STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION The Waterview Towers Condominium Association, Inc., Petitioner, v. Case No. 2004-05-4918 Case No. 2005-03-0729 Marjorie Kamhi, Respondent. Marjorie Kamhi, Petitioner, / v. Case No. 2005-03-8775 The Waterview Towers Condominium Association, Inc., Respondent. / FINAL ORDER A final hearing was conducted on November 29, 2005, in the above styled cases. The Waterview Towers Condominium Association, Inc. (the association) was represented by Michael J. Monchick, Esquire. Unit owner Marjorie Kamhi (unit owner) was not represented by counsel at the time of the final hearing and did not appear at the final hearing. 1 Procedural History 1 These cases were consolidated and heard in conjunction with one another to resolve all disputes raised in the parties respective petitions. 1
The association filed petitions for arbitration in arbitration cases 2004-05-4918 and 2005-03-0729 on November 9, 2004, and June 2, 2005, respectively. In arbitration case 2005-05-4918, the association requested an order requiring the unit owner to permit it access to her unit to repair water damage to the unit balcony. 2 In arbitration case number 2005-03-0729, the association s petition alleged that the unit owner had failed to maintain her unit, including the air conditioner, allowing moisture to enter the unit which resulted in the formation of mold and mildew throughout the unit. The association requested an order finding the respondent liable for extensive damage to the walls, ceilings, floors, windows and doors, fixtures and appliances within the unit as well as the dissemination of mold to the surrounding condominium units. On June 29, 2005, the unit owner responded to the petition for arbitration in case number 2005-03-0729, denying responsibility for damage to the unit s interior and the allegation that her failure to maintain her unit had resulted in the spread of mold to other units within the condominium and maintaining that the damage to her unit and the surrounding unit resulted from the association s failure to make necessary repairs after gaining access to her unit. The unit owner also filed her own petition for relief in arbitration case number 2005-03-8775, alleging that the damage to her unit was caused by the association and seeking compensation for damage to her personal property and for denial of access to her unit by the association. This order is entered accordingly. Discussion 2 A final order of default was entered against the unit owner in case number 2004-05-4918 after she failed to answer the petition for arbitration. The final order directed the unit owner to provide the association with access to the unit and found her liable for damages to the unit balcony that resulted from her failure to maintain the tile. Subsequently, the unit owner moved to set aside the final order of default aside, but the motion was denied for the reasons set forth in the arbitrator s August 4, 2005, Order on Motion to Vacate Default and Default Final Judgment. 2
Section A.1 of article XII of the association s declaration of condominium, as amended, states that [e]ach Residential Unit Owner shall maintain in good condition and repair and replace at his expenses when necessary all portions of his Residential Unit, including the surfaces of the walls, floors and ceilings of any balcony. This section also provides that [e]ach Residential Unit Owner must perform promptly all such maintenance and repairs which if not performed would affect a Residential Unit belonging to any other Residential Unit Owner and shall be liable for any damages that arise due to his failure to perform the above referenced maintenance, repairs and replacement. #B1 of the association s Rules and Regulations states that [a]ny damage to the Condominium Property including Common Elements and Residential Limited Common Elements caused by a Residential Unit Owner shall be repaired at the expense of such Residential Unit Owner. Pursuant to the arbitrator s Final Order on Default dated March 9, 2005, the unit owner is responsible for the damages to the unit balcony that resulted from her failure to repair the balcony tile. The association presented evidence at the final hearing that the estimated cost to repair the unit balcony was $69,526.52. This consisted of the testimony of expert witness, Bijan Parssi of Botkin, Parssi and Associates, a structural engineer and his prepared cost analysis report. According to Mr. Parssi, he initially inspected the balcony of unit B-5 in November 2003, and again in November of 2005, and indicated that during his initial inspection, the balcony concrete was examined as well as the exterior wall columns and the balcony railing. His inspection revealed that moisture had penetrated the concrete, resulting in the deterioration of the balcony concrete. He testified that the building itself was 19 years old, and the expected life of the balconies, as originally 3
