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 THE PRIVATEER SOUTH CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No JON E. SCHIFF and LINDA B. SCHIFF, Respondents. / FINAL ORDER Comes now, the undersigned arbitrator and issues this final order as follows: The Privateer South Condominium Association, Inc., filed this petition asserting that the respondents had, without authorization and in violation of the association's documents, installed marble tile on the common element exterior walls of the building and on the top edge (the lip) of the half-height wall enclosing each of two balconies. The petitioner requests as relief that the respondents be required to remove the tile and restore the balconies to their original condition. Pursuant to notice, a formal fact-finding hearing was held. Both parties were represented by counsel and both presented testimony and documentary evidence. Both parties filed post-hearing memoranda. This order is entered after consideration of the complete record in this matter. The petitioner asserts that the respondents were given permission to replace the floor tile installed on their balconies by a previous owner, and that the respondents 1

2 exceeded the scope of the authorization given by tiling the lower half of the balcony walls and the lip of the balconies as well as the floor. The petitioner requests as relief that the respondents be required to remove all tile except on the floor of the balconies. The respondents, for their part, assert that that they acted with the board's authorization. The parties agree that the balconies are limited common elements 1. The balconies are maintained by the association. The balconies and all other stuccoed exterior surfaces of the building were painted with an elastomeric coating, a watertight skin, to protect the building from water damage. Where the balconies are tiled, a different kind of sealant was applied to waterproof the tile. Most of the balcony floors had at various times been tiled, all without authorization and all in violation of the condominium documents. In recognition of this, the board had in February 1999 adopted a policy to permit tiling or retiling the balconies where the unit owner signed a document, drafted by association counsel, waiving any claim against the association for damage resulting from the alteration. The rationale for the waiver was that installing tile would break the skin, leaving the building susceptible to damage that, but for the waiver, the association would be required to repair. The subject unit has two balconies, one off the bedroom and another off the main living area. Each balcony is enclosed with a stuccoed half-height wall. The lip of the half-height wall is about as broad as the length of a hand. At the base of this wall are scuppers for drainage to keep rainwater from sheeting down the exterior of the building. 1 See Section 3.2 of the Declaration of Condominium. 2

3 Although open to the weather, each balcony is visually isolated; it is difficult in the extreme to see the interior of a balcony from anywhere except the unit to which the balcony is attached. Upon purchasing the subject unit, Mrs. Schiff, who is an interior decorator, obtained the board's authorization to completely renovate the unit. Before buying the unit, she had inspected several others shown to her by the property manager and had noticed one with brightly colored tile 2 on the lip of the balcony walls. She decided to tile her own balconies with the same marble tile to be used inside the unit, and also decided to extend the tile up the interior side of the half-height walls, along the lip, and over the lower half of the walls adjacent to the doorways. She discussed her intentions with Mike Rogers, the property manager. 3 He gave her a rule booklet addressing construction work, including times of day during which it may be conducted, and explained that separate authorization must be obtained to tile the balconies. With his assistance, Mrs. Schiff wrote a letter to the board, requesting authorization to "change the old tile on each balcony." The letter stated that the work would meet all of the condominium's "rules/specifications," by which the respondent meant the guidelines and rules in the construction work booklet. Without requesting further information, the board voted to approve the balcony tiling provided that the waiver (exhibit 9) was executed. None of the documents in the record, whether from the association or from the respondents, refer to the floor or the walls of the balcony. 4 The respondents did not 2 This tile has since been removed. 3 This testimony is found more credible than Mr. Rogers' testimony that he was unaware of her plans. Additionally, the petitioner's evidence that Mr. Rogers was not the property manager is inconsistent with other evidence, including the president's letter, and is rejected. 4 Permits pulled for the work underestimated the cost of the work by half, and nowhere mention tile, marble, or balcony work. The contractor testified that building inspectors do not inspect tiling of any sort. The discrepancy is noted; however, the sufficiency of the permits is not at issue in this proceeding. 3

