Boca Daily News Q&A Column, September, 2017

By September 1, 2017News, Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.

Q: I am an owner of a condominium unit in a residential community in Boca Raton which is comprised of 10 separate condominiums, all of which are governed by one condominium association. Recently, the board of directors voted to commence a community wide construction project to repaint all of the condominium buildings, demolish and rebuild the community’s office building, repair balconies and replace the roofs on the condominium buildings. I objected to some of the planned repairs and replacements. As a unit owner who will be sharing the costs for the work, do I have the right to vote to approve the construction project?

J.D., Boca Raton. Florida.

A: Generally speaking, if the work amounts to the association’s performance of its maintenance, repair and replacement duties, a unit owner vote is not required. However, in the event the work amounts to a material alteration, modification, or substantial addition to any part of the common elements, then unit owner approval is required. As to your community, you may wish to review the declarations of condominium to determine if there are provisions in place which define “alteration,” “material alteration or modification,” or a “substantial addition,” as compared to “routine maintenance.” If the declarations of condominium are silent on the subject matter, then the Florida Condominium Act fills in the proverbial blanks.  §718.113(2)(a) of the Act provides that in a single condominium community, the approval of 75% of the total voting interests of the association is required; while under §718.113(2)(b) in a multi-condominium community, the approval of 75% of the total voting interests in the affected condominium(s) is required. As simple as it may sound, please be mindful that the question you ask has been the subject matter of many appellate and arbitration decisions, a detailed discussion of which is beyond the scope of this article. Therefore, you may wish to consult with an attorney of your choice who is experienced is such matters. However, I will explain the general highlights of the main cases, and give specific examples of decisions relating to your question, subject to the caveat that each case has to be decided on its own facts.

What constitutes a “material alteration” or “substantial addition” to the common elements has been defined in one of the leading cases on the subject to mean “. . . to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance. Therefore, as to the scope of the work in your community relating to the common elements at issue, the inquiry is whether the work preserves the existing look and appearance, maintains the same functions, and/or maintains the same or substantially similar use of that of the existing buildings or other component of the common elements. By way of example, the Division has held that remodeling a clubhouse by adding more windows, installing a new kitchen where none previously existed, replacing a wood burning fireplace with an electric fireplace, were material alterations which required a unit owner vote. Conversely, the Division has also found that work done to elevators; sundecks and pool railings; an existing community room kitchen, lobby flooring, existing boat docks and hallway flooring were required to preserve the common elements and did not require the vote of the unit owners. In yet another case, the Division found that the association’s demolition of its old maintenance building and replacement of it in a different location less prone to flooding, did not constitute a material alteration which required a unit owner vote, because the replacement was performed pursuant to the Association’s duty to maintain, repair and replace the common areas. In regard to preserving the look of a building’s size, shape and exterior appearance, the Florida appellate courts and the Division have consistently found that changes in the color of the paint on the exterior of the buildings amount to a material change to the common elements which requires unit owner approval. The above-described decisions are not without exceptions. The Florida appellate courts have found that if an association can establish that in the performance of its maintenance, repair and replacement duties relating to one component of the common elements, a material alteration or substantial addition to a different component of the common elements was required, then such an alteration or substantial addition will be viewed as a function of the association’s maintenance, repair and replacement duty for which no unit owner approval is required (e.g., in one appellate decision, it was held that  the association’s addition to a seawall in an area where one did not previously exist for the purpose of stopping and preventing further damage and erosion of the other abutting common elements amounted to the association’s performance of its duty to maintain the eroding common elements as such and no  unit owner approval was required).

From the perspective of a condominium association, failing to make the right decision on your question is risky. In the event that an association fails to secure the requisite unit owner approval for what turns out to be a “material alteration or substantial addition,” and decides to impose a special assessment to pay for the unapproved work, appellate decisions have invalidated such special assessments when objectioning unit owners refused to pay and were then sued by the association in special assessment lien foreclosure action.   

Good luck!

Ronald E. D’Anna, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.