constructed, was 20-30 years. He was aware that the association had previously completed restoration work on some of the other condominium balconies, but the restoration work was limited to replacement of the concrete at the edge of the balconies. He opined that the damage to the balcony for unit B-5 resulted primarily as a result of the unit owner failing to maintain the balcony railing and tile. He further testified that had proper remedial work been completed at the time he initially inspected the unit balcony, that the balcony life could have been extended. 3 James Gordon of Gordon & Sons, Inc., testified regarding necessary repairs to the sliding glass doors facing the unit balcony. Mr. Gordon completed an inspection of the doors, finding that the tracks and the door frames had substantial corrosion and were damaged to the point of replacement. He testified that had the doors been cleaned and maintained, the doors would have held up longer, but, given their present condition, all of the doors had to be replaced, as they were not closing properly and were permitting moisture to enter the unit. The total cost to replace the sliding glass doors was $59,892.00. The association also presented the testimony of Donna Bashar, the association s property manager and Glen Chaplain of Bio-Science Environmental Service and Laboratory, Inc. According to Ms. Bashaar, Ms. Kamhi had not been cooperative with the association in taking appropriate measures to maintain her unit and the unit balcony. She testified that at the time the association inspected Ms. Kamhi s balcony in 2003, Ms. Kamhi was informed that a mold problem was developing because of moisture intrusion into the unit. The association was subsequently forced to retain the services of a company specializing in mold remediation because substantial amounts of mold had grown 3 He offered no opinion as to the length of time the balcony life could have been extended with proper 4
throughout the unit and was spreading to some of the surrounding condominium units. Mr. Chaplain inspected Ms. Kamhi s unit, as well as those units surrounding unit B- 5, and found mold growth was in each of the units, as well as the common element hallway outside unit B-5. Mr. Chaplain concluded that the mold growth in unit B-5 had spread to the common elements and the surrounding units through the air conditioning unit vents and through the elevator shaft. He testified that during his inspection of Mr. Kamhi s unit, he discovered water leaks around the unit s windows and doors. The carpeting was also wet from water coming in from underneath the sliding glass door tracks. He prepared a report in which he documented extensive mold growth throughout unit B-5 as well as the mold growth found in the exterior hallways and units A-5, B-4, B-6 and C-5. The cost estimate for clean up and repair to unit B-5 was $27,279.00, which included replacement of damaged drywall, carpeting and baseboards through out the unit. Additionally, Mr. Chaplain testified that the cost for mold remediation services for the affected common areas and surrounding units would be $12,810.00. None of these findings were disputed at the hearing, nor was any of the testimony contradicted by any evidence presented by Ms. Kamhi. Ms. Kamhi filed her own petition for arbitration against the association in case number 2005-03-8775, alleging entitlement to damages because the association denied her access to her unit. 4 She also requested an order for damages to her personal property that allegedly resulted from the association s actions of controlling access to the repairs. 4 The association temporarily had exclusive control of the unit because it changed the entrance lock to the unit after it had been unsuccessful in obtaining a key from Ms. Kamhi. As a result of Ms. Kamhi s initial failure to provide the association with access to the unit, the association sought relief in arbitration case number 2004-05-4918, in which it obtained an order that required Ms. Kamhi to allow the association access to the unit to inspect it for needed repairs. Alternatively, the order gave the association authorization to engage the services of a locksmith to gain entry to the unit in the event Ms. Kamhi failed to do so. 5
unit. No evidence was presented as to any of the damages claimed by Ms. Kamhi in this case. As there was no proof of damages as alleged by Ms. Kamhi, her claim is denied. As to the association s request for damages in arbitration case 2004-05-4918 and as to the relief sought by the association in 2005-03-0729, the evidence supports a finding that the unit owner is responsible for cost of repairs to the balcony, the costs of replacing the sliding glass doors, and the costs associated with mold remediation to her unit as well as units A-5, B-4, B-6, and C-5 and the common element hallways. It is therefore ORDERED that the unit owner shall be responsible for repairs to the balcony in the amount of $69,526.52, and for the costs for replacement of the sliding glass doors of $59,892.00 as well as for $40,089.00 in costs for mold remediation services. DONE AND ORDERED this 23 rd day of February, 2006, at Tallahassee, Leon County, Florida. Catherine Bembry, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail, postage prepaid, to the following persons, on this 23 rd day of February, 2006. Michael J. Monchick, Esquire 515 North Flagler Drive, 17 th Floor West Palm Beach, Florida 33401 Marjorie Kamhi 5709 Bamboo Circle Tamarac, Florida 33319 6
Catherine Bembry, Arbitrator Right To Trial De Novo As provided by section 718.1255, Florida Statutes, this final order may be appealed by filing a complaint for trial de novo in a court of competent jurisdiction in the circuit in which the condominium is located within 30 days of the entry and mailing of this final order. This final order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. Attorney s Fees As provided by s. 718.1255, 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-45.048, 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-45.048, F.A.C. The filing of an appeal by trial de novo of this final order tolls the time for the filing of a motion seeking prevailing party costs and attorney s fees until 45 days following the conclusion of the de novo appeal proceeding and any subsequent appeal. 7