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 ALLEN BOUDREAUX, Petitioner, v. Case No ONE BEACH CLUB DRIVE CONDOMINIUM ASSOCIATION, INC., Respondent. / FINAL ORDER Statement of the Issue The issue in this case is whether the Association altered a limited common element parking spot without permission of the unit owner. Procedural History Allen Boudreaux filed a petition for arbitration on March 14, 2011 alleging that One Beach Club Drive Condominium Association, Inc. ( Association ) materially altered his limited common element parking space by repainting the lines marking the spot to indicate an area narrower than specified by the plan filed with the Declaration of Condominium. On April 5, 2011, the Association filed an answer admitting the dimensions shown on the plan and that assigned parking spaces are limited common elements according to the Declaration of Condominium, but denying that the space had been materially altered by the Association in the manner suggested by Petitioner. The Association also alleged affirmative defenses that Petitioner s space had been designated as a handicapped parking space and that Petitioner was estopped from claiming material alteration because 1

2 Petitioner or someone acting on his behalf had altered it by painting over the symbols for a handicapped spot. After a case management conference, the parties were directed to file memoranda as to the significance of the handicapped parking designation on the plans and whether any legal requirement for such a space could be severed from Petitioner s claim. After receipt of the memoranda, a final hearing was scheduled for May 3, 2011, with the evidence presented at the final hearing limited to: 1. Do lines exist at the location of parking spot 25, as depicted in the garage floor plan recorded with the Amended Declaration of Condominium of One Beach Club Drive Condominium, that indicate a parking spot with dimensions less than 12 feet by 20 feet? 2. If lines exist indicating smaller dimensions, what party caused the lines to be so placed? At the conclusion of the final hearing, the parties were granted two weeks to furnish written memoranda, argument or proposed orders. Each party took advantage of the opportunity to make a written filing. Findings of Fact 1. Petitioner owns unit 1804 in One Beach Club Drive Condominium and is subject to its governing documents. 2. Respondent is the entity responsible for management of One Beach Club Drive Condominium in Walton County, Florida. 3. Petitioner purchased his unit on January 3, 2003, from the developer/declarant by a warranty deed with a legal description referring to the 2

3 Declaration of Condominium recorded in O.R. Book 2462, Pages 1106 through 1188 of the Public Records of Walton County, Florida, Together with assigned Parking Space The original Declaration of Condominium, recorded January 3, 2003, included an exhibit, Garage Level Floor Plan recorded at Page 1145 of O.R. Book 2462 of Walton County, Florida. That exhibit shows Parking Space 25 as 12 foot wide, abutted by a concrete column on one side, and by a 5 foot space on the other side separating it from Parking Space 26. Spaces 25 and 26 are both shown with a wheelchair symbol. 5. Section 6.4 of the Declaration of Condominium defines Limited Common Elements to include: (2) To each residential Unit one covered automobile parking space hereby designated to be appurtenant to and inseparable from such Units, which space will be assigned by the Declarant. The Declarant shall have the right to assign more than one (1) parking space to a Unit so long as all Units have at least one (1) covered parking space assigned. All unassigned parking spaces shall be Common Elements until and unless they are assigned to a Unit. The exclusive right to use an assigned space shall pass with title to the Unit to which such designated space is appurtenant and shall be inseparable therefrom. 6. The maintenance supervisor employed by the Association since its inception testified that after a certificate of occupancy was issued for the building, the handicapped markings were painted over. For at least six years parking space 25 was used exclusively by Petitioner with no indication of a handicapped parking designation. 7. Prior to January 2010, the space between spots 25 and 26 was outlined by white paint forming a rectangle 5 feet wide by the length of the parking spots, with diagonal white lines every couple of feet along its length. The aisle thus designated 3

4 leads as a walkway from outer parking to a stair well and elevator lobby. 8. In February 2010, as part of an Association painting project for the entire condominium, the parking area was shot blasted to remove stains and old paint, and repainted. 9. After the repainting, the aisle between spots 25 and 26 was outlined by yellow paint forming a rectangle 7 feet wide by the length of the parking spots. The aisle now also serves as an exclusive path to park one or more golf carts adjacent to the stair landing, but it is not clear that the carts could not use this path when it was marked as only 5 feet wide. 10. After the repainting, spot 25 appears described by parallel yellow lines on either side. The new lines are approximately 4 inches wide, one next to the concrete column and the other forming a side of the new aisle. The interior width between the lines is now 10 feet, two inches. 11. The Association denies instructing the painting contractor to alter the width of parking spaces 25 and 26 or the aisle between them. 12. Even attributing the entire width of the four inch lines as part of Petitioner s parking space it is clear that the repainting signifies a spot reduced in width by more than one foot. (Although attributing two inches to the space and two inches to the aisle would be more conventional. If the convention is not applied to the aisle it is now 7 feet 4 inches wide.) Conclusions of Law The Division has jurisdiction over this matter pursuant to Section , Florida Statutes, to determine the authority of the board of directors to alter or add to a 4

