STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION KEYS RV/MOBILE HOME CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No KENNETH ARSENAULT and CAROLYN ARSENAULT, Respondents. / FINAL ORDER Procedural History Keys RV/Mobile Home Condominium Association, Inc. (the Association) filed a petition for arbitration naming Kenneth Arsenault and Carolyn Arsenault as the respondents. The Association alleges that Respondents relocated a trailer on their parcel causing a violation of the Condominium s governing documents because the trailer extends on to the common elements. Respondents filed an answer to the petition raising the defense of selective enforcement, identifying other parcels that they claim have trailers that are either against, or over, the lines of the parcel. The Association replied to the defense contending that such violations were grandfathered under the governing documents. A telephonic final hearing was held in this matter on August 16, 2011, at which time the parties were permitted to present evidence and witness testimony. At the 1

2 conclusion of the hearing, the parties were permitted to file proposed final orders by September 16, Both parties have file proposed final orders. Appearances For Petitioner: For Respondents: David H. Rogel, Esq. Becker & Poliakoff, P.A. 121 Alhambra Plaza, 10 th Floor Coral Gables, FL Michael J. Healy, Esq. The Silver Law Group, P.A. Post Office Box 710 Islamorada, FL FINDINGS OF FACT 1. Keys RV/Mobile Home Condominium Association, Inc. is the corporate entity responsible for the operation of the Keys RV/Mobile Home Condominium (the Condominium) located in Monroe County, Florida. 2. Respondents own unit 74W at the condominium and maintain a trailer on the parcel. 3. The condominium contains 174 parcels/lots which can be used for the placement of a recreational vehicle and 26 parcels/lots designated for mobile homes. See paragraph FF. of Article II of the Declaration of Condominium Establishing Keys RV/Mobile Home Condominium (the Declaration). 4. The condominium was created when the Declaration was filed in the public records of Monroe County, Florida on September 7, Prior to the creation of the condominium, the property had been a mobile home park subject to Chapter 723, Florida Statutes. Article I, Declaration. 2

3 5. Pursuant to subsection C. of Article VI of the Declaration, any structures which encroached onto the common elements at the time the condominium was created are permitted to remain. Subsection C. of Article VI of the Declaration provides: Encroachment Easements. In the event that any Parcel shall encroach upon any portion of the Common Elements for any reason not caused by the purposeful or negligent act of the Parcel Owner(s) or agent(s) of such Owner(s), then an easement appurtenant to such Parcel shall exist for continuance of such encroachment for so long as such encroachment naturally shall exist. In the event that as of the filing of this Declaration any portion of an Approved- Dwelling (e.g., overhang, air conditioning unit) shall encroach upon any portion of the Common Elements or an adjacent Parcel for any reason not caused by the purposeful or negligent act of the Parcel Owner(s) or agent(s) of such Parcel Owner(s), then an easement appurtenant to such Parcel shall exist for continuance of such encroachment for so long as such encroachment naturally shall exist. In the event that any portion of the Common Elements shall encroach upon any Parcel, then an easement appurtenant to the Common Elements shall exist for the continuance of such encroachment for so long as such encroachment naturally shall exist. 6. Likewise, encroachments by structures and improvements upon another parcel present at the time the condominium was created are permitted to remain in accordance with subsection N. of Article VI of the Declaration which provides: Encroachments of Existing Structures. Existing recreational vehicles, structures or improvements within certain Parcels as identified in Exhibit E-2 may b[sic] encroached upon an adjacent Parcel or the adjacent property (non-condominium property) owned by a third party. The Association disclaims any obligation in removing such encroachment, and any required correction or elimination of such encroachment shall be the exclusive obligation of the Parcel Owner for Parcel [sic] having the encroaching recreational vehicle or structure. Notwithstanding any such encroachment upon a Parcel, the Parcel Owner encroaching upon an adjacent Parcel shall have an easement for such encroachment until the encroachment no longer exists upon the adjacent Parcel, whether such encroachment has be[sic] removed voluntarily or involuntarily, e.g., destruction by windstorm or otherwise. 7. In order to remedy an encroachment on neighboring, non-condominium property, Respondents relocated their trailer in May 2009 to its current location. 3

4 Respondents trailer is permanently secured and is not mobile in its current configuration. 8. Fredrick Hildebrand has been a licensed surveyor since In October 2009, Mr. Hildebrand prepared a signed and sealed survey of Respondents parcel. 9. The survey indicates that Respondents trailer encroaches over the east boundary of the parcel 0.3 feet (3.6 inches) on to the West Drive common elements. 10. The survey shows that the trailer could be repositioned in such a manner as to avoid encroachment of the common elements and neighboring properties while maintaining its current orientation on the parcel. 11. Respondents have not moved their trailer since the survey. 12. Mr. Hildebrandt surveyed the condominium property in 2004 when the condominium was created at which time he surveyed the boundary of every lot. Since then, at the Association s request, he has resurveyed the property in order to establish boundaries finding that in addition to Respondents encroachment, a trailer on East Drive encroached onto the East Drive common elements (the East Drive encroachment). 13. Michael Ralph Adkins is a licensed Community Association Manager. He has served as the Association s manager for the past five years. If there is an obvious encroachment, he asks the owner to correct it. Since he has been the manager, the Association has had to request two surveys in order to determine whether an encroachment exists. Including Respondents encroachment and the East Drive encroachment, Mr. Adkins has found three encroachments by permanent trailers that did not exist before the creation of the condominium. Except for Respondents 4

