STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES
IN RE: PETITION FOR ARBITRATION
VILLAGER ASSOCIATION, INC.,
Petitioner,
v.
Case No. 2004-00-7743
TIMOTHY and EDITH DOWLING,
Respondents.
/
FINAL ORDER
I. PRELIMINARY MATTERS
The final hearing in the above-styled case was held on November 22, 2004, in
the conference room of the law office of Becker and Poliakoff, located at 630 S. Orange
Avenue, Sarasota, Florida. The parties and their witnesses appeared in person at the
hearing site; the arbitrator was connected by speaker telephone.
The hearing
commenced at 1 p.m. and concluded at 5 p.m.
Petitioner presented the testimony of Barbara Breazeale, the vice-president of
Villager Association, Inc. (association), and Barbara Olekas, Maintenance Director and
member of the Board of Directors. Respondents presented the testimony of Timothy
Dowling. Petitioner’s Exhibit A (the condominium’s governing documents), Exhibit B
(the letter of December 16, 2003), Exhibits 11 – 12, and composite Exhibit 14(a)
through (k) (photographs) were admitted into evidence.
through K were admitted into evidence.
Respondents’ exhibits A
The parties were given until December 2,
2004, in which to file those exhibits that had not been pre-filed and were permitted to file
post-hearing memoranda on or before December 13, 2004.
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II. ISSUES
The factual issues to be determined are as follows:
(1) Whether the respondents improperly placed a sheet of plywood or other
material on top of the common element floor which prevented the association from
maintaining or repairing it;
(2) Whether the respondents installed non-compliant light fixtures outside their
unit and over the stairwell area adjacent to their unit;
(3) Whether the respondents installed and maintained awnings that were not
approved by the association;
(4) Whether the petitioner has selectively enforced the restrictions on the use of
the common elements as to light fixtures, awnings, and flooring.
III. FINDINGS OF FACT
1. Respondent Edith Dowling is the owner of a condominium unit located at
6018 Lilli Way, Brandenton, Florida, in the Villager Apartments condominium. Her
husband, Respondent Tim Dowling, resides at the condominium with her.1 When Mrs.
Dowling purchased the unit in November of 2001, the respondents agreed to comply
with the provisions of the condominium documents, which include the declaration of
condominium, articles of incorporation, bylaws, and rules.
2. Petitioner, Villager Association, Inc., (petitioner or association) is the
1
Although Mrs. Dowling is the sole owner of the unit, the plural term “respondents” is used throughout
this order for consistency even when referring only to the rights or responsibilities of the unit owner.
2
condominium association responsible for the operation of the condominium, and is
authorized to bring an action to compel compliance with the condominium documents.
3. Villager Apartments condominium consists of numerous single-story, villastyle units and four two-story buildings that each contain four units. The respondents’
unit is located on the second floor in one of the two-story buildings, Building D. The
stairway leading to the respondents’ unit is located in the interior of the building,
between two parts of the building separating the units. If one climbed up the stairway
and turned to the left, he would enter the landing or entryway to the respondents’ unit,
which is known as the balcony. Both the interior side of the balcony, which abuts the
stairwell, and the exterior side, which is open to the elements, are delineated by wooden
railings. The other two sides of the area are the exterior walls of the units.
4.
Section 4.4 of the Declaration of Condominium of Villager Apartments Unit
No.1 (declaration) provides that the common elements shall include:
(e) The land on which the building housing the units is located and the
remaining lands included in the condominium property ….
(f) All parts of improvement on said land not located within the
condominium unit.
…
(h) All external walls of the units other than the internal surfaces thereof.
(i) All stairways and external walks.
(j) Balconies and terraces constitute a part of the common elements but
nevertheless each is designed and laid out to serve exclusively a
contiguous condominium unit, therefore VILLAGER APARTMENTS, INC.
thereby offers to dedicate the balconies and terraces to such use and the
conveyance of any condominium unit by VILLAGER APARTMENTS, INC.
shall be presumed a dedication of all the balconies to such exclusive use.
5. Section 13 of the declaration sets forth the maintenance responsibilities of the
association and unit owners for the condominium units and parcels. Pursuant to section
13.1, the association is responsible for maintaining, among other things, “[a]ll portions of
the units (except interior wall surfaces) contributing to the support of the buildings, which
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portions shall include, but not be limited to, the outside walls of the buildings, and load
bearing columns.” Section 13.3 provides that “[t]he maintenance and operation of the
common elements shall be the responsibility of the Association and a common expense.”
Section 13.2 sets forth the responsibilities of the unit owner as follows:
(a) To maintain in good condition, repair and replace at his expense,
air conditioning and heating unit and balony (sic) or terrace serving each
unit, and all other portions of the unit, except those portions to be
maintained, repaired and replaced by the rights of other unit owners.
(b) Not to paint or otherwise decorate or change the appearance of
any portion of the exterior of the buildings.
(c)) To promptly report to the Association any defects or need for
repairs, the responsibility for the remedy of which is that of the Association.
(d) No condominium parcel owner shall make any alterations in the
portions of the buildings which are to be maintained by the Association or
remove any portion thereof or make any additions thereto or do any work
which might jeopardize the safety or soundness of the buildings or impair
any easements without first obtaining approval from the Board of Directors of
the Association. (e.s.)
