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 OCEAN ISLES FISHING VILLAGE, INC., Petitioner, v. Case No YOLANDA COLLISON, Respondent. / SUMMARY FINAL ORDER This Summary Final Order is being entered pursuant to Rule 61B , Florida Administrative Code, which states: At any time after the filing of the answer, and if no disputed issues of material fact exist, the arbitrator shall summarily enter a final order awarding relief if the arbitrator finds that no meritorious defense exists, and that the petition is otherwise appropriate for relief. Statement of the Issue The issue in this case is whether Respondent Yolanda Collison must remove the enclosed porch which she added to her unit in Allegations Included in the Pleadings and Relevant Procedural History On January 14, 2014, the Association filed a Petition for Non-Binding Arbitration alleging that Respondent had, on an unknown date, added a structure to her condominium unit that encroaches on the common elements and on another unit that is not owned by Respondent, and that the structure was built without obtaining proper building permits. The Association further alleged that Respondent has never obtained the Association s approval to build the structure. As relief, the Association seeks an Page 1 of 13

2 Order requiring Respondent to remove the structure. On January 21, 2014, the Association filed an unrecorded copy of what appeared to be its governing documents, or precursors thereof. 1 On January 23, 2014, an Order Requiring Answer was entered. On February 28, 2014, an Order requiring service by the Association was entered, because the petition and Order Requiring Answer could not be successfully served on Respondent by U.S. Certified Mail. On April 14, 2014, the Association filed proof of service on Respondent. On April 17, 2014, Respondent filed a letter addressed to the arbitrator that was deemed an Answer to the petition. The letter requested an extension of time of ninety (90) days to resolve the issue, due to health problems and financial hardship. Respondent stated that she was hoping all unit owners with similar structures could chip in and hire a contractor to remove them at the same time, at a more reasonable cost to all. Respondent acknowledged that she had built the addition to the unit in 1981, but stated that other unit owners had built similar additions, and that until recently, Respondent s addition had been considered grandfathered in. An Order was entered on April 23, 2014, scheduling a telephonic case management conference on May 13, 2014, at 4:00 p.m. At the case management conference Franklin D. Greenman, Esquire, appeared representing the Association. Respondent did not participate in the case management conference by calling the number indicated on the Order of April 23, 2014, and did not contact the office of the arbitrator to say that she would be unable to participate in the conference or to request that the conference be rescheduled. Because Respondent had been duly notified of the case management conference, but apparently chose not to participate without offering 1 The documents were labeled as a prospectus. Page 2 of 13

3 an explanation, the arbitrator and counsel for the Association were allowed to discuss the case. On May 8, 2014, the Association filed a Notice of Supplemental Filing which consisted of a letter dated April 29, 2014, from the Association s board of directors, stating, in summary, that a section of the water main that supplies much of the condominium had broken and could not be adequately repaired because it runs underneath Respondent s enclosed porch. On May 14, 2014, an Order After Case Management Conference was entered, requiring the Association to file a recorded copy of its governing documents and any amendments, any documents the Association had received from the local building official supporting the Association s claim that the building official had told the Association that Respondent s porch must be removed, and any documents supporting the Association s claim that all other additions similar to Respondent s had been removed by the owners, at the Association s request. On June 4, 2014, the Association filed a Response to Order after Case Management, with attachments. On July 18, 2014, an Order was entered requiring Respondent to file a response, by July 31, 2014, stating whether the enclosed porch had been removed from her unit, and whether Respondent disputes the Association s claim that removal of the porch is necessary for the permanent repair of the water main that serves several units. As of the date of entry of this Order, Respondent has filed no response to the Order of July 18, This Order is entered after consideration of all pleadings and other documents filed in this case. Page 3 of 13