5 common element. Respondent admits that the striping painted on the parking level currently marks parking space 25 as less than 12 feet wide. The Association raises two defenses to the petition for arbitration: A. The change to space 25 is not a material alteration because Petitioner s ability to park in the space has not been appreciably affected; B. If the change to space 25 is a material alteration, the Association should not have to repaint the lines because it is not responsible for the action of its painting contractor. Material Alteration A limited common element is an exclusive right, appurtenant to a unit, to use a portion of the common elements (19) and (2)(b), Fla. Stat. A limited common element does not provide a legal ownership of a piece of property. See Mayfair Engineering Co. v. Park, 318 So. 2d 171 (Fla. 4th DCA 1975); Gulf Island Beach & Tennis Club Condominium Ass n II, Inc. v. Dabkowski, Arb. Case No , Final Order (March 26, 2001). However, it must be identified sufficiently to pass with the unit to which it is appurtenant when legal title to the unit is conveyed. See Juno by the Sea North Condominium Ass n (The Tower), Inc. v. Manfredonia, 397 So. 2d 297 (Fla. 4th DCA 1981). Respondent submits that the result should be governed by the material alteration provision of section (2)(a), Florida Statutes, which allows a percentage of owners to vote to alter common elements. However, that analysis applicable to undivided interests appurtenant to all units does not extend to limited common 5

6 elements. Rather section (4), Florida Statutes, requires that a unit owner join in an amendment to the declaration to materially alter or modify the appurtenances to the unit. In this case, the Declaration of Condominium and deed to Petitioner specifically describe the location and dimensions of the parking space, which must pass with title to the unit to which it is appurtenant and from which it is inseparable. The new lines on the ground not only reduce the width of Petitioner s appurtenant parking space, they affirmatively indicate to pedestrians and golf carts an entitlement to use an area that the Declaration and deed make exclusive for the use of Petitioner. This is a significant modification of the appurtenance to his unit. Responsibility of Association There is no need to find fault on the part of the Association for the action of its contractor who changed Petitioner s parking space. The responsibility to restore the limited common element is clearly provided by section 13.3 of the Declaration of Condominium: Limited Common Elements (LCE). The Association shall be responsible for, and shall assess against and collect against all Unit owners the cost of performing necessary maintenance, repairs and replacements, and keeping in clean and orderly condition the exterior of the balconies, terraces, sun decks and loggias, and the covered parking areas which are designated as the Limited Common Elements. Only the Association has the authority to perform the necessary restoration of the Limited Common Element parking space provided by the Declaration of Condominium and deed to Petitioner. Based on the foregoing, it is ORDERED; 1. Any potential dispute arising from the plan designation for handicapped parking is properly severed from this arbitration pursuant to Rule 61B , Florida 6

7 Administrative Code, because enforcement of building codes is outside the jurisdiction created by section , Florida Statutes while such a dispute is irrelevant to the size and use of a limited common element; 2. Within 45 days of the date of this Order, One Beach Club Drive Condominium Association, Inc. shall enter into a contract requiring performance within 30 days of the contract, to repaint Parking Space 25 and the abutting aisle to restore the dimensions shown in Garage Level Floor Plan recorded on Page 1145 of O.R. Book 2462, of Walton County, Florida. DONE AND ORDERED this 6th day of July, 2011, at Tallahassee, Leon County, Florida. Bruce A. Campbell, Arbitrator Dept. of Bus. & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed within 30 days 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 within 45 days in accordance with Rule 61B , F.A.C. Certificate of Service I hereby certify that a copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 6th day of July, 2011: 7

8 Gary A. Shipman, Esq. Dunlap & Shipman, P.A Co. Hwy 283 S., Suite B Santa Rosa Beach, FL Charles Wiggins, Esq. Beggs & Lane, RLLP 501 Commendencia Street Pensacola, FL Bruce A. Campbell 8