A. BALCONY FLOOR
6.
Mrs. Dowling purchased the condominium unit in November of 2001 for
$30,000. The Dowlings spent approximately $40,000 to make repairs and improve the
unit. As part of their improvements, the respondents decided to “freshen up” the balcony
area by buying a polypropylene carpet to cover the wood floor in the balcony area.
Polypropylene carpet is a type of indoor/outdoor carpet made of recycled plastic and is a
form of, or similar to, outdoor carpets such as Astroturf. The carpet is designed to shed
water.
7. Because the paint on the first floor was peeling and the area was not attractive,
the respondents not only carpeted their balcony, but carpeted the stairs and the
downstairs landing as well. The carpeting remained in place for approximately two years.
The respondents never sought or received approval from the association for the carpeting.
8. In the summer of 2003, the association had a termite inspection performed by a
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Sarasota Termite Company. The board was advised that carpeting on the exposed wood
floors would retain moisture, causing mildew and wood rot. As a result of the advice, the
board voted to remove all carpeting from the wood floors in the common elements.
9. As a result of this decision, the respondents were given notice that they had to
remove the carpeting from their balcony.
When respondents failed to remove their
carpeting after being given three notices to do so, the association removed the carpeting in
September of 2003.
10. After the removal of the carpeting, the respondents notified the association that
the flooring next to their door was dangerous and needed to be repaired immediately. The
floor had areas that would give when any weight was put on it and had areas of rot. After
waiting forty-five days for the association to make repairs to the balcony floor, respondents
filled in the holes with Masonite and put down fitted plywood panels over the entire balcony
floor area. The respondents also put down a runner over the plywood, but removed it
when requested to do so by the association.
11. The association told the respondents to remove the plywood. The respondents
would not remove the plywood because the flooring under the plywood was not safe and
the association was not ready to make the needed repairs to the floor.
12. The association removed the plywood and made repairs to the flooring in
September of 2004.
B. LIGHT FIXTURES
13.
Shortly after the Dowlings moved into their unit in 2001, they requested
approval to change the light fixtures on the exterior ceiling. The association approved the
replacement of the lights on November 15, 2001. The approved lights were described on
the Request for Change form as “sm. crystoy (sic) type.” Slightly over two years later, and
5
without seeking permission from the association, the respondents installed the light
fixtures that are the subject of this proceeding. The lights were apparently installed near
the beginning of 2004, after the association removed the carpet from the balcony. Mr.
Friday, the association’s regular maintenance man, installed the light fixtures.
14. The light fixture over the balcony hangs from a chain about a foot or so below
the ceiling. The chain attaches near or at the ceiling then droops back down, like a swag,
and is reattached to the ceiling a few feet away. The fixture itself appears to be of clear
glass, and is cylindrical or perhaps hexagonal in shape. It contains three small light bulbs.
The light fixture over the balcony is attractive and unobtrusive, though larger and more
noticeable than the association’s standard light fixture. The light fixture the respondents
installed over the stairwell is similar, but without the swag.
15. The association’s standard light fixture for the entryways, including the balcony,
is a small box-like fixture, with a square black metal edging on top and a smaller square
bottom with black metal edging. The sides are slightly tapered and made of clear or white
translucent glass; the seams are black metal. The top lies flush with the ceiling; the
bottom consists of the same glass as the sides. However, although the association has a
“standard” light fixture, it has permitted other light fixtures to be installed, as evidenced by
the approval of the Dowlings’ small crystal light fixtures on November 15, 2001.
16. The standard lighting for over the stairs is a bare bulb.
The association
contends that the bare bulb is necessary to allow the maintenance man to be able to
change the bulb without great difficulty.
C. THE AWNINGS
17. On January 8, 2004, Barbara Olekas left her unit, located behind the Dowling’s
unit, and discovered awnings all over the ground and a workman ready to put the awnings
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up outside the Dowling’s unit. Mrs. Olekas, who is the Maintenance Director, advised the
workman that he could not put up the awnings because they had not been approved. Mr.
Dowling came out onto his balcony and Ms. Olekas also advised him that he could not put
up the awnings because he did not have approval. Mr. Dowling thought he had approval.
18. The two sought out Martha Clouset, who was also a board member. The three
of them then proceeded to the association office where Ms. Clouset found a request for
approval of the awnings on the wrong form. The respondents had filled out a Lawn
Maintenance Complaint form rather than the Request for Change form.
The Lawn
Maintenance Complaint form filled out by the respondents was not introduced into
evidence; however, Ms. Clouset also found a document signed by Mrs. Dowling dated
December 23, 2003, requesting permission to install awnings over the six windows.
19. When Ms. Clouset realized that the respondents had filled out the wrong form,
she filled in the information on the proper Request for Change form, stating that the
respondents requested “awnings.” Ms. Clouset and Mrs. Olekas immediately signed the
approval for the awnings, along with another board member, and the awnings proceeded
to be installed. The awnings are the same or similar in looks to the other awnings in the
condominium.
20.
There are six windows in the respondents unit.
When the association
approved of the “awnings” it intended to approve only of the six awnings that would go
over the windows. Respondents interpreted the approval of “awnings” to mean that he
had approval for all of the awnings which were spread out on the condominium grounds,
including the awning to go over the balcony opening.
