STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES. v. Case No.

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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 VISTA DEL MAR ASSOCIATION, INC., Petitioner, v. Case No DAVID LLOYD and GLENN RENEGAR, JR., Respondents. / FINAL ORDER A formal hearing was held on this matter on May 12, 1998, at 11:00 a.m. by telephone conference, with the arbitrator appearing in his office in Tallahassee and petitioner appearing in the conference facilities of counsel for petitioner located in St. Petersburg, Florida. Renee Gordon, Esq., appeared on behalf of petitioner. Immediately prior to the hearing, Scott Brainard, Esq., counsel for respondent David Lloyd, informed the arbitrator by telephone that respondent would not be appearing and that respondent stipulated to the introduction o f petitioner s documents and testimony into evidence. 1 A default has been previously entered against Mr. Renegar for failure to file an answer. Petitioner tendered documents into evidence and presented the testimo ny of a witness. This order is entered upon consideration of the complete record in this matter. 1 Mr. Brainard had previously filed a letter stating that his client had chosen not to participate in the hearing; however, the letter did not stipulate to the introduction of any evidence. According to Mr. Brainard s letter, his client understands that the only evidence that the arbitrator would hear would be evidence provided by petitioner, and that he is willing to allow the arbitrator s decision based upon the arbitrator s review of that evidence. 1

2 Petitioner claims that respondents are illegally occupying a covered parking space. Respondents own condominium unit 303 and use covered parking space 34. Notwithstanding the association s demand that they either lease the covered parking space or cease to occupy it, they assert that it is an appurtenance to their unit and continue to occupy it. Article 6.2 of the declaration of condominium provides as follows: 6.2 Limited Common Elements (A) Automobile Parking Space. Parking spaces may be assigned by the Developer. In the event a specific parking space is assigned in connection with the sale of a Unit by the Developer, the right to the exclusive use of the said designated parking space shall pass as an appurtenance to the Unit, and the Association shall not thereafter reassign or change the said Unit Owner s parking space without his written consent, provided, further, said Unit Owner shall not transfer or assign use of the said parking space except in connection with the sale of the condominium Units. Each Unit shall be entitled to one parking space. Thereafter spaces shall be guest spaces or assigned at the discretion of the Board of Directors. (emphasis supplied) No evidence was introduced, nor were any allegations made, that the developer assigned covered parking space 34 in conjunction with its sale of the unit. Accordingly, since respondents do not have an assignment of parking space 34 which arose fro m the sale of the unit from the developer, they do not have a right to the exclusive use of parking space 34, absent a lease or assignment by the association. In 1981, after their purchase of the unit from the developer, the original purchasers of unit 303 bought covered parking space 34 from the association. The parking space was transferred by a bill of sale and was executed by the then-president of the association. According to the bill of sale, in consideration for the payment of $850.00, the association... does grant, bargain, sell, transfer and deliver unto the said parties of the second part (the Campbells-the original owners of unit 303), their executors, administrators and assigns, the following goods and 2

3 chattels: CARPORT NUMBERED 34 COVERED PARKING SPOT... To Have and to Hold the same unto the said part(y) of the second part, their executors, administrators and assigns forever.... The association cannot convey portions of the common elements to unit owners. Section , Florida Statutes. However, in this instance, the bill of sale does not purport to convey porti ons of the common elements. Although the bill of sale was awkwardly drafted, it shows the intent of the association to sell the right to the exclusive use of covered parking space 34. As quoted above, such an assignment is authorized by article 6.2 of the declaration. Notwithstanding there being a valid assignment of covered parking space #34 in 1981 to a prior owner of respondents unit, there was no evidence that respondents ever were assigned a right to use covered parking space 34. In 1987, the first owners of the unit, who purchased it from the developer and obtained an assignment of parking space 34 from the association, sold the unit to the second owner and separately executed a warranty deed conveying their interest in covered parking space 34 to the second owner. In 1992, due to financial hardship, the second owner assigned his rights to use parking space 34 back to the association in return for a $850 credit on his outstanding debt to the association. As there was evidence that parking space 34 was reassigned to the association and there was no evidence that respondents themselves received any assignment of rights, it is determined that respondents have no rights to use covered parking space 34 pursuant to the original assignment in 1981 to the first purchaser. Based upon the foregoing, it is concluded that respondents are illegally occupying covered parking space 34, unless they prevail on an affirmative defense. 2 2 Although respondents do not have rights to use covered parking space 34, article 6.2(a), 3

4 Respondent raised the affirmative defenses of estoppel and selective enforcement in his answer. As these defenses are based on facts upon which respondent introduced no evidence, they are stricken. Respondent s defense of estoppel relied primarily on the allegation that he had some rights to the covered parking space by virtue of the prior assignment. As it has been found that the parking space was reassigned, this defense would have been stricken in any event. It is also worth mentioning that although respondent raised the defense of selective enforcement, that he placed himself on a parking space waiting list for a first-come, first-serve assignment, and the association unreasonably gave a space to another owner who had signed up later, this allegation would not have been comparable to respondent s violation of illegally occupying a parking place. Based upon the foregoing, it is therefore ORDERED and ADJUDGED that: Respondents are hereby ordered to vacate covered parking space 34, unless they lease it in the future from the association. The association is not obligated by this order to lease parking space 34 to respondents. DONE this 22st day of May, 1998 at Tallahassee, Leon County, Florida. entitles them to one parking space; however, the location of this is at petitioner s discretion, which must be exercised reasonably. Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. 4th DCA 1981). 4

5 William Oglo, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency and is not appealable to the district courts of appeal. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was sent by U.S. Mail to: Renee Gordon, Esq., Gay & Gordon, P.A., P.O. Box 265, St. Petersburg, FL , attorney for petitioner; James Strome, President, Vista Del Mar Association, Inc., th Ave., S., #105, St. Petersburg, FL 33711, qualified representative for petitioner; C. Scott Brainard, Esq., Fisher & Sauls, P.A., 100 2nd Ave. South, Suite 701, St. Petersburg, FL 33701, attorney for respondent David Lloyd; and Glenn Renegar, th Ave., #303, St. Petersburg, FL 33711, respondent; on this 22st day of May, William Oglo, Arbitrator 5