4 Findings of Fact 1. The Association is the governing body for the Ocean Isles Fishing Village Condominium, with the responsibility for the operation and maintenance of the condominium. Association. 2. Respondent owns a unit in the condominium and is a member of the 3. Respondent admits that in 1981, the same year in which the condominium was created by converting an existing motel 2 into condominium units, she purchased a unit and built the enclosed porch that is the subject of this arbitration case. 4. Respondent does not claim to have obtained the written approval of the Association or of any percentage of the other unit owners prior to building the enclosed porch, although she states that she was told she could do whatever I wanted to in the back. 5. Section 10. A. 3. of the Declaration of Condominium for Ocean Isles Fishing Village, Inc., states: Alteration and Improvement. Except as elsewhere reserved to the Developer, neither an apartment owner nor the Association shall make any alterations in the portions of an apartment or apartment building which are to be maintained by the Association, or remove any portion thereof, or make any additions thereto, or do anything which would jeopardize the safety or soundness of the apartment building, or impair any easement, without first obtaining approval in writing of owners of all apartments in which such work is to be done and the approval of the board of directors of the Association. A copy or plans for all such work prepared by an architect licensed to practice in the State of Florida shall be filed with the Association prior to the start of the work. (Emphasis added.) 2 The former Salty Dog motel in Marathon. Page 4 of 13

5 6. Section 10. A. 1. (a) of the Declaration of Condominium for Ocean Isles Fishing Village, Inc., states: MAINTENANCE, ALTERATION AND IMPROVEMENT. The responsibility for the maintenance of the condominium property, and restrictions upon the alteration and improvement thereof, shall be as follows: A. Apartments. 1. By the Association. The Association shall maintain, repair and replace at the Association s expense: (a) All portions of the condominium property and an apartment except interior surface, contributing to the support of the apartment building, which portions shall include but not be limited to the outside walls of the apartment buildings and all fixtures (except air conditioning units) on the exterior thereof, boundary walls of apartments, floor slabs, roofs, load-bearing columns and load-bearing walls. (Emphasis added.) 7. Section 10. B. 2., of the Declaration of Condominium for Ocean Isles Fishing Village, Inc., states, in pertinent part: B. Common Elements.. 2. Alteration and improvement After the completion of the improvements included in the common elements which are contemplated by this Declaration, there shall be no alteration nor further improvement of the real property constituting the common elements without prior approval in writing by the owners of not less than 75% of the common elements except as provided by the By-laws. 8. On or about February 22, 1994, the Association sent letters to the owners of at least seventeen (17) units, including Respondent, informing them that the additions to their units violated Article X A. (3) of the Declaration of Condominium, and what was then Section (2) of the Florida Condominium Act. The letter urged each owner to remove these additions. The letter also informed the owners that the Association s Page 5 of 13

6 board of directors would not issue its consent for the sale or transfer of any unit that had such an addition, and that the addition would have to be removed in order to sell the unit. 9. In 1998, the Association adopted a List of Improvements & Modifications that will ordinarily be approved by the Board. The list does not include enclosed porches, but does allow decks with teal colored canvas roofs and screen or lattice siding, as long as they are easily removable for access to pipes and utilities in an emergency. 10. At a meeting of the Association s board of directors held on July 12, 2008, the board discussed some repairs to be made using insurance proceeds, and reaffirmed its position that it would not approve the transfer or sale of any unit that had an illegal structure. 11. On May 8, 2014, the Association filed a letter from the Association s board of directors stating, in summary: There has been a break in the water main that supplies many of the units in the condominium. The break is located under Respondent s enclosed porch. Steve s Plumbing, Inc., the contractor hired to perform the repairs, has been able to make only temporary repairs to the water main without the removal of Respondent s enclosed porch, but the pipe needs to be completely replaced, and the plumber says he cannot do this without removal of the porch. 12. Respondent has filed nothing indicating that she disputes the Association s claim that removal of her enclosed porch is necessary in order to properly repair the water main. Page 6 of 13