Mr. Dowling had ordered the
awnings before he had received official approval from the association for them.
He
believed that because everyone else in the condominium had the same awnings, there
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would be no problem with the association approving the request.
21. All seven awnings were delivered to the condominium on January 8, 2004.
However, the awning over the balcony was installed about a week after the other awnings.
The original balcony awning was not sized correctly for it to be properly anchored to the
building, so it was unable to be installed at the same time as the others. When the awning
was correctly sized and subsequently delivered, it was installed.
The respondents
believed that all the awnings were installed with the approval of the association.
22. The association, meanwhile, was under the impression the seventh awning
over the balcony had never been approved. Barbara Olekas and Barbara Breazeale both
testified that an awning over the balcony would never have been approved by the
association. Ms. Breazeale testified that an awning over the balcony could not be properly
tied down and there would be more concentrated run-off from the awning onto the
common elements than without the awning. The buildings have gutters to direct the
rainwater to an appropriate disposal area. However, it does not appear that the installation
of the awning affected the gutter.
23. Although the association did not think that the respondents had received the
necessary approval for the awning over the balcony, they did not inform the respondents
of this fact. Instead, because the association had already filed a petition for arbitration
against the respondents, the issue was added to the other issues included in the
arbitration proceedings. An amended petition for arbitration was filed on March 22, 2004,
and included the allegation that respondents had an “awning placed on the back terrace
sliding glass door” that had not been approved by the association.
24. In their answer to the amended petition, the respondents addressed the awning
issue by stating, “Awnings were approved by the Association, copy enclosed, we have no
8
sliding glass door, wrong unit” Attached to the answer was a copy of the association’s
approval of the awnings. On April 21, 2004, the association replied to the respondents’
answer and asserted that awnings were not at issue.
25. On September 7, 2004, the association filed a status report on the violations
that they asserted the respondents had not yet cured. The association stated that certain
violations still existed, among them that “[r]espondents continue to maintain an awning
over their balcony which was not approved by the Petitioner.” This was the first time that
the awning over the balcony was mentioned.2
26.
The respondents did not object to the inclusion of the balcony awning as an
issue to be tried at the final hearing. However, the respondents were not given any notice,
until the final hearing, that the association’s written approval of the “awnings” on January
8, 2004, was not intended to include the approval of the awning over the balcony.
D. SELECTIVE ENFORCEMENT
27. The respondents raised the defense of selective enforcement as to the light
fixtures and awnings. The respondents presented evidence that showed a variety of light
fixtures were located throughout the condominium, primarily carriage lights located on the
side of a building next to the door. There were brass carriage lights, white carriage lights,
and black carriage lights. The respondents also established that there was a lamppost with
a light fixture on top located on the common elements in front of a unit in the villas. There
were also lights that have wind chimes hanging from them, and many, many types and
sizes of wind chimes hanging from porch ceilings. However, the respondents failed to
establish that any other unit had a light fixture similar to theirs on the balcony, porch or
2
It was not absolutely clear until the hearing that a “balcony” and a “terrace” were two distinct places, and
that the entryway to the respondents’ unit was considered the “balcony.”
9
similar area.
28. The light over the stairwell is not a part of the balcony area. In the other three
buildings the lights over the stairwell are bare light bulbs. The light over the stairwell in the
respondents’ unit is the only one that has a light fixture.
29. Respondents successfully showed that the awnings on their unit are the same
or similar to the awnings on every other unit. However, the issues were whether the
awning over the balcony was approved by the association and whether the association
had allowed an awning in a similar area. Although the association has allowed awnings to
be placed over the sliding glass doors leading to the terraces and patios, and over
windows, the respondents failed to prove that the association had ever allowed an awning
over a balcony. Of course, there was no evidence that the association had ever denied an
application to put an awning over a balcony. Apparently, there are only four balconies in
the condominium.
IV. CONCLUSIONS OF LAW3
The arbitrator has jurisdiction over this matter pursuant to section 718.1255(4)(a),
Florida Statutes, and section 718.1255(1)(a)1., Florida Statutes. Section 718.1255(4)(a)
requires a party to a “dispute” to petition for non-binding arbitration prior to instituting
litigation in court; section 718.1255(1)(a)1. defines a “dispute” to include any disagreement
over the authority of the board of directors to “[r]equire any unit owner to take any action,
or not take any action, involving that owner’s unit or the appurtenances thereto.” In this
case, the association sought an order requiring the respondents to remove the awning
over the balcony, to remove the plywood and other materials from the balcony floor, and to
remove the light fixtures attached to the balcony ceiling and over the stairwell. Thus,
3
Findings of fact are also included this section; the labels are for organizational purposes.
10
association is attempting to require a unit owner to take action involving the owner’s unit
and the appurtenances thereto.
I.
WHETHER THE RESPONDENTS VIOLATED THE DECLARATION
BY PLACING PLYWOOD OVER THE BALCONY FLOOR
Section 13.3 of the declaration of condominium states that “[t]he maintenance and
operation of the common elements shall be the responsibility of the of the Association and
a common expense.”
However, section 13.2(a) states that the unit owner has the
responsibility “[t]o maintain in good condition, repair and replace at his expense, air
conditioning and heating unit and balony (sic) or terrace serving each unit…” It is also the
unit owner’s responsibility to “promptly report to the Association any defects or need for
repairs, the responsibility for the remedy of which is that of the Association.” Section
13.2(c).
