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 INDIAN PINES VILLAGE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No JACQUES L. INNOCENT and LEILA M. INNOCENT, Respondents. / FINAL ORDER DISMISSING PETITION FOR ARBITRATION The petitioner filed this action for non-binding arbitration, alleging that respondents Jacques L. Innocent and Leila M. Innocent have allowed the number of persons occupying their unit to exceed the maximum occupancy permitted by the declaration of condominium, when the respondents gave birth to a child in the autumn of The declaration of condominium restricts occupancy to two persons per each bedroom contained in the unit. It is alleged that the respondents own a two bedroom unit, and therefore may have a maximum of four persons living in it at one time. The petition alleges that the respondents now have five persons living in their unit, subsequent to the birth of the new child. The petitioner does not state whether the other two persons residing in the unit (in addition to the respondents and their new baby) are also children of the respondents. Additional persons (beyond two persons per bedroom) may visit for a period not in excess of thirty days per calendar year, pursuant to the declaration of condominium. The petition asks the arbitrator to enter a finding that the Division of Florida Land Sales, Condominiums, and Mobile Homes Arbitration Section has the authority to require the 1

2 respondents to comply with the requirements for unit occupancy established in Article XX, Section 20 of the declaration, by reducing the number of people living in their unit to a maximum of four. The only disputes eligible for arbitration are those which fall within the definition of dispute set forth in Section (1), Florida Statutes. The pertinent portion of that section (as amended, effective October 1, 1997) provides,... Dispute does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. (Emphasis added) Prior to October 1, 1997, the Division had the authority to hear cases involving eviction of tenants. The word tenant is defined as [a] dweller in a place; an occupant, and [o]ne who holds or possesses lands, tenements, or sometimes personal property by any kind of title. 1 Tenant is further defined as [i]n the broadest sense, one who holds or possesses lands or tenements by any kind of right or title, whether in fee, for life, for years, at will, or otherwise. 2 In the present case, the petitioner primarily seeks the removal of unapproved tenants or non-owner occupants from the unit. Consequently, this dispute is not within the arbitrator s jurisdiction. Rule 61B , Florida Administrative Code, provides that the arbitrator shall 1 The American Heritage College Dictionary, 3rd Ed.(1997). 2 Black s Law Dictionary, Abridged 5th Ed. (1983). 2

3 reject a petition if it is determined to be outside the jurisdiction of the division. Accordingly, the petition will be dismissed. Dismissing this petition for lack of subject matter jurisdiction will not, however, leave the association without a remedy. The association has standing to institute enforcement proceedings directly against the tenants in its own name, as provided by section (1), Florida Statutes. Section (1), Florida Statutes, specifically provides that each tenant residing in a condominium shall be governed by, and shall comply with, the provisions of the Condominium Act and the governing documents, including the declaration of condominium. Section (1), Florida Statutes, expressly authorizes an association to commence an action in court for injunctive or other relief against any tenant or other invitee to require the tenant or other invitee to comply with the governing statute or documents, stating in pertinent parts: (1) Each unit owner, each tenant and other invitee, and each association shall be governed by, and comply with the provisions of this chapter, the declaration, the documents creating the association, and the association bylaws and the provisions thereof shall be deemed expressly incorporated into any lease of a unit. Actions for damages or for injunctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against: (a) The association. (b) A unit owner. (c)... (d)... (e) Any tenant leasing a unit, and any other invitee occupying a unit. The statute thus plainly confers standing on the association to institute an action in its own name directly against the tenant/invitee, seeking compliance with the documents. In the instant case, the declaration expressly prohibits occupancy of the unit by more than two persons for each bedroom contained in the unit. As stated by the court in Pepe v. Whispering Sands Condominium Association, Inc., 351 So. 2d 755 (Fla. 2nd DCA 1977): 3

