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 Sunrise of Palm Beach Condominium Association, Inc. 1, Petitioner, v. Case No Ingrid Carlson, Respondent. / FINAL ORDER On May 22, 2006, Sunrise of Palm Beach Condominium Association, Inc. (the association) filed a petition for mandatory non-binding arbitration in which it alleged the respondent was in violation of the association s governing documents and restrictions in that she was continuing to use a portion of the common elements for storage of her personal property, specifically, a room on the second floor of her building that was originally designated as an electrical meter room. The respondent answered the petition for arbitration on September 14, 2006, asserting the affirmative defenses of estoppel and waiver and selective enforcement, maintaining that she was entitled to exclusive use of the storage room and that the association was barred from any claim that it was a common area because the room had been used for individual storage of property for approximately twenty-five years. The parties were referred to mediation on October 18, A final hearing was held on March 23, The parties submitted final written arguments and a copy of the hearing transcript on May 2, 2007, and May 5, 2007 respectively. The petitioner was represented by Patricia LaBerge Hartley, Esquire, and the Respondent was represented by Joseph D. Pickles, Esquire. This order is entered after consideration of the 1

2 entire record. Findings of Fact 1. Sunrise of Palm Beach Condominium Association is the entity responsible for the operation and maintenance of the Sunrise of Palm Beach Condominium property. 2. The association property consists of 6 condominium buildings. 3. The respondent owns unit 104 in condominium building one. 4. The respondent began using a storage room on the second floor of building one in May of 1998 to store her personal property after being authorized to do so by a member of the association s board of directors. There was no evidence that this board member s action of permitting the use of the room was authorized by the board itself. 5. The second floor room has never been equipped or used as a meter room but has been used for storage of association members personal property. 6. The association membership has never voted to modify the appurtenances to unit 104, nor has the declaration been amended as to the common element second floor room. 7. The second floor room was used on at least one occasion in 2005 as a small workshop by one of the building maintenance workers after the respondent began her use of the space for storage. Additionally, the association required the owner of unit 202 to remove personal property from the storage room in June of The respondent s use of this space continued through 2005, at which time the association demanded she remove her personal property after a fire code inspection raised the issue of whether the storage of the respondent s personal property in the common element room was a fire and/or safety hazard. 9. In August and October of 2005, the association provided the respondent 2

3 with notice that she needed to remove her personal property from the common element area, offering to provide her with an alternate space for storage of her property in January The respondent refused to remove her personal property from the second floor common element room designated in the association s original governing documents as a meter room. 11. In 2007, the association changed the locks to the second floor storage room which precluded the respondent from accessing the property stored there. Conclusions of Law The undersigned has personal and subject matter jurisdiction, pursuant to section , Florida Statutes. The association initiated this case alleging the respondent was attempting to exercise exclusive control of a common element storage room. Respondent does not argue that the storage room was a limited common element appurtenant to the unit. However, she maintains that because the association has permitted her use of the room it is now estopped from barring her exclusive use of the area. Despite the respondent s affirmative defenses to the association s complaint, the common area storage room may not be used exclusively by the respondent for her personal use because it is common area that is not subject to private use by an individual unit owner. The association governing documents were recorded in the public records of Palm Beach County on January 18, Article I, D of the association s Declaration of Condominium defines common elements as those portions of the condominium property which are not included in the units. Article IV of the declaration provides that all unit owners own an undivided interest in the common elements. Article XIII, F of the 3