Additionally, section 13.2(d) warns a unit owner that he cannot “make any
alterations in the portions of the buildings which are to be maintained by the Association or
remove any portion thereof or make any additions thereto or do any work which might
jeopardize the safety or soundness of the buildings or impair any easements without first
obtaining approval from the Board of Directors of the Association.”
These provisions of the declaration indicate that the unit owner, not the association,
is responsible for the repair and maintenance of the balcony.
Petitioner apparently
believes that section 13.3 of the declaration, which states the association has the
responsibility for maintenance of the common elements, takes precedence over section
13.2(a) of the declaration, which requires the unit owner to repair and maintain the
balcony. However, it is a basic rule of construction when interpreting a declaration of
condominium, as well as other contracts and statutes, that a specific provision covering a
particular subject matter controls over a general provision. See, Mallory v. Ballantrae
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Condo. Ass’n, Arb. Case No 93-0265, Final Order (January 23, 1995), citing to Adams v.
Culver, 111 So. 2d 665, 667 (Fla. 1959). Therefore, the provision in section 13.2 giving
responsibility for the repair and maintenance of the balcony to the unit owner controls over
the provision giving the association the responsibility for repair and maintenance of the
common elements in general.
Nevertheless, the association contends that pursuant to section 718.108(1)(a), Fla.
Stat., it has the sole responsibility for maintaining and repairing the balcony area because
it is a common element, not a limited common element. Petitioner asserts that since the
balcony is, in fact, a stairwell landing accessible from the stairs as well as the respondents’
unit, it cannot be considered a limited common element.
Petitioner has not cited any authority for the proposition that a limited common
element can only be accessible from the owner’s unit.
The term “limited common
elements” is defined in section 718.103(19) as follows:
“‘Limited common elements’
means those common elements which are reserved for the use of a certain unit or units to
the exclusion of all other units, as specified in the declaration.” (e.s.) Section 4.4(j) of the
Villager Apartments’ declaration of condominium states as follows:
(j)
Balconies and terraces constitute a part of the common elements but
nevertheless each is designed and laid out to serve exclusively a
contiguous condominium unit, therefore VILLAGER APARTMENTS,
INC. thereby offers to dedicate the balconies and terraces to such
use and the conveyance of any condominium unit by VILLAGER
APARTMENTS, INC. shall be presumed a dedication of all the
balconies to such exclusive use. (e.s.)
Therefore, the balcony, which is to serve exclusively the contiguous unit, is a limited
common element. 4
4
The condominium’s governing documents provided to the undersigned do not describe the location of
the “balcony” or it perimeters, but the association in its pleadings and through the testimony of its
12
Petitioner contends that the balcony, as a common element, must be maintained
and repaired by the association pursuant to section 718.113(1), Florida Statutes.
However, that subsection provides as follows: “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
element or that the association shall provide maintenance... " (e.s)
In this case, the declaration provides in section 13.3 that the association is
responsible for the maintenance of the common elements; however, the declaration
identifies the balcony as a limited common element in section 4.4(j), and in section
13.2(a) specifically provides that the unit owner has the responsibility for the repair and
maintenance of the balcony.
Rather than mandating repair of the limited common
element balcony by the association as asserted by petitioner, section 718.113(1), Fla.
Stat., authorizes the inclusion in the declaration of the requirement that the unit owner
who has the right to exclusive use of the balcony be responsible for the repair and
maintenance of it.
The on-going battle between the association and the respondents regarding the
use and maintenance of the balcony apparently began when the association became
concerned with the deleterious effect that carpeting could have on the wooden stairs,
landings, and structural components of the balconies within the condominium. The
association is responsible for the repair and maintenance of the common element stairs
and landings and the structural elements of the building. The association advised the
respondents that the carpet over the balcony floor had to be removed because of
witnesses identified the balcony as the entryway outside the front door of the respondents’ unit. The
second story deck was identified as the “terrace.”
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possible termite or wood rot damage to the floor and structure of the balcony area.
When the respondents refused to remove the carpeting after several notices, the
association removed the carpeting. It also removed the carpeting from the stairs and
landing that the respondents had carpeted.5
After the carpeting was removed, the wood floor under it appeared to be
unstable. It gave when weight was put on it and had small areas of wood rot. Although
the respondents wanted to make the repairs, the association had asserted the right to
make any and all repairs to the balcony. Therefore, in accordance with section 13.2(c)
of the declaration, the respondents notified the association that the floor needed
immediate repair because it was dangerous in its present condition. The association
refused to make immediate repairs to the balcony floor because the contractor making
the repairs was working on other buildings. After approximately forty-five (45) days had
passed without the association making the necessary repairs, the respondents decided
to make certain repairs themselves as they felt that the floor was a hazard. The repairs
were not meant to be permanent repairs.
In September 2004 while this case was pending, the association removed the
plywood and made repairs to the floor. Therefore, the question concerning whether the
placement of the plywood over the floor prevented the association from repairing the
balcony floor could be considered moot.
However, the issue of whether the respondents violated the condominium
documents by placing the plywood over the floor without the association’s approval is
not moot.