4 A declaration of a condominium is more than a mere contract spelling out mutual rights and obligations of the parties thereto. It assumes some of the attributes of a covenant running with the land, circumscribing the extent and limits of the enjoyment and use of real property. Stated otherwise, it spells out the true extent of the purchased, and thus granted, use interests therein. In order to give effect to the provisions of the declarations of condominium, the legislature, through its passage of section , Florida Statutes, has determined to confer standing on condominium associations for the purpose of enforcing the documents against tenants or other invitees in violation of the controlling documents. An association is responsible for the operation and management of the condominium, and is elsewhere in the Condominium Act given the power to sue third persons regarding the operation of the condominium. See, Section (1), Florida Statutes, and Section (3), Florida Statutes. Therefore, given the association's broad responsibility to operate the condominium, and given its authority to enforce the documents against tenants and other persons, it follows that an association has the standing to remove a tenant or other invitee where the same is unapproved, constitutes a nuisance, or is otherwise in violation of the condominium documents. Even aside from the fact that the statute confers such standing on the association, case law is supportive of the conclusion that under judicial concepts of standing, an association has the requisite interest to maintain an action against a tenant. Review, Jamlynn Investments Corporation v. San Marco Residences of Marco Condominium Association, Inc., 544 So. 2d 1080 (Fla. 2nd DCA 1989), in which the court determined that a tenant had standing to sue a condominium association for injunctive relief in a dispute involving parking spaces. In concluding that the tenant had standing, the court stated as follows: The concept of standing has been defined in a broad sense as having a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. [Citation omitted]. Standing is not determined by first finding whether privity 4

5 exists. General Development Corp v. Kirk, 251 So.2d 284, 286 (Fla. 2nd DCA 1971). Rather, a party has standing when it has such a legitimate interest in a matter as to warrant asking a court to entertain it. [Citations omitted]. Thus, one has standing where there is a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. [Citation omitted]. [Id. at 1082]. [emphasis added]. An association, given its comprehensive rights and responsibilities both under the statute and documents, plainly has sufficient interest in the enforcement of its documents to confer standing to evict tenants/invitees. As a final note, there is no evidence in the legislative history that the Legislature, in determining to delete from the jurisdiction of the Division arbitrators those disputes involving the eviction of tenants through its enactment of the 1997 amendments to section , Florida Statutes, intended to eliminate, rather than simply to modify, any remedies available to associations. Rather, jurisdiction of tenant eviction cases was shifted from the Division to the courts. Eviction of disruptive or unapproved tenants was a remedy commonly granted to associations in the course of Division arbitration cases over the past 5 years, where the declaration provides that a lease entered into with an unapproved tenant was void. See, for example, Southpointe Condominium Association, Inc. v. Saggar, Arb. Case No , Final Order (November 17, 1995)(nuisance tenant evicted upon the petition of the association); BPCA Condominiums Association, Inc. v. Capano, Arb. Case No , Final Order (April 14, 1994)(where the unit owners intentionally violated the documents requiring prior association approval of tenant, the tenants were evicted, and the owners were ordered to cease renting to unapproved tenants); Westlandia Condominium Association, Inc. v. Miro, Arb. Case No , Final Order (December 30, 1993)(unapproved tenant ordered to vacate unit); Versailles Gardens II Condominium Association, Inc. v. Cadenas, Arb. Case No , Final Order (January 17, 1997)(nuisance and unapproved tenants ordered evicted). The Legislature, in 5

6 shifting this class of disputes to the courts, did not intend to eliminate the ability of an association to seek this remedy, but simply directed associations to a different forum. Rule 61B (2), Florida Administrative Code, provides that the arbitrator shall reject a petition if it is determined to be outside the jurisdiction of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, Arbitration Section. It is therefore ORDERED: The petition for arbitration filed in case number is DISMISSED for lack of jurisdiction and may be filed in court. DONE AND ORDERED this 1st day of May, 1998, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. 6

7 CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to: Deborah L. Ross, Esq., Wackeen, Cornett, Googe & Ross, P.A., 401 E. Osceola St., Stuart, FL 34994; and Jacques and Leila Innocent, Unit I-7 Indian Pines Village Condominium, 6020 Indrio Rd., Apt. I-7, Ft. Pierce, FL 34951, this 1st day of May, Leslie O. Anderson-Adams, Arbitrator 7