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 Robert Busch and Kathleen Busch, Petitioner, v. Case No Oceania II Condominium Association, Inc., Respondent. / FINAL ORDER OF DISMISSAL FOR LACK OF JURISDICTION On September 16, 2008, Petitioners filed a Petition for Mandatory Non-Binding Arbitration against Oceania II Condominium Association, Inc. (Association). Petitioners allege the Association has refused to allow Petitioners the use of Parking Space #100 as an appurtenance to their purchase of unit 2426 in the condominium by claiming Parking Space #100 belongs to persons owning only a cabana in the condominium. In support of this allegation, Petitioners attached to the petition a copy of a document dated 12/8/93 entitled Receipt Confirmation showing the original purchasers of the unit receiving Parking Spaces #99 1 and #100 from the Association. Petitioners also assert the Association approved Petitioners contract to purchase the unit. In support of this allegation, Petitioners attached to the petition a one page document entitled Residential Sale and Purchase Contract, Optional Clauses, Florida Association of Realtors showing the seller assigned two Parking Spaces #99 and #100 to Petitioners. 1 Parking Space #99 is not at issue in the case at hand. 1

2 By order entered on October 21, 2008, Petitioners were directed to file supplemental information. On October 24, 2008, Petitioners filed the required supplemental information. On December 19, 2008, the Association filed an Answer. In the Answer, the Association denies that Parking Space #100 is an appurtenance to Petitioners unit. The Association alleges that there is a conflicting claim to Parking Space #100 by Clive Lewis and Teresa Lewis who own a Cabana Unit within the condominium governed by the Association and a residential unit in a condominium within the same development but not governed by the Association. The Association alleges that the original owner of unit 2426 assigned Parking Space #100 to the Lewises in January 2003 around the time the original owner sold the unit to a third party. Thus, it is clear that Petitioners did not purchase the unit from the owner who bought the unit and the additional Parking Space #100 from the developer but rather from an intervening owner. In the Answer, the Association asserts that it has no authority to allow or disallow to Petitioners the rights to Parking Space #100. Although the Association approved Petitioners to purchase the unit, the Association alleges such approval was not approval of the terms of Petitioners contract to purchase. The Association acknowledges in the Answer that based upon the language of the condominium documents, there may be an issue whether the Lewises, who only own a cabana unit in the Oceania II condominium, are entitled to Parking Space #100. The Association requests the Lewises be made a party to the arbitration proceeding. On December 29, 2008, Petitioners filed a reply to the answer. In the reply, Petitioners state that the crux of this matter is the assignment of Parking Space #100 to 2

3 the Lewises by the original owner of the unit. The reply also states that the assignment which was never in the Association s possession cannot be valid. follows The Declaration of Condominium (Declaration) provides, in pertinent part, as AUTOMBILE PARKING AREAS. Each Residential Unit is entitled to the exclusive use of one (1) parking space. The Sponsor [Oceania Joint Venture, a Florida joint venture] may from time to time prior to the sale of the last Unit, assign the exclusive use of additional parking spaces to a Residential Unit. Sponsor may charge a fee for such assignments and retain the fee for its own account. The parking spaces shall be assigned by the Sponsor, or its designee, at the closing of each Unit. Each assigned parking space is a Limited Common Element for the use and benefit of that Unit as an appurtenance thereto, and shall not subject the owner thereof to any assessments or charges by the Association beyond its percentage share of the Common Expenses as an owner of a Unit. Parking spaces which are not assigned to a Unit shall be Common Elements utilized by the owners of all Units... on a non-exclusive, unreserved basis. All parking spaces are subject to Rules and Regulations adopted by the Association from time to time. No rule or regulation shall effect the assignment of exclusive use as aforesaid. In pertinent part, the Rules and Regulations provide (21) PARKING. The parking facilities shall be used in accordance with the regulations adopted by the Association. The Sponsor s, or its designee, assignment of parking shall, except in emergency circumstances, be final. In addition, to the extent any Unit is assigned the exclusive use of more than one space, the owner of such Unit may assign of record the additional space subject to the restriction that such space may only be assigned to an owner of a Residential Unit, and that at least one space must be assigned to each Residential Unit at all times. Any assignment in contravention of the foregoing shall be void. Section (1), Florida Statutes, provides, in pertinent part, as follows: (1) DEFINITIONS.--As used in this section, the term dispute means any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not to take any action, involving that owner s unit or the appurtenances thereto. 2. Alter or add to a common area or element.... 3

4 "Dispute" does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. According to the Declaration, each assigned parking space is a Limited Common Element for the use and benefit of that Unit as an appurtenance. The Association s Rules and Regulations provide that the owner of any Unit that is assigned the exclusive use of more than one space may assign of record the additional space subject to the restriction that such space may only be assigned to an owner of a Residential Unit. The dispute in the instant case is a dispute excluded from the jurisdiction of the arbitrator pursuant to section (1) as a dispute that primarily involves title. In Florida Tower Condo., Inc. v. Mindes, 770 So. 2d 210 (Fla. 3 rd DCA 2000), the District Court of Appeal affirmed the trial court decision that a dispute over title to and the right to use particular condominium parking spaces, which are by definition, limited common elements, is not subject to the non-binding arbitration provisions of section , Florida Statutes (1999). (citations omitted). The District Court of Appeal declined to follow contrary decisions of arbitrators of the Division. Id. at n. 1. (citations omitted). Irrespective of the statutory exclusion of the dispute, the dispute in this case also is excluded from arbitration by Rule 61B (2), Fla. Admin. Code, because it is a dispute between unit owners. The rule provides, (2) No controversy shall be accepted for arbitration under these rules where the controversy is between or among unit owners, or between or among a unit owner or unit owners and tenants, except where the association is a party and the dispute is otherwise eligible for arbitration. The only disputes eligible for arbitration are those existing between a unit owner or owners and the association or its board of administration;... In 4

5 addition, other unit owners having a particular interest in the proceeding shall be named as parties. The Association appears to have played no part in the approval or disapproval of the assignment from the original owner of the