5
The dispute between the association and the unit owner regarding the
Continental Towers v. Nassif, Arb. Case No 99-0866, Summary Final Order (February 8, 1995) held that
a unit owner is responsible for removing and replacing tile or any other covering installed over a balcony
floor when it is necessary to permit the association to fulfill its maintenance responsibilities.
14
responsibility for the repair and maintenance of the balcony is capable of repetition, and
the answer may be relevant in determining whether attorney’s fees are sought or
awarded.
Therefore, it is appropriate to address the issue at this time. Many of the
disputes that have arisen between these parties have occurred because the association
has not recognized the balcony area as a limited common element and the respondents
have not recognized the limitations imposed on them by the governing documents and
by condominium living in general.
In the pleadings, the association accused the respondents of turning the
entryway into “their own private balcony.” According to section 4.4(j) of the declaration,
it is their own private balcony, and according to section 13.2(a), the respondents have
not only the right, but the duty to repair and maintain it. They do not, however, have the
right to alter, add to, or repair the surrounding common elements or to do anything that
interferes with the association’s maintenance of those common elements.
When the respondents filled the depressed or rotted areas on their balcony with
Masonite and placed the plywood over the floor, it was a reasonable exercise of the
requirement in the declaration that the respondents repair and maintain the balcony.
The respondents’ action did not violate the condominium documents, and they did not
have to obtain permission from the association to make those repairs.
Section 13.2(d) provides that “[n]o condominium parcel owner shall make any
alterations in the portions of the buildings which are to be maintained by the Association or
remove any portion thereof or make any additions thereto or do any work which might
jeopardize the safety or soundness of the buildings or impair any easements without first
obtaining approval from the Board of Directors of the Association.” Respondents did not
alter or add to any portion of the building to be maintained by the association and did not
15
do any work that might jeopardize the safety of the building. Indeed, the work done by the
respondents was necessary to ensure the safe use of the balcony until the association’s
contractor could evaluate the area and determine the need for repairs to the structural
elements of the building or the common elements not included within the balcony.
By placing sturdy, fitted, plywood panels over the buckling, and in some places
rotted, surface of the balcony until the association could evaluate and repair the area, the
respondents were complying with the maintenance responsibilities set forth in section
13.2(a) of the declaration.
The actions taken by respondents did not prevent the
association from fulfilling its maintenance and repair duties on the structural elements of
the building. Therefore, the respondents actions did not violate the declaration.
II.
WHETHER RESPONDENTS HAVE VIOLATED SECTION 13.2(d) OF THE
DECLARATION BY INSTALLING NON-COMPLIANT LIGHT FIXTURES
IN THE BALCONY AREA AND OVER THE STAIRWELL AREA ADJACENT
TO THE BALCONY WITHOUT THE APPROVAL OF THE BOARD
The respondents clearly had no authority, or even claim of authority under the
declaration, to install any light fixture over the stairwell without the association’s
approval. Mr. Dowling observed that the area looked much better after he had installed
the light fixture. The undersigned may agree with Mr. Dowling’s assessment. However,
that is not the criteria for determining whether a certain activity violates the
condominium documents. The association explained that the lights over the stairwell
were intentionally maintained without light fixtures so that the bulbs could be easily
changed when they burned out. The Dowlings had absolutely no authority to install a
light fixture over the stairwell, a common element that is not part of the balcony, without
the board’s permission. Therefore, the Dowlings must remove it.
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The light fixture on the balcony ceiling presents a different situation.
As
discussed previously, the Dowlings are required by the declaration to repair, maintain,
and replace the balcony. The question is whether the light fixture on the ceiling of the
balcony is a part of the balcony that the Dowlings are required to maintain, and, if so,
whether the Dowlings were required to request permission from the association when
replacing the light fixture with another style of light fixture.
The light fixture has to be considered part of the balcony. Although there is
nothing in the condominium documents that defines the boundaries of the balcony, it
would appear logical to find that the upper boundary of the balcony is the same as the
upper boundary of a unit. According to section 4.6(a)1. of the declaration, the upper
boundary of a unit is defined as “[t]he horizontal plane of the undecorated finished
ceiling.” Since the light fixture, standard or otherwise, extends from the ceiling into the
balcony area, it must be considered part of the balcony, and thus the respondents’
responsibility to maintain, repair and replace.6
The question then is whether, as alleged by the petitioner, the respondents
violated section 13.2(d) by replacing the balcony light fixture with a different style of light
fixture without obtaining permission from the association.
When read together, subsections 13.2(a), (b) and (d) of the declaration indicate that
an addition or alteration does not have to receive approval by the association, if it is in an
area maintained by the unit owner, if it does not jeopardize the safety or soundness of the
building, if it does not impair any easements, and if it does not change the appearance of
any portion of the exterior of the building.
6
Rule 12, cited by petitioner, appears to support this interpretation. It states that exterior alterations and
repairs of the building are the responsibility of the association, but that “[a]ll outside lights,
awnings…patios, and additions and the care of same is the responsibility of the unit owner.” The balcony
17
As stated previously, section 13.2(a) states that the unit owner has the
responsibility to maintain the balcony serving the unit. Section 13.2(d) provides:
No condominium parcel owner shall make any alterations in the portions
of the buildings which are to be maintained by the Association or
remove any portion thereof or make any additions thereto or do any
work which might jeopardize the safety or soundness of the buildings or
impair any easements without first obtaining approval from the Board of
Directors of the Association. (e.s.)
