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 Golden Horn South Condominium Association, Inc., Petitioner, v. Case No Edward and Elaine Filler, Carmelo Sutera, and Mimma Sutera, Respondents. / as follows: FINAL SUMMARY ORDER Comes now, the undersigned arbitrator, and issues this summary final order The Fillers filed their original petition for arbitration on January 7, The association was subsequently named as petitioner, and the Fillers thereafter became respondents. The Fillers as the owners of unit #8-A, brought this action to determine their entitlement to the exclusive use of parking space #2 at the condominium. Carmelo Sutera and Mimmi Sutera, the owners of unit #8-B who claim some interest in parking space #2, are named as respondents herein. The Suteras have been using space #35. The respondents filed their answers on February 5, 2004, and the arbitrator issued a notice of intent to issue summary final order on February 6, The arbitrator entered an order requiring 1

2 supplemental information on March 30, 2004, and the parties each filed certain supplemental information by April 15, It is necessary to recite portions of the longstanding history giving rise to this dispute, but the history of the dispute should be viewed from the perspective of the declaration of condominium which clearly recognizes two types of parking spaces, covered and uncovered parking spaces. The two spaces at issue in this case are agreed by the parties to constitute covered parking spaces as described by Article 4 of the declaration. Article 4 of the declaration provides: 4. Appurtenances to Apartments. The owner of each apartment unit shall own an undivided share and certain interest in the Condominium property, which share and interest shall be appurtenant to the apartment unit, said undivided interest in the Condominium property and common elements being as designated and set forth in an Exhibit A attached hereto. (a) Covered Parking Spaces. There shall be conveyed by the Developer as an appurtenance to certain specified apartments, designated parking spaces, which shall be covered parking spaces. Once conveyed as an appurtenance to an apartment, such parking space may not thereafter be separately conveyed, hypothecated, transferred, encumbered, or otherwise dealt with, and title thereto shall pass with title to the apartment to which it is appurtenant. (b) Uncovered Parking Spaces. Limited common elements include exterior parking areas for automobiles for those apartment owners who have not purchased, as an appurtenance to their apartments, a covered parking space. Uncovered parking spaces shall be assigned pursuant to the rules and regulations of the Association so as to provide parking for one automobile, i.e., one parking space, for each apartment which does not have a covered parking space as an appurtenance thereto. 2

3 (c) The Developer shall have the sole and exclusive right of assigning parking spaces, covered and uncovered, in connection with the sale of condominium units, so long as there remain any unsold apartments, and once assigned by the Developer parking spaces shall not thereafter be reassigned without the consent of the unit owner. [emphasis added]. With the foregoing provisions in mind, it is possible to review the procedural history of the dispute. According to the petition, the developer initially assigned parking space #35 to unit 8-A, and parking space #2 to unit 8-B. The petition contains no direct written evidence of these initial assignments. However, the answer filed by the Suteras contains as an exhibit a copy of an exchange and reassignment instrument executed in 1972 whereby Murray Herzog, the owner of unit 8A, exchanged parking space #56 for space #35. Based on this, the arbitrator concludes that at one time, parking space #35 was assigned by the developer to unit 8-A. In 1972, the developer sold unit #8-B to Sherman. Consistent with the initial assignment by the developer as stated in the petition, the deed to Sherman conveys the right to use parking space #2. In 1990, as shown by Exhibit 3 to the petition, Sherman purchased unit 8-A from Norma Fine, personal representative of the Estate of Murray Herzog, deceased. However, the deed purports to transfer, as an appurtenance to the unit, assigned space #2. 1 (Note that parking space #2 had been initially assigned by the developer to unit #8-B, or at least had been conveyed with the 1972 transfer of 1 The petition alleges that Sherman reassigned parking space #2 to unit 8-A and space #35 to 8-B, citing as authority therefor, the deed from Fine and Sherman. The deed does not constitute evidence of the alleged reassignment, and the file contains no direct evidence of such a transfer. 3

4 unit 8-B from the developer to Sherman). The deed was executed on November 21, 1990 and recorded on December 27, Thus in 1990, Sherman owned both units 8-A and 8-B. According to the petition, Sherman then re-assigned parking space #2 to unit 8-A, and space #35 to unit 8-B. However, in support of this assertion that the spaces were re-assigned, petitioners have only offered a copy of the same deed attached as exhibit 3 to the petition showing that Sherman purchased title to unit #8-A and the right to use space #2 from Norma Fine as personal representative. 2 The Suteras point out that there is no recorded instrument such as an exchange and reassignment of parking space that evidences this transaction. As an example of such a document, the Suteras have attached to their answer a document entitled Exchange and Reassignment of Parking Space whereby on December 4, 1972, the developer corporation exchanged parking space #56 for parking space #35 for the purchaser of unit #8-A, Mr. Herzog. In January 1992, Sherman deeded Unit #8-B to Feig. 3 (The deed was executed on November 18, 1991 and was recorded on January 15, 1992). The deed, included as exhibit 4 to the petition, identifies space #35 as the parking space assigned to unit #8-B. 4 According to the petition, exhibit #5, in March 2 In the letter included as an exhibit to the petition, counsel for the Fillers explains to the association that when Sherman acquired title to unit 8-A in 1990, Sherman arranged with the then-owner to transfer parking spaces. 3 Filler is shown as an additional grantor on this deed. 4 According to the affidavit signed by Fein attached to Suteras answer, the purchase and sale agreement indicated that space #2 was attached to unit 8-B, and the deed identified space #35 in error. The broker to the real estate transaction executed an affidavit agreeing that Sherman had always intended to convey space #2 with unit 8-B, and attesting to the validity of the subsequent sideline agreement. 4