7 Conclusions of Law Respondent admits that she built the enclosed porch addition to her unit in 1981, and makes no assertion that she obtained written approval from the Association before doing so. Additionally, Respondent s enclosed porch is located on a portion of the common elements of the condominium, not within the parametrical boundaries of Respondent s unit. Therefore, Respondent s enclosed porch addition violates Section 10. A., of the Declaration of Condominium for Ocean Isles Fishing Village, Inc. Respondent knew, in 1981, that she was buying a unit within a newly converted condominium that would be governed by a declaration of condominium. The declaration of condominium, which is the condominium's constitution, creates the condominium and strictly governs the relationships among the condominium unit owners and the condominium association. Woodside Village Condo. Ass'n, Inc. v. Jahren, 806 So. 2d 452, (Fla. 2002). A declaration of condominium must be strictly construed. Palm Beach Hotel Condo. Ass'n, Inc. v. Rogers, 605 So. 2d 143, 145 (Fla. 4 th DCA 1992). Respondent claims she was told when she purchased the unit that that she could build anything she wanted in back of her unit. Respondent could not reasonably rely on the unwritten statements of an unspecified person because the Declaration of Condominium clearly prohibits alterations such as Respondent s enclosed porch. Respondent alleges that the Association has, essentially, waived its right to enforce the restriction on unapproved alterations as to her unit as a result of its failure to enforce the provision in the past. Waiver is the intentional or voluntary relinquishment of a known right, or conduct which implies the relinquishment of a known right. Mizell v. Page 7 of 13

8 Deal, 654 So. 2d 659, 663 (Fla. 5th DCA 1995). The elements of waiver are: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit that may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right. Id. In addition, in the context of restrictive covenants, there must be a long-continued waiver or acquiescence in the violation of a restrictive covenant and the conscious acquiescence is persistent, obvious and widespread violations for waiver or abandonment to occur. Id. (citing Siering v. Bronson, 564 So. 2d 247, 248 (Fla. 5th DCA 1990)). Respondent alleges, and the Association has confirmed through its filings, that until recently, when the need to repair the water main brought the issue to the forefront, the Association has taken no action to require unit owners to remove structures similar to Respondent s except to inform the owners that they would not be allowed to sell or transfer the units unless the offending structures were removed. The Association has been aware since 1994 or earlier that at least 17 unit owners have made unapproved alterations to their units. The Association stated, in writing, that it would take no action as to the alterations except by disapproving the sale or transfer of a unit until the unapproved alteration has been removed. The Association specifically informed Respondent, in writing, that she could retain the structure until such time as she wished to sell or otherwise transfer the unit. In true Conch Republic fashion, the Association has, for over thirty (30) years, chosen to deal with the removal of unapproved structures by attrition, apparently hoping that time or a hurricane would resolve the problem. Page 8 of 13

9 In the instant case, the Association filed their petition for arbitration more than 5 years after the enclosed porch was installed. Because of the statute of limitations in contract disputes, the Association would not ordinarily be entitled to bring this action seeking to force Respondent to remove the enclosed porch as a violation of the governing documents, nor to seek any monetary contribution from the Respondent for the cost accompanying the removal of the porch and the restoration of the exterior wall. In the following cases, the statute of limitations was held to bar petitions for arbitration or to support a party's right to seek arbitration within the limitation's time period: Berkley South Condo. Ass n, Inc. v. Walsh, Arb. Case No , Summary Final Order (December 9, 2011)(Association was barred by 5 year statute of limitations from requiring unit owner to replace an unapproved window that violated the governing documents); Clipper Cove Village Master Condo. Ass n, Inc., v. Greco, Case No , Final Order (July 23, 2010)(owner enclosed her limited common element lanai in 2004 in violation of the condominium's governing documents but the Association waited 6 years to file a petition to force removal of the enclosure; laches barred the action); Sheoah Highlands, Inc., v. Daugherty, 837 So. 2d 579, 582 (5 th DCA 2003)(applying the statute of limitations to uphold an owner's petition against the association for failing to enforce the condominium's declaration which prohibited certain unit owners from constructing screened enclosures on the condominium's common property); Melbourne Ocean Club Condo. Ass'n, Inc. v. Elledge, 71 So. 3d 144 (5 th DCA 2011)(applying one year statute of limitations to association members' petition to have their association and its agent obtain and produce to them independently audited financial statements for the year 2006 but denying same as to years 2004 and 2005 as Page 9 of 13