This subsection requires a unit owner to obtain approval from the board before making any
alterations or additions “in the portions of the buildings which are maintained by the
Association,” or before doing any work which might affect the safety of the building. The
balcony, however, is not a portion of the building maintained by the association. Section
13.2(b) of the declaration states that the unit owner may not “paint or otherwise decorate
or change the appearance of any portion of the exterior of the buildings,” but the
association has not alleged a violation of section 13.2(b) in its amended petition, or in any
other papers, nor has it alleged that the installation of the light fixture has changed the
appearance of the exterior of the building. Additionally, the association has not claimed
that the installation of the light fixture is a material alteration or substantial addition to the
common elements that would require approval of 75% of the voting interests of the
association pursuant to section 718.113(2)(a), Florida Statutes. Petitioner has alleged
only that the respondents failed to comply with section 13.2(d) of the declaration by
installing a non-conforming light fixture in the balcony area.
The only provision of the declaration relating to alterations of the common elements
are sections 13.2(b) and (d). Section 13.2(b) forbids changing the appearance of the
exterior of the building, and section 13.2(d) requires that alterations and additions made to
light could be considered an outside light since it is outside the respondent’s unit, even though it is not a
light on the exterior portion of the building.
18
the parts of the buildings maintained by the association must be approved by the
association.
By specifically stating that those alterations and additions in areas
maintained by the association must be approved by the association, section 13.2(d)
implicitly states that alterations and additions in areas not maintained by the association do
not come within the purview of section 13.2(d) unless the work “might jeopardize the safety
or soundness of the buildings or impair any easements.” The plain language of this
section requires the conclusion that alterations and additions to the parts of the building
maintained by the unit owner are exempt from this subsection,7 unless the alteration or
addition might affect the safety of the building or interfere with any easements.8
In this case, the light fixture on the ceiling of the balcony is part of the limited
common element that the respondents must maintain and repair. Installing a light fixture
involves using, touching, and perhaps cutting and splicing the electrical wiring, which is a
common element and under the control of the association. The association has the right
to require anyone planning to handle the electrical wiring to obtain permission from the
board before doing so. Obviously, misuse of electrical wiring “might affect the safety and
soundness of the building.”
Clearly, the respondents should have obtained permission from the association
before changing the light fixture on the balcony because it involved electrical wiring and it
could have affected the safety of the building. However, in its amended petition and at the
hearing, the association’s only expressions of concern about the light fixture were that it
wasn’t approved pursuant to Section 13.2(d) and that it wouldn’t have been approved
7
Of course, it does not exempt the unit owner from compliance with any other provisions of the
declaration or any statutory provisions that might apply
8
Even if the provision were ambiguous, it would have to be interpreted in favor of the respondents. See
Palma v. Townhomes of Oriole Association, Inc., 610 So. 2d 112 (Fla. 4th DCA 1992)(ambiguity in
covenant should be resolved in favor of the homeowner); Norwood-Norland Homeowners’ Inc. v. Dade
19
because it wasn’t the “standard” light fixture.9 The association expressed no concern
about the safety of the light fixture, possibly because it was installed by the association’s
usual maintenance man, and never alleged or asserted that the installation of the light
fixture changed the exterior appearance of the building in violation of section 13.2(b) of the
declaration.
The question then is whether the respondents should be required to remove the
light fixture on the balcony and replace it with what was there previously solely because
they did not seek approval of the board before they installed it. When a unit owner has
failed to seek approval from the association for some improvement, the appropriate
remedy is to require the unit owner to fill-out an application and request the appropriate
approval, if the lack of approval is the only problem. Injunctive-type relief “may be no
broader than is necessary to restrain the unlawful conduct and should constitute the least
intrusive remedy that will be effective.”
Pediatric Pavilion v. Agency for Health Care
Administration, 883 So. 2d 927, 930 (5th DCA October 15, 2004), citing to Operation
Rescue v. Women’s Health Center, Inc. 626 So. 2d 664 (Fla. 1993). The least intrusive
remedy for the respondents’ failure to obtain approval from the association would be to
require them to apply for approval. However, the association has not alleged or shown
any concern regarding the safety of the fixture.
The only ground stated for refusing
approval of the light fixture, had approval been sought, was that the light fixture was not
the “standard” fixture. For the reasons set forth above, that is not a legitimate basis for
County, 511 So. 2d 1009 (Fla. 3d 1987)(ambiguous covenant must be resolved against the party claiming
the right to enforce the restriction).
9
The amended petition does not mention the light fixture specifically. It only refers to the decorations and
furniture on the common elements balcony, all of which, except for the light fixture were removed prior to
hearing.
20
refusing to approve of the light fixture under section 13.2(d) of the declaration.10
To summarize: Section 13.2(d) of the declaration states that the unit owner must
obtain permission to make alterations and additions in areas of the buildings which are
maintained by the association or where the safety of the building might be jeopardized.
Thus, even though the balcony is not in an area maintained by the association, the
respondents should have requested permission from the board to install the light fixture
because there could have been legitimate safety concerns.