5 1992, Feig and Sherman entered into a contested sideline amendment 5 to the January 1992 deed that changed the parking space assignment from #35 to #2. A notation entered on the deed indicates that the deed is being re-recorded for the purpose of correcting the parking space number from No. 35 to parking space no. 2. Also in 1992, the Fillers inherited unit #8-A from Sherman. The Fillers have used parking space #2 since 1992, although the Suteras indicate that both parties use parking space #2. In 2003, Feig conveyed unit #8-B to the Suteras, respondents herein. The deed purports to convey the right to use parking space #2. Respondent Filler argues that Sherman, who owned both parking spaces, was entitled to retain as an appurtenance whichever parking space he desired, and that he retained space #2 for his personal use, and deeded away space #35 to Feig. The Suteras answer points out that Sherman failed to reassign parking spaces using a reassignment form used by other owners that would have been recorded and discoverable by the Suteras in the public records. While the procedural history of this parking space dispute is somewhat labored, the law to be applied in this instance is clear. The declaration may create use rights appurtenant to a particular unit as provided by s (2), Florida Statutes (2001). Pursuant to s (4), Florida Statutes, with certain exceptions not relevant here, no amendment to the declaration may materially alter 5 Attached to the petition is an affidavit from Ms. Filler where she denies initialing or otherwise joining in this corrective deed. 5

6 or modify the appurtenances to the unit without first obtaining the approval of all the unit owners and mortgagees of record; that is to say, the appurtenances to the units may not be materially altered or diminished without the unanimous consent and approval of all owners of record. 6 The documents at issue in this case create covered parking spaces as limited common elements, the use of which is appurtenant to a specific unit. Pursuant to s (4), Florida Statutes, these appurtenant rights cannot be changed without the consent of all the owners. Moreover, these rights pass with the transfer of the assigned unit as an appurtenance thereto. The declaration here first provides that the parking space cannot be separately conveyed from the unit to which it is assigned, then provides that once assigned by the developer, the spaces may not be reassigned without the consent of the owner. In the present case, the greater weight of the evidence supports the following findings of fact and conclusions of law. First, the developer did initially assign space #35 to unit 8-A, and space #2 to unit 8-B. In 1972, Sherman purchased unit 8-B which had as an appurtenance the exclusive right to use space #2. In 1990, Sherman, who already owned unit 8-B, purchased unit 8-A, and the deed mis-identified the parking space appurtenant to unit as space #2. Since the 6 While amendments to the statute have been passed that attempt to permit or facilitate the transfer of use rights in limited common elements (see, for example, Ch , Laws of Florida), these amendments to the statute cannot be applied to an appurtenance created prior to the effective date of the statutory amendment without impairing vested contractual rights. 6

7 right to the exclusive use of space #35 had already been made an appurtenance to unit 8-A by virtue of the reassignment of parking space contained in the record of this proceeding, the right to use the space followed the transfer of unit 8-A as a matter of law regardless of the erroneous description in the deed. Accordingly, after Sherman purchased unit 8-A, Sherman owned unit 8-A with space #35 as an appurtenance, and Sherman owned unit 8-B with space #2 as an appurtenance to that unit. There is only a paucity of evidence to support the proposition that Sherman re-assigned the spaces such that unit 8-A became aligned with space #2 and visa versa. The parties have produced no document recorded in the public records, or any written re-assignment instrument signed by Sherman or other expression of this intent other than the contested amendment to the deed. The fact that the parties were able to produce other written assignments or re-assignments supports the inference that the parties were generally aware of these written instruments that were in general use. It cannot be merely assumed in the absence of competent evidence that this re-assignment occurred. Therefore, at the time that Sherman conveyed title to unit 8-B to Feig in January of 1992, unit 8-B had as an appurtenance the exclusive right to use space #2. While this result is flatly contradicted by the affidavits of Fein and the broker, this result at the same time is buttressed by the affidavit of Filler, co-grantor to the deed, which attests that Filler did not sign or initial or otherwise join in the so-called corrective sideline amendment to the original deed in March However, this conclusion is 7

8 reinforced by the language of the original deed clearly showing that along with the transfer of title to unit 8-B came the right to exclusive use of parking space #35. Accordingly, based on the totality of the evidence, the arbitrator concludes that parking space #2 is appurtenant to unit 8-B, and that space #35 is an appurtenance to unit 8-A. The Fillers as owners of unit 8-A are entitled to use parking space #35. The Suteras as owners of unit 8-B are entitled to use space #2. DONE AND ORDERED this 12 th day of August, 2004, at Tallahassee, Leon County, Florida. Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre Tallahassee, Florida 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 12 th day of August, 2004: Karl Bork, Esquire P.O. Box Hallandale Beach, Florida Edward and Elaine Filler 427 Golden Isles Dr., Apt. 8-A Hallandale Beach, Florida Carmelo and Mimma Sutera 427 Golden Isles Dr., Apt. 8-B Hallandale Beach, Florida Karl M. Scheuerman, Arbitrator 8

9 Right to Appeal As provided by s , F.S., this final order may be appealed by filing a complaint for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. Attorney s Fees As provided by s , F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B , F.A.C. requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45 day period and must conform to the requirements of rule 61B , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. 9