5 encroachment, all encroachments that arose after the creation of the condominium have been corrected. 14. Respondents encroachment is currently the only encroachment that did not exist at the time the condominium was created. Mr. Adkins and the Association s Board of Directors have investigated all other encroachments. Using public records, such as the property appraiser s records, they have determined that these encroachments existed before the creation of the condominium. 15. Subsection D of Article V of the Declaration provides: Alterations. The Parcel Owner shall not, without first obtaining the written consent of the Association, alter the Parcel in any way or add to the Approved-Dwelling presently located upon the Parcel or any of its fixtures and appurtenances, including, but not limited to, installing any external electrical wiring, television antenna, machinery, or airconditioning units, which in any manner change the appearance of any portion of an Approved- Dwelling or the exterior of said Parcel, without obtaining the prior written consent of the Association. No Parcel Owner shall cause or allow improvements or changes to any Limited Common Elements or Common Elements. Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant section , Florida Statutes. Due to their ownership of a unit at the Condominium, the Respondents must comply with the Condominium s governing documents. Respondents trailer encroaches onto the common elements by 0.3 feet altering the appearance of the common elements. Therefore, Respondents have violated subsection D of Article V of the Declaration. It might be argued that the encroachment is de minimis and not material. However, the Declaration prohibits any alteration. 1 1 This conclusion might be different if the governing documents only prohibited material alterations as does section , Florida Statutes. 5

6 Respondents have raised the affirmative defense of selective enforcement claiming that the Association is arbitrarily permitting other encroachments to continue while taking legal action against Respondents. Respondents bear the burden of proving that there are instances of similar violations of which the governing body has notice but in which they have refused to act. Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla. 1979); Killearn Acres Homeowners Association, Inc. v. Keever, 595 So.2d 1019, 1021 (Fla. 1st DCA 1992). Sea Breeze South Apartments Condo., Inc. v. Beck, Arb. Case No , Final Order (May 17, 2002); Respondents identified the following parcels as having a trailer either against or over the lot lines of the parcel: Lot #113W, Lot #82W, Lot #43E, Lot #57E, Lot #32E, Lot #89E, Lot #37E, Lot #44E, Lot #48E, Lot #61E, Lot #65E, Lot #85E, Lot #94E and Lot #98E. Pursuant to subsection C. of Article VI of the Declaration, any structures which encroached onto the common elements at the time the condominium was created are permitted to remain. Exhibit E-2 to the Declaration is a schedule of encroachments. The Schedule of Encroachments does not include Lot #82W, Lot #43E, Lot #57E, Lot #32E, Lot #37E, Lot #48E, Lot #61E, Lot #65E, Lot #85E, and Lot #94E. However, as indicated by subsection N. of Article IV of the Declaration, the schedule lists encroachments upon an adjacent parcel or adjacent non-condominium property. Therefore, the schedule is not intended to identify encroachments onto the common elements. 2 Respondents have failed to demonstrate that encroachments they rely upon in their defense were created subsequent to the creation of the condominium. 2 Additionally, Exhibit B to the Declaration Survey, Graphic Description and Plot Plans for the condominium property, does not describe the location of permanent structures located on the parcel units. It only depicts common element structures. 6

7 Respondents also base their defense of selective enforcement upon the actions of Greg Coldiron, a former member of the Association s Board of Directors and the owner of the adjacent, non-condominium property, onto which Respondents trailer encroached until they moved it in May When Mr. Coldiron purchased the adjacent property, the Respondents parcel, along with many of the other parcels on the western side of the condominium property, had structures encroaching upon Mr. Coldiron s property. Respondents argue that since Mr. Coldiron did not offer to allow them to purchase the encroached property as he did with the other owners, they are the victims of selective enforcement. The defense of selective enforcement is based upon the actions or inactions of the Association. Mr. Coldiron s management of his property does not involve the Association and cannot be used to establish selective enforcement by the Association. Respondents have failed to demonstrate a basis for prohibiting the Association from enforcing its governing documents. Therefore, Respondents will be required to comply with the governing documents. Based upon the foregoing, it is ORDERED: Within ninety (90) days of the date this order, Respondents shall relocate their trailer in such a manner that it no longer encroaches upon the common elements. DONE AND ORDERED this 29 th day of September, 2011, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: Facsimile:

8 Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. As provided by section , Florida Statutes., the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Rule 61B , F.A.C. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 29 th day of September, 2011: David H. Rogel, Esq. Becker & Poliakoff, P.A. 121 Alhambra Plaza, 10 th Floor Coral Gables, FL Attorney for Petitioner Michael J. Healy, Esq. The Silver Law Group, P.A Overseas Highway Islamorada, Florida Attorney for Respondents James W. Earl, Arbitrator 8