However, under section
13.2(d), the requirement of board approval is to ensure that the installation of the light
fixture would have no detrimental effect on the safety of the building or interfere with any
easements. In this case, the association expressed no concerns about safety as a result
of the light fixture being installed. Therefore, the association’s stance that it would refuse
to approve of the fixture because it was non-conforming must be considered arbitrary and
outside the scope of its authority under section 13.2(d) of the declaration.
III.
WHETHER THE RESPONDENTS HAVE INSTALLED AND MAINTAINED
AWNINGS THAT HAVE NOT BEEN APPROVED BY THE ASSOCIATION.
The respondents installed an awning over the balcony opening without the
association’s permission.
However, the respondents believed that they had written
permission from the board for the installation of all their awnings until the hearing.
10
Additionally, it must be noted that the variety of the decorations, additions and alterations that have
been permitted by the association on the exterior of the buildings, entryways, and patios would make it
difficult for the association to declare that the installation of the light fixture was “demonstrably
antagonistic to the legitimate objectives of the condominium association.” Hidden Harbor v. Basso, 393
So. 2d 637, 640 (Fla. 4th DCA 1981), see also Mallory v. Ballantrae Condo. Ass’n, Inc., supra.
21
On the day the awnings arrived at the condominium, the respondents had
not received approval for the installation of the awnings although they had apparently
submitted two requests for approval. After going to the condominium office with the
board members it was discovered that one of the requests for approval was submitted
on the wrong form. That particular request was not entered into evidence; however,
one of the board members apparently transferred that request onto the proper form,
which was then approved by the necessary number of board members. The form filled
out by the board member in the presence of Mr. Dowling and another board member
simply requested “awnings.” The request for “awnings” then received the necessary
approval. The awnings were on the lawn for the board members to view. The form
filled out by the board member included no limitation on the number of awnings or on
the location of the awnings.
When the association first amended the petition to raise the issue of an
impermissible awning over the “back terrace sliding glass door,” the respondents
answered by stating that petitioner had the wrong unit and that the association had
approved of their awnings.
Respondents attached to the answer a copy of the
association’s approval dated January 8, 2004.
In the association’s reply to the respondents’ answer, petitioner suggested that
the awning was not at issue, stating: “As far as the issue regarding the awnings…a
review of the Associations (sic) petition provides that the same is not at issue at this
time. Therefore the Association is unaware why the Dowling’s (sic) have chosen to
respond and make the same an issue at this time.” The association clearly did not
counter the respondents’ assertion that the January 8th approval gave them permission
to install the awnings.
22
On September 7, 2004, after the association had been directed to notify the
arbitrator as to the status of the respondents alleged violations, including the awning
over the terrace, the petitioner filed a status report stating that the respondents were still
maintaining an awning over the balcony that had not been approved. This was the first
time the awning over the balcony was mentioned. Although the association resurrected
the issue of an unapproved awning, it did not address the respondents’ assertion that
the awnings had been approved or explain that the January 8, 2004, approval of
“awnings” was not meant to cover the balcony awning.
It was not until the hearing, when the witnesses testified that the approval of the
“awnings” was only meant to approve of the six awnings over the windows, that it
became clear that the awning over the balcony opening was not intended to be
approved by the association when it approved of the “awnings.” As a late-filed exhibit,
the association submitted a document signed by Ms. Dowling dated December 23,
2003, that requested approval for six awnings over the windows. It was not a document
included on the petitioner’s prehearing list of exhibits. The respondents’ request for
approval of the awnings that was on the wrong form was not introduced into evidence.
Although the respondents did not use the terms estoppel or waiver in their
pleading, they did allege that the board gave them approval for the installation of their
“awnings” and attached the document they relied upon.
Rather than answer this
affirmative defense, the association responded that the awnings were not an issue.
Months later, the association resurrected the issue of the unapproved awning, this time
indicating that the unapproved awning was over the balcony, rather than the terrace, but
still ignoring the respondents’ answer which alleged that the awnings were approved.
23
Once the association determined that it wished to pursue the issue of the awning
over the balcony, it should have replied to the respondents’ defense by explaining that
the approval of the “awnings” was an approval only of the awnings requested in the
December 23, 2003, document signed by Ms. Dowling and no others.
Affirmative
defenses based on factual matters that raise a new point require an avoidance by reply.
American Salvage & Jobbing Co. Inc. v. Salomon, 295 So. 2d 710 (Fla. 3d DCA 1974).
The Supreme Court in Moore Meats, Inc. v. Strawn, 313 So. 2d 660, 661 (Fla.
1975), quoting from an article by Henry Trawick, explained the purposed of an
“avoidance” in response to an affirmative defense, as follows:
Avoid means ‘to make legally void; to prevent the. . .effectiveness of.’ In
pleading, avoidance means ‘an allegation of new matter in opposition to a
former pleading that admits the facts alleged in the former pleading and
shows cause why they should not have their ordinary legal effect.’
In this case, the respondents asserted that the board had approved of their awnings and
attached a copy of the approval. The petitioner was aware that the board had indeed
approved of the “awnings” in the January 8, 2004, document, but instead of avoiding the
legal effect of that approval by alleging the additional facts necessary to establish that
the approval was only meant to be an approval of the awnings over the six windows, the
association said nothing.
