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 DONNA LYNN LAMBERT, Trustee of the Declaration of Trust of Donna Lynn Lambert dated April 20, 2015, Petitioner, v. Case No MAPLELEAF VILLAS CONDOMINIUM OF NAPLES, INC., Respondent. / SUMMARY FINAL ORDER Statement of the Issue May Mapleleaf Villas Condominium of Naples, Inc. (the Association) require a unit owner to provide electricity to the common element irrigation pump under her electric meter? Relevant Procedural History On August 6, 2015, Donna Lynn Lambert, Trustee of the Declaration of Trust of Donna Lynn Lambert dated April 20, 2015 (Petitioner) filed a petition for arbitration alleging that the Association was improperly requiring that the common element irrigation pump be provided with electricity charged to her unit s meter. On August 31, 2015, the Association filed an answer. On September 1, 2015, Petitioner filed a reply. Afterwards, the parties submitted documents and legal briefs. Page 1 of 6

2 Statement of the Facts 1. The Association is the entity responsible for the operation and maintenance of Mapleleaf Villas Condominium of Naples. 2. Respondent owns a unit in Mapleleaf Villas Condominium of Naples. 3. Before Petitioner s purchase of unit, the common element irrigation pump had been providing electricity charged to the electricity meter of Respondent s unit. 4. Previous owners have made an oral agreement for reimbursement of the estimated cost of electricity. 5. Petitioner took possession of the unit and responsibility for the electric bills for her meter on July 1, Petitioner has received $60.00 for payment of electricity The cost to install a separate meter for the irrigation pump is approximately $2, The FPL Customer Billing Inquiry Summary prepared by a Florida Power and Light (FPL) representative confirms that the common element irrigation pump is connected to Petitioner s FPL meter. 9. The FPL representative confirmed that the irrigation pump consumes approximately kilowatts per hour, costing approximately $0.18 per hour to run the pump as indicated in the FPL Customer Billing Inquiry Summary filed in this action. 10. Based on the FPL energy usage charts prepared by FPL that monitor the electricity usage of Ms. Lambert s unit, a spike in usage regularly occurs during the late 1 The Association also alleges that it issued two more $60.00 checks. However, it admits Petitioner did not deposit them. Page 2 of 6

3 night and early morning hours between 1:00-4:00 a.m. The actual amount of time the spike in usage fluctuates is between zero hours to five hours on any given day. The arbitrator finds that the average use of electricity for the irrigation pump is approximately three hours per day. Conclusions of Law Because there is no issue of material fact in dispute after the filings provided to date by the parties, this case is appropriate for summary disposition pursuant to Rule 61B , Florida Administrative Code. Pursuant to Section , Florida Statutes, the Division has jurisdiction over a dispute involving the authority of the board to require an owner to take action with respect to the owner's unit or appurtenances, including common elements. In the instant case, the board is requiring Petitioner to use her FPL meter to provide electricity to the common elements. Section (1)(a), Florida Statutes, provides that common expenses include the expenses of the operation, maintenance, repair, replacement, or protection of the common elements and association property. Section (2), Florida Statutes states: Except as otherwise provided by this chapter, funds for payment of the common expenses of a condominium shall be collected by assessments against the units in that condominium in the proportions or percentages provided in that condominium s declaration. In a residential condominium, or mixed-use condominium created after January 1, 1996, each unit s share of the common expenses of the condominium and common surplus of the condominium shall be the same as the unit s appurtenant ownership interest in the common elements. By having Petitioner provide the electricity to the irrigation pump, this common expense is not being paid by the assessment of all the unit owners. Petitioner is being Page 3 of 6

4 forced to pay for this common expense alone and out of proportion with her interest in the common elements. Any reimbursement to the Petitioner can only be an estimate, which is why a separate meter is necessary to determine the exact amount each unit owner should be assessed to pay for the electricity to the irrigation pump. Association s Affirmative Defenses The Association asserts two affirmative defenses. The first defense is that the Association s Declaration of Condominium permits it to use electricity from Petitioner s meter through an easement. Article 3.3 of the Declaration states: Easements are reserved through the condominium property as may be required for utility services, including water-sprinkler systems, in order to serve the condominium adequately; provided, however, that such easement through a townhouse or apartment shall be only according to the plan and specifications for the townhouse or apartment building, or as the building is constructed, unless approved in writing by the townhouse or apartment owner. The Association s interpretation of Article 3.3 would create a conflict with Section (2), Florida Statutes. The Declaration may not require a unit owner to pay for the common expense out of proportion with her interest in the common element. Therefore, this defense fails. The second affirmative defense is that Petitioner is barred by the statute of limitations because the irrigation pump has been hooked up to the unit s meter for more than five years. However, Florida courts have held that where an obligation is continuing in nature, a party s ongoing nonperformance constitute[s] a continuing breach while the contract remain[s] in effect. Grove Isle Ass n v. Grove Isle Assocs., LLLP, 137 So. 3d 1081 (Fla. 3rd DCA 2014); See also, City of Quincy v. Womack, 60 So. 3d 1076, 1078 (Fla. 1st DCA 2011). As long as a continuing cause of action exists, Page 4 of 6

5 the statute of limitations merely limits damages to those incurred during the applicable time frame before the suit was filed, rather than barring relief altogether. Accordingly, Petitioner is not barred from filing suit altogether since the dispute is continuing in nature, and Petitioner continues to be harmed by Respondent s refusal to perform the work necessary to install a separate electric meter and disconnect the irrigation pump from Petitioner s meter. Therefore, this defense fails. Damages The difficulty of calculating damages is exactly why the Association needs to have its own electric meter to determine the cost of electricity to run the irrigation pump. From the FPL billing summaries, the arbitrator s best estimate is that the irrigation pump runs on an average of three hours per day. FPL estimates that the cost of running the irrigation pump is $0.18 per hour. Therefore, Petitioner shall be reimbursed $0.54 a day since July 1, 2014 until the pump is disconnected from her meter. The Association shall be credited for its single $60.00 payment to Petitioner. Based upon the foregoing: It is ORDERED: 1. No later than 5:00 p.m. on November 1, 2016, the Association shall permanently disconnect the Association s irrigation pump from Petitioner s FPL meter. 2. Within ten (10) days of disconnecting the irrigation pump from Petitioner s FPL meter, the Association shall reimburse Petitioner: $0.54 per day from July 1, 2014 to the date of disconnection minus its $60.00 payment. Page 5 of 6

6 DONE AND ORDERED this 26th day of September, 2016, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida Telephone (850) Facsimile (850) 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 , Florida Administrative Code. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and to the following persons on this 26th day of September, 2016: Jessica R. Palombi, Esq. Palombi Law LLC 780 Fifth Ave. South Suite 200 Naples, FL Jessica@Palombi-Law.com Attorney for Petitioner Jason Hamilton Mikes, Esq. Hamilton Mikes, P.A th Avenue South Suite 212 Naples, FL Jason@HamiltonMikes.com Attorney for Respondent Terri Leigh Jones, Arbitrator Page 6 of 6