations as to pre-arbitration notice and its supporting attachments supports Respondent s defense. Additionally, analysis of the call box entry system issue concludes that it falls outside the arbitration jurisdiction provided by section , Florida Statutes. provides: Section , Florida Statutes, limits the disputes eligible for arbitration. It (1) DEFINITIONS.- As used in this section, the term dispute means any disagreement between two or more parties that involves: (a) The authority of the board of directors, under any law or association document to: 1

2 1. Require any owner to take any action or not to take any action involving that unit owner s unit or the appurtenances thereto. 2. Alter or add to a common element. (b) The failure to a governing body, when required by this chapter or an association document, to: 1. Properly conduct elections. 2. Give adequate notice of meetings or other actions. 3. Properly conduct meetings. 4. Allow inspection of books and records. Dispute does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against any party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. Subsection (4)(b), Florida Statutes, requires that the petition recite, and have attached thereto, supporting proof that the petitioner gave the respondent: 1. Advance written notice of the specific nature of the dispute; 2. A demand for relief, and a reasonable opportunity to comply or to provide the relief; and 3. Notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the dispute. Section (4)(b) further provides that failure to include the allegations or proof of compliance with these prerequisites requires dismissal of the petition without prejudice. The five disputes alleged in the Amended Petition may be stated as follows: 1. Doors to the condominium building are locked. The main entry door has a call box on which a visitor can dial the phone number of a unit owner, so that the unit owner can unlock the front door from his unit. The Association refuses to activate the call box for numbers other than land lines to interior units, but Petitioner wishes to use numbers that would allow it to unlock the entry door remotely even when no one is in Petitioner s unit. 2

3 2. Petitioner placed a realtor lock-box on the exterior of the door to Unit 107- B. Petitioner alleges Respondent removed the lock-box. 3. Petitioner replaced the door knob of the exterior door to Unit 107-B with a door knob containing a combination lock. Respondent has demanded removal of the combination lock. 4. The Association has failed to approve an application for approval of certain prospective tenants to rent the unit. 5. The Association has demanded payment of certain attorney s fees for its attempts to require Petitioner to comply with Association requirements. Call Box Dispute In order to fall within arbitration jurisdiction authorized by section , the call box dispute would have to involve the Association requiring Petitioner to do or not do something with its unit or appurtenances or involve a change to a common element by the Association. The Amended Petition alleges the Association will not make a change to the operation of the call box which Petitioner desires and thinks is reasonable. Currently, Petitioner has the same ability as all other unit owners to enter the building. The Amended Petition admits there is no mention of the call box in the governing documents, but alleges the easement for ingress and egress applies to unrestricted use of the call box. Such a contention is not supported by experience or common sense, because it would also support an argument that there should be no locked door at the entry to the condominium building. The method of operation Petitioner wants is not a use appurtenant to its unit. 3

4 Additionally, the Amended Petition does not challenge the authority of the Association to alter or add to a common element. There is no jurisdiction when the Association refuses a unit owner s request to change a common element. Realtor Lock Box The Amended Petition alleges the Association removed a realtor lock box from the exterior of the door to Petitioner s unit. That is, the Association acted with respect to an item of personal property placed on a common element of the condominium. This does not fall within arbitration jurisdiction because it does not involve a requirement that Petitioner take any act with respect to his unit or appurtenances and does not involve alteration of a common element. Combination Lock Door Knob Arbitration jurisdiction would extend to a dispute over alteration of the exterior door of a condominium unit. However, although the Amended Petition attaches a copy of an April 9, 2010 letter from the Association s attorney that demands restoration of the original appearance of the unit s door, there is no subsequent written notice from Petitioner of the intent to present this dispute for arbitration. Application for Approval of Prospective Tenant Arbitration jurisdiction would extend to a dispute over imposition of limits on Petitioner s right to rent as provided in the declaration of condominium. However there is no alleged pre-arbitration notice for refusal to approve a tenant application for Unit 107-B, after the application dated March 29, 2010 which is part of Exhibit F to the Petition. 4

5 Attorney s Fees There is no jurisdiction under section , F.S. over a dispute arising from Association attempts to enforce governing documents outside the arbitration process Based on the foregoing, it is ORDERED: 1. Arbitration Case No is Dismissed with prejudice for lack of jurisdiction over the call box dispute, the realtor lock box dispute, and the attorney s fees dispute, and Petitioner is free to pursue those claims in a court of competent jurisdiction; 2. Arbitration Case No is Dismissed without prejudice for failure to provide adequate pre-arbitration notice as to the combination door lock issue and as to the rental application issue. DONE AND ORDERED this 7th day of January, 2011, at Tallahassee, Leon County, Florida. Copies furnished to: David A. Kupperman, Esq. Chapnick Community Association Law 100 East Linton Blvd., Suite 502-B Delray Beach, FL Bruce A. Campbell, Arbitrator Dept. of Bus & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida Andrew P. Speranzini, Esq. Randall K. Rogers & Assoc., P.A. 621 N.W. 53rd Street, #300 Boca Raton, FL