Although the arbitration rules of procedure need not be construed in accordance
with the stricter standards of pleadings in the courts of the state -- the arbitration rules
do not even specifically require a reply in avoidance – the requirements of due process
24
still apply. The purpose of a plea in avoidance is to alert the respondent to facts not
previously mentioned that the petitioner intends to rely upon in defeating a defense.11
In this case, the document requesting approval of the awnings was filled out by a
board member, approved by the board as written, and contained no indication that the
board was approving only the awnings over the windows. The board did not specify the
number of awnings approved, it did not reference the document signed by Mrs. Dowling
to indicate that it was an approval of that request, nor was the request signed by Mrs.
Dowling attached to the approval.
The sole basis for the board’s position that the
January 8, 2004, approval of the awnings did not include the awning over the balcony,
was the December 23, 2003, document signed by Mrs. Dowling that was not mentioned
until the day of the hearing.
Certainly, the respondents had no way of knowing that the December 23, 2003,
request would be the basis for the board stating that the balcony awning had not been
approved. After all, the awnings were on the ground when the request for “awnings”
was approved, and there was a separate request for awnings that had been submitted
on the wrong form. Since the association, through its agents, wrote the request for
approval and chose not to designate the specific awnings being approved, the approval
of “awnings” must be read in the light most favorable to the respondents. See McClure
v. Montgomery, 556 So. 2d 759 (Fla. 1st DCA 1990)(“a contract must be construed
most strongly against the party who drafted it,” citing to Home Savings of America, F.A.
v. Roehner, 491 So. 2d 612 (Fla. 4th DCA 1986).)
11
Of course, in this case there was no intent to undermine the respondents defense by failing to mention
the December 23, 2003, request until the hearing. Clearly, counsel for the association was also unaware
of this document until the hearing as it was not on his exhibit list.
25
However, rather than find as a matter of law that the association approved of the
awning over the balcony when it approved of the “awnings”, it is more appropriate to
consider the matter one of mutual mistake.
It is apparent that the board did not
consider its approval of the “awnings” as an approval for the awning over the balcony,
and it is apparent that the respondents viewed the approval of the “awnings” as
approving of all of the awnings they were installing.
Although the board members who testified at the hearing stated that they
wouldn’t approve of an awning over the balcony because of run-off problems or
because it could not be secured properly, these matters were never appropriately
considered by the board and the respondents never had the opportunity to address the
board’s concerns.
Therefore, as to the awning over the balcony, the most equitable
solution is to allow the approval process to begin again.
The respondents must submit an appropriate application for approval of the
awning over the balcony to the board if they wish to keep the awning over the balcony.
The board shall consider the application on its merits. If the association intends to deny
the request, the association must explain the reasons for the denial and allow the
respondents to address those problems before the board reaches a final decision. For
example, if the board is not sure that the awning is properly affixed to the building, the
respondents should be allowed to address this concern or be permitted to correct the
problem. If the board denies approval of the awning, it must base its denial on the
unique characteristics of that awning being located in that particular place.
The
association shall explain why an awning over the balcony cannot be approved whereas
awnings located over windows, terraces, and patios are acceptable.
Based on the foregoing, it is
26
ORDERED:
1. Petitioner’s request for an order requiring removal of the plywood over the
balcony floor is moot; however, the association’s request to find that the respondents
acted in violation of the condominium’s governing documents when they put the
plywood panels over the balcony floor is denied.
2. Petitioner’s request for an order requiring removal of the light fixture over the
stairwell is granted. Respondents shall have twenty (20) days to remove the light fixture
they installed over the stairwell and replace it with the original bare-bulb light fixture. If
respondents have not removed that light fixture within twenty (20) days from the date of
this order, the petitioner is authorized to remove it and respondents shall pay the
association’s reasonable costs of removal and replacement.
3. The petitioner’s request for an order directing the respondents to remove the
light fixture on the ceiling of their balcony is denied. Petitioner failed to allege or prove that
the light fixture was a safety concern or interfered with any easements, which would have
been necessary to require the board’s approval pursuant to section 13.2(d) of the
declaration.
4.
Petitioner’s request for an order requiring the respondents to remove the
awning over the balcony is denied; however, the respondents must either remove the
awning over the balcony or they must submit, within twenty (20) days from the date of this
order, a request for approval of the awning. The board will consider the request and shall
allow the respondents to respond to any problems the board may have in granting the
request. If the board denies approval of the awning, the denial must be in writing, and it
shall specifically explain why the awning was not approved based on the unique
characteristics of that awning located in that particular place.
27
If the board denies
approval of the awning after considering all of the facts, the respondents shall remove the
awning.
DONE AND ENTERED this 9th day of February 2005, at Tallahassee, Leon
County, Florida.
_________________________________
Diane A. Grubbs, Arbitrator
Department of Business and
Professional Regulation
Arbitration Section
Northwood Centre
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 to the following persons on this 9th day of February 2005:
Gary Schaaf, Esquire
Becker & Poliakoff, P.A.
630 South Orange Avenue
Third Floor
Sarasota, Florida 33426
Timothy and Edith Dowling
6018 Lilli Way
Bradenton, Florida 34207
_________________________________
Diane A. Grubbs, Arbitrator
28
Right to Appeal
As provided by section 718.1255, F.S., a party who is adversely affected by this
final order may, within 30 days of the entry and mailing of this final order, file a
complaint for a trial de novo in a court of competent jurisdiction in 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 and Costs
As provided by section 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 61B45.048, 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.
29