10 outside the limitations period); Oceanside Plaza Condo. Ass n, Inc., v. Piero Salussolia, Case No , Partial Summary Order on Issue of Limitations (September 23, 1996)(5 year statute of limitations applied to association's petition complaining that owner installed exterior doors to his balconies whose color was non-conforming to the building's color); The Gardens at Pembroke Lakes Condo. Ass n, Inc., v. Placide, Case No , Notice of Intent to Issue Partial Summary Final Order (April 11, 2007) (because the association filed its petition 6 years after the current owner purchased his unit whose floors were tiled by a previous owner, the arbitrator found the limitations period had run and denied the association relief that would require owner to apply for approval of the tile floor with the likely outcome that the owner might be ordered to enter into expensive remodeling to remove the tile); Lyme Bay Colony Condo. Ass n, Inc., v. Forget, Case No , Order Striking Affirmative Defenses and Requiring Supplemental Information (August 10, 1998)(in addressing a selective enforcement argument raised by certain unit owners who had erected sheds on their property, the arbitrator agreed with the association that the statute of limitations prohibited it from filing petitions to force removal of sheds which other owners had installed 5 to 10 years earlier). Under ordinary circumstances, Respondent would probably be allowed to keep her porch until she transfers her ownership interest in the unit. However, it is clear from the governing documents that the Association is responsible for repairing and maintaining the common elements at the condominium, and that the water main is part of the common elements. Respondent has built her enclosed porch directly over the common element water main. Page 10 of 13

11 Where a unit owner makes improvements to or on common element property, even when this is done with the Association s permission, unless specifically agreed otherwise by the parties, the unit owner is responsible for removing the improvements if such is necessary to enable the Association to repair and maintain the common elements. See Carriage House Condo. Ass n, Inc., v. Haya, Inc., Arb. Case No , Partial Summary Final Order (January 06, 1997)(Association allowed unit owner to make improvements to limited common element balcony/terrace; improvements were the personal property of owner but association had the right to remove the improvements in order to perform necessary repair to the common elements, and to charge owner for the removal costs). In the instant case, the Association did not grant permission for Respondent to build the enclosed porch on the common elements. While the doctrine of waiver and the statute of limitations might ordinarily bar the Association from requiring Respondent to remove the enclosed porch for the sole reason that it is a violation of the governing documents, in this case it is undisputed that the common element water main cannot be permanently repaired without removing Respondent s porch. The Association has a right to require removal of the porch to enable it to carry out its duty to repair the common element water main. Therefore, the relief it requests will be granted. Relief The Association has asked for an order requiring Respondent to remove the enclosed porch. If the only issue brought before the arbitrator was whether Respondent s affirmative defenses and the applicable statute of limitations were sufficient to allow her to keep her enclosed porch, at least until such time as she sells or Page 11 of 13

12 transfers the unit, the arbitrator would enter an order allowing Respondent to do so. However, exigent circumstances exist in this case, because Respondent s enclosed porch is interfering with the Association s ability to repair and maintain the common element water main. Based upon the foregoing, it is ORDERED: The Association's petition seeking an order forcing Respondent to remove the enclosed porch as a violation of the governing documents is GRANTED. (a) On or before September 12, 2014, Respondent shall remove the enclosed porch and restore the exterior portion of her unit to its original condition. (b) If Respondent fails to comply with paragraph (a) above, the Association may demolish and remove Respondent s enclosed porch and restore the exterior portion of the unit to its original condition, and may charge Respondent for the costs of doing so. DONE AND ORDERED this 15 th day of August, 2014, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Suite 16 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 , F.A.C. Page 12 of 13

13 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 person on this 15 th day of August, 2014: Franklin D. Greenman, Esq. FRANKLIN D. GREENMAN, P.A Overseas Highway, Suite 41 Marathon, FL Attorney for Petitioner Ms. Yolanda Collison 8800 Okeechobee Road, Lot #24 Fort Pierce, FL Respondent Ms. Yolanda Collison Overseas Hwy, Apt. 99 Marathon, FL Respondent Leslie O. Anderson-Adams, Arbitrator Page 13 of 13