4 declaration precludes any use of condominium property that is contrary to the association s rules and regulations. Article VII of the declaration provides that the ownership of the common areas may not be changed or the appurtenances to a unit be modified or materially altered without approval of all the record owners and record lien holders. The association s rules and regulations prohibit any use of the condominium property that interferes with another owner s use and enjoyment thereof. Although the respondent has used the room for personal storage and the use has almost been exclusive (except for a few instances in which other unit owners stored personal belongings for a time and or the room was used as a temporary workshop) this use of the property does not allow for consideration of the room as being a limited common element. Section (19), Florida Statutes, provides that a limited common element becomes a limited common element when it is described as such in the declaration of condominium. Here, the declaration does not reflect that the storage room area is a limited common element reserved from the private use of the respondent. Moreover, there was no amendment to the declaration reflecting a change in the classification of the room for a common element to a limited common element, as required by section (4), Florida Statutes. Additionally, the respondent cannot successfully assert the affirmative defenses of laches, waiver and estoppel and selective enforcement in this case. A respondent has the burden of proving affirmative defenses by a preponderance of the evidence. Mercede v. Mercede Park Italian Restaurant, Inc., 392 So. 2d 997, 998 (Fla. 4th DCA 1981). Laches is an unreasonable delay in asserting a known right, which delay causes undue prejudice to the party claiming laches. Appalachian, Inc. v. Olson, 468 So. 2d 266 (Fla. 2d DCA 1985). There was no unreasonable delay by the board in pursuing enforcement as to the 4

5 proper use of the common area storage room, as the evidence reflects that the board took steps to ensure proper use of the room within a few months of the board s becoming aware of the respondent s use in Similarly, the respondent s defense of waiver fails as the evidence reflects that the board collectively took action within a few months of discovering the respondent was attempting to exert exclusive control of the storage room, and thus did not waive any right to ensure proper use of the common elements. Estoppel requires a representation as to a material fact, reasonable reliance on the representation, and a detrimental change in position caused by the representation. Enegren v. Marathon Country Club Condominium Association, Inc., 525 So. 2d 488 (Fla. 3rd DCA 1988). In the instant case, although the respondent was able to produce evidence that a board member was aware of her use of the storage room, there was no credible evidence that the board member made affirmative representations that the board was approving exclusive use of the storage room by the respondent for an indefinite period of time. The evidence adduced at final hearing reflects that only one board member was alleged to have authorized the respondent s use of the storage room, and one board s member authorization would not bind the entire board of directors as the statement of one board member would not be sufficient to bind the board. Simon v. High Point of Delray West Condominium Association Section II, Inc., Arb. Case No , Summary Final Order (April 3, 1995). Moreover, because approval by the entire association membership would have been required for a proper amendment to the declaration to allow for the respondent s exclusive use of the storage area, as discussed above, the respondent s reliance on any board member s representations to that effect would have been unreasonable. Finally, the respondent s defense of selective enforcement fails as the examples of 5

6 other violations cited by the respondent during the final hearing were not sufficiently similar to support this defense. Specifically, the examples provided by the respondent are the instances cited above, where in June of 2005, one owner used the room for temporary storage of his property and a maintenance worker used the room as a work shop. In each instance, the violations were corrected by the board. Accordingly, the respondent s defense fails in it does not show that the board failed to act to enforce of the proper use of the common area storage room as to sufficiently similar violations. Accordingly, it is determined that the storage room is part of the condominium, is a common area, and is not a limited common element or part of the respondent s unit which would entitled her to exclusive use thereof. Therefore, within ten (10) days of the date of this order the association is required to notify the respondent of a date and time during which the storage area will be unlocked and cooperate fully with the respondent who shall remove all of her personal property from the storage room. Furthermore, the association can assign or re-assign storage in the room as appropriate for the association members. Florida. DONE AND ORDERED this 4th day of March, 2008, at Tallahassee, Leon County, Catherine Bembry, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida CERTIFICATE OF SERVICE 6

7 I hereby certify that a true and correct copy of the foregoing Final Order has been sent by facsimile and U.S. Mail, postage prepaid, to the following persons, on this 4 th day of March, Patricia LaBerge Hartley, Esquire Patti Heidler Ladwig, P.A W. Forest Hill Boulevard Suite 1312 Wellington, Florida Joseph D. Pickles, Esquire Federal Tower Building 1600 South Federal Highway Suite 600 Pompano Beach, Florida Catherine Bembry, Arbitrator Trial de Novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. Attorney s Fees Section , Florida Statutes, provides that the prevailing party in this proceeding is entitled to reasonable costs and attorney s fees. Pursuant to rule 61B , F.A.C. a motion for an award of costs and attorney s fees must be filed no later than 45 days after rendition of this final order. 7