4 communicate directly with the board members, having been directed to deal with Mr. Rogers. The respondents assumed that he relayed to the board such information as the board wished or needed to have. The president directed Mr. Rogers to explain to the respondents what they were to do. 5 On July 29, Mr. Rogers sent the Schiffs a letter "granting permission to begin tiling balcony(s)" pursuant to the waiver and stating that he had already notified their contractor. Mr. Rogers watched the work proceed, 6 while the respondents themselves lived and worked in another part of the state. The finished result is an open expanse of warm rose-brown surfaces extending from the doorway across the floor to the sky and the sea. The tiling was completed sometime after the middle of November. At about the same time, the respondent Mr. Schiff came into conflict with the president of the board on a matter unrelated to the renovation. Immediately after the tiling was completed, the manager spoke to Mrs. Schiff. Conflict exists regarding what he told her. He testified that he was shocked by the unexpected sight of tile on the walls and said so, while she testified that he complained only about what she considered to be finish details. Mrs. Schiff's testimony is found to be more credible, considering that her response was to draft a "punch-list" of finish details, including waterproofing the cement surface at the opening of the drains. On November 23, the contractor faxed a statement of the actions to be taken in response. At some point, Mr. Rogers took the president to tour the balconies. On November 29, the respondents were sent a demand that all tile other than floor tile be removed from the balcony. The respondents refused. Section 3.2 of the Declaration of Condominium provides in part as follows: 5 The president's testimony regarding this directive was found more credible than conflicting testimony. 4

5 The common elements include all areas not excluded within the apartments and the recreation complex with the exception of the balconies contained in the apartments which are limited common elements. Section 9.3 of the Declaration of Condominium states in pertinent part: No unit owner shall make any alteration in the portions of the improvements of the condominium which are to be maintained by the Association or remove any portion thereof, or make any additions thereto, or do any work which would jeopardize the safety or soundness of the building containing his unit or impair any easement. Section 21(h) of the Declaration of Condominium requires each unit owner to: Make no alteration, decoration, repair, replacement, or change of the common elements or to any outside or exterior portion of the building, whether within a unit or part of the common elements. The waiver or agreement signed by the respondents reads in part as follows: WHEREAS, Owner (Schiffs) desire to improve a balcony adjacent to Owner's Unit which balcony is considered a limited common element... and improvement of such balcony could result in damage to the balcony; and WHEREAS, Owner desires to indemnify and hold harmless Association for any damage that may result from the installation of tile on the balcony. * * * Paragraph 2. Owner and association agree that Owner may install tile on any balcony adjacent to Owner's Unit, such installation to be completed in a workmanlike manner by persons experienced in the installation of such tile. The association argues that the Schiffs have damaged the waterproof skin that protects the stucco, and therefore the structure of the building, from water damage. However, the association admits that the respondent had permission to breach the waterproof barrier, and the record reflects that the barrier has been effectively patched. 6 The contractor testified that Mr. Rogers reported on the workmen's activity, functioning as an unpaid superintendent. Mrs. Schiff testified that Mr. Rogers had almost daily comments about the work. 5

6 Removing the tile would inevitably result in new damage to the skin, which would hardly further the expressed goal of protecting the building. The association argues that the Schiffs have altered the exterior of the building. However, the Schiffs were given explicit permission to alter the exterior of the building--the only dispute is how much. It is undisputed that the manager showed the Schiffs a balcony with tiles on the lip of the wall. The Schiffs gained an erroneous impression that other balconies were similarly tiled in areas other than the floor. Because the association's manager was showing the unit with the tiled lip to prospective purchasers, the association had knowledge that at least one unit had tiles on the lip of the balcony wall. Conversely, the respondents had no reason to know that the balcony with extra tiles that was shown to them was a singular, unauthorized anomaly. With this in mind, it is more reasonable to give the association the burden to clearly delineate the bounds of its authorization, to state that the respondents had permission to tile the floor of the balcony. Because the respondents were instead granted general authorization to "tile the balcony" and proceeded in good faith to do so, the association may not now assert that all tile except that on the balcony floor must be removed. Accordingly, it is ordered: The relief requested by the petitioner is denied. DONE AND ORDERED this 23rd day of February 2001, at Tallahassee, Leon County, Florida. Therese Pine, Arbitrator Dept of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

7 RIGHT OF APPEAL In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. ATTORNEY S FEES As provided by Section , Florida Statutes, 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, to STEVEN H. JUDD, ESQ. at JUDD ULRICH & DEAN PA, 2940 S TAMIAMI TR, SARASOTA FL and to DONALD D. CLARK, ESQ. at BROWN CLARK PA, SARASOTA CITY CENTER STE 500, 1819 MAIN ST, SARASOTA FL on this the 23rd day of February Therese Pine, Arbitrator 7