STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES. v. Case No.

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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 SCOTT S. LIBERMAN, Petitioner, v. Case No LA MIRAGE OF HARBOR VILLAGE CONDOMINIUM ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER This order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to dispose of a case summarily if no disputed issues of material fact exist and no meritorious defenses have been presented. On July 18, 1997, Scott S. Liberman (petitioner or unit owner) filed a petition for arbitration against La Mirage of Harbor Village Condominium Association, Inc. (respondent or association). The unit owner seeks an order requiring the association to repair termite and water damage to an exterior boundary wall of an addition to his unit. Procedural Statement The petition for arbitration was filed on July 18, On September 9, 1997, an order was entered requiring the parties to participate in mediation. On November 5, 1997, a status report was filed by the unit owner stating that no mediation session had yet taken place and alleging that the association was being uncooperative in scheduling the mediation. On November 18, 1997, the case was reassigned to the undersigned 1

2 arbitrator. On December 23, 1997, an order was entered requiring the unit owner to file a status report. On January 8, 1998, the unit owner filed a status report again alleging that the association was not cooperating in the scheduling of a mediation session. On January 23, 1998, an order was entered vacating the order requiring mediation, and ordering the association to file an answer to the petition for arbitration. On January 23, 1998, subsequent to the entry of the order vacating the mediation order, the association filed a supplemental response to the unit owner s status report, stating that the association had consulted with the unit owner, and both parties agreed that a mediation conference should not be held until the association s insurance carrier determined whether or not insurance coverage was available. In response to the association s supplement to the status report, on February 16, 1998, an order was entered placing the case in abeyance to allow mediation to take place following a determination of the availability of coverage by the association s insurance carrier. On April 1, 1998, the unit owner filed a status report alleging that the association had failed to contact him to schedule a mediation session, and requesting that the case be reset for arbitration. On May 13, 1998, an order was entered vacating the order requiring mediation, and again directing the association to file an answer to the petition. On May 26, 1998, the association filed an answer to the petition. On June 30, 1998, the unit owner was ordered to supplement his petition by filing photographs and a diagram of the addition to his unit, and specifically of the wall at issue. On August 20, 1998, an order was entered requiring the unit owner to show cause why the petition should not be dismissed due to his failure to file the supplemental information required. On August 28, 1998, the unit owner filed what appeared to be a diagram of the addition, but no photographs. 2

3 Findings of Fact The petitioner/unit owner seeks to require the association to repair termite and water damage in what he refers to as an exterior boundary wall of an addition to his unit. The wall surrounds what was originally a screened patio/terrace area, and it was built when the patio was enclosed. The patio enclosure has three sides, with the fourth side consisting of the exterior rear wall of the unit s original structure. It is undisputed that the wall in question is part of an addition to the unit, which was built by unit owner s predecessor-in-interest to the unit and was approved by the association at the time it was built. However, at the time the association approved the addition, no agreement was made as to who would bear the responsibility for its upkeep. The association alleges that the wall in question is not an exterior boundary wall, as referred to in Section 5.02 of the declaration of condominium, and that therefore, the wall is not a portion of the common elements which must be maintained by the association. Conclusions of Law The issue to be determined by the arbitrator is whether the maintenance and repair of the wall is the responsibility of the association or the unit owner. Case law on this particular point appears to be non-existent. Section 2.05 of the declaration of condominium for La Mirage of Harbor Village Condominium defines the term common elements as... that portion of the Condominium Property not included in the units... Section 2.14 of the declaration defines limited common elements as...those Common Elements which are reserved for the use of a certain Unit or Units to the exclusion of other Units. Unit is defined in Section 2.17 of the declaration as a part of the Condominium property which is to be subject to private ownership, as designated 3

4 in the Declaration, and shall consist of land and improvements thereon. Section 3.03 of the declaration states, in pertinent part,: Each Unit is identified as set forth in Exhibit 2 attached hereto; provided however, if any Unit or type of Unit shown in Exhibit 2 hereto permits or allows the construction of such Unit from a modified or alternate plan for perimeter walls, then, such Unit or Units, as the case may be, shall be identified, in dimensions, by their actual construction by the Developer. In horizontal dimension, such Unit consists of the area bounded by the unfinished interior perimeter walls of each such Unit. (Emphasis supplied.) The definitions contained in Section 718,103, Florida Statutes, are similar to those contained in the declaration: (8) Common elements means the portions of the condominium property which are not included in the units. (19) Limited common elements means those common elements which are reserved for the use of a certain condominium unit or units to the exclusion of other units, as specified in the declaration of condominium. (26) Unit means a part of the condominium property which is subject to exclusive ownership. A unit may be in improvements, land or land and improvements together, as specified in the declaration. Section 3.04 of the declaration states: Where a terrace, balcony, patio or porch serves only one Unit, the horizontal and vertical boundaries of the Unit shall be extended to include such structures, but no terrace, balcony, patio or porch may be enclosed or altered in any manner, except with the written consent of the Association. (Emphasis supplied.) However, Section 5 of the declaration states: Common elements include the following items: 5.02 All parts of the Improvements which are not included within the Units. Exterior boundary walls shall be deemed not included within the Units. (Emphasis supplied.) 4

5 With regard to who bears the responsibility for maintenance of common elements and units, the declaration provides as follows: The maintenance of the Common Elements shall be the responsibility of the Association No Unit Owner shall make any alteration, decoration, repair, replacement, change or paint, nor place any screens, jalousies or other enclosures on patios or any other parts of the Unit, Common Elements, Limited Common Elements or Condominium Building without the prior written approval of the Association. All such requests shall be compatible with existing structures Each Unit Owner agrees as follows: To Maintain in good condition and repair his Unit and all interior surfaces within or surrounding his Unit, (such as the surfaces of the walls, ceilings, floors) whether or not a part of the Unit or Common Elements, and maintain and repair the fixtures therein and pay for any utilities which are separately metered to his Unit. (Emphasis supplied.) In the event the Owner of a Unit fails to maintain the said Unit and Limited Common Elements, as required herein... the Association shall have the right to proceed in a Court of equity for an injunction to seek compliance with the provisions hereof... (Emphasis supplied.) Every Unit Owner shall maintain, repair and replace, at his own cost and expense, all portions of his Unit requiring maintenance LIMITED COMMON ELEMENTS.... Any expenses of maintenance, repair or replacement shall be either treated and paid for as a part of the Common Expenses of the Association but shall be assessed against the individual Unit Owner and Unit to which such Limited Common Elements are appurtenant or assigned, or paid directly by the affected Unit Owner. Repairs to owner-installed additions to units do not appear to have been contemplated by the drafters of the declaration of condominium. In one appellate case, 5

6 the court held that where it was not clear from the condominium documents whether limited common elements such as balconies and exterior closet doors were the responsibility of the unit owners to maintain, repair and maintenance of these items fell to the association. Cedar Cove Efficiency Condominium Association, Inc., v. Cedar Cove Properties, Inc., 558 So.2d 475 (Fla. 1 st DCA 1990). Prior arbitration cases have held that where Jacuzzis, planters, fences and sundecks which were part of the original construction of the condominium had to be removed to repair the underlying concrete slab and/or the roof, the association was responsible for removing and replacing the removed items. Towner v. Aldea Mar Condominium Association, Inc., Arb. Case No , Final Order (September 24, 1996); Arena Lindey Lodge & Vidal v. Cricket Clubhouse Condominium Association, Inc., Arb. Case No , Final Order (July 21, 1997). However, the facts of the instant case are different from those cited above, in that the patio enclosure was built by a previous owner of the unit. Prior arbitration cases have held that where unit owners installed improvements such as flooring on the common element terraces, and there was no agreement that the association was to perpetually maintain and replace these improvements (although the association had approved their installation) the owner, as the sole beneficiary of the improvements, was responsible for removing and replacing them when the association needed to perform maintenance on the underlying concrete slab or roof. Carriage House Condominium Association, Inc. v. Haya, Inc., Arb. Case No , Partial Summary Final Order (January 6, 1997); Salamone v. Golden Horn Condominium Association, Inc., Arb. Case No , Summary Final Order (July 17, 1997). 6

7 In the instant case, it is not necessary to decide whether the wall in question is a part of the unit or a part of the limited common elements appurtenant to the unit. In either event, the declaration permits the cost of maintenance of limited common elements to be assessed against the individual unit owner and unit to which such limited common elements are appurtenant, or paid directly by the affected unit owner. Based on the foregoing it is ORDERED: The relief requested by the petitioner, an order requiring the association to repair the wall of the petitioner s patio enclosure, is hereby DENIED. DONE AND ORDERED this 11 th day of March, 1999, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida RIGHT TO TRIAL DE NOVO 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. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 11 th day of March, 1999, to: 7

8 SCOTT LIBERMAN JIB COURT J-14 AVENTURA FL Petitioner GARY MARS ESQ HYMAN & KAPLAN PA 27TH FL MUSEUM TOWER 150 W FLAGLER ST MIAMI FL Attorney for Respondent Leslie O. Anderson-Adams, Arbitrator 8