Naples Daily News Q&A Column, October 22, 2017

By October 22, 2017News, Questions & Answers

Q: Our condominium documents provide that every owner is entitled to a parking space, either covered or uncovered. An owner is requesting to install a carport over his parking space so that is becomes a covered parking space. Can the Board of Directors approve this improvement or do the members need to approve this improvement as well?

A. B., Naples

A: The answer to this question depends on a number of factors. First, I would want to review the original condominium documents and specifically any original site plan or survey indicating which, if any, of the original parking spaces were intended to be covered. Many original site plans will specify which parking spaces should be covered. This is important because many condominiums alter the common elements over time from the original development plans with or without proper approval and deriving the intent of the developer from these site plans can be helpful.

Next, if there was never a carport over this parking space, and the space is a common element or limited common element, it would be a material alteration to install the carport. Because you are altering the appearance of the parking space by adding a roof, the alteration must be analyzed as a material alteration. Florida Statutes section 718.113 provides that material alterations must be approved pursuant to the terms of your specific Declaration of Condominium and, if there is no specific provision in the declaration, the alteration must be approved by at least 75 percent of the entire membership.

That being said, a review of your documents is critical because most condominium documents provide for a specific procedure and/or threshold for approval requirements. Depending on the cost of the carport, it may not require membership approval or, depending on the specific documents, it may be a relatively low voting threshold. I have also seen documents where material alterations requested by a unit owner only require Board approval, but material alterations initiated by the Board are subject to the membership voting requirements. Thus, I would highly recommend you have a licensed Florida attorney review your specific condominium documents and provide an opinion on any approval requirements.

Q: Due to Hurricane Irma, my neighbor’s tree is now seriously leaning in the direction of my home – more than 45 degrees. It is large enough that it could hit my roof and some of the root system is now visible and uncovered due to the storm. I am concerned that this tree will come down on my roof during a strong storm let alone another hurricane event. What should I do?

T. R., Bonita Springs

A: We wrote an article a few weeks back concerning removal liability for trees knocked down due to the hurricane. The general rule is that a tree owner is not responsible for damage to a neighbor’s home or lot when the tree is knocked down due to an act of God. One of the minor points is that the tree owner can be liable for damage caused by a fallen tree if the owner is negligent. Negligence is a very factual issue and depends on specific facts and circumstances. Here, my recommendation would be to notify the owner in writing that the tree is currently leaning toward your home and the root system has created a dangerous situation for your home and your family. If the tree is maintained by a homeowners’ association, you should notify that entity as well because this could be construed as a maintenance issue.

The reality is that if the tree hits your home, you will likely have insurance coverage and will pay a deductible. If this tree is the only cause for the deductible, you may be able to demonstrate that your home would be fine but for the owner’s failure to properly maintain his tree. If you can demonstrate this, your insurance company may seek to recover any payments from the neighbor and you may recover your deductible as well. The big “catch” is that the owner must truly be negligent, which means you will really need an expert’s opinion, if possible, prior to experiencing any damage concluding that the neighbor’s tree is a danger today. If the expert opinion is that the tree does not currently pose a threat, you obviously will have a much weaker case.

Q: My condominium neighbor is loud. Either his TV or his stereo is on late into the evening and I am constantly hearing raised voices. It often keeps me awake and it is bothersome. My condominium association is not doing anything about this. Do I have any other recourse?

R. P., Marco Island

A: This is a difficult situation because many condominiums do not have a specific rule or covenant concerning noise, but rather only have a broad prohibition on nuisances. As you can imagine, there is no bright line when noise becomes a nuisance when the noise only affects one other unit and a condominium association is placed in a difficult position when it becomes asked to deal with every noise complaint. The definition of “loud” can be subjective. As a result, many condominium associations would take the position that this noise problem is a private dispute between unit owners and does not constitute a violation of any condominium covenant.

As a unit owner, you are a party to the declaration of condominium and can enforce certain provisions in the same manner as the condominium association. Thus, if you believe the noise level constitutes a nuisance or otherwise violates the covenants, you can bring your own action against the neighbor to seek judicial relief. Florida law provides that this type of dispute must be brought as an arbitration action before the Division of Florida Condominiums, Timeshares and Mobiles Homes and not in a county or circuit courtroom. As a result, I would encourage you to seek counsel from a licensed Florida attorney to determine which covenants are applicable, and if you want to pursue relief separate from the condominium association, to determine whether arbitration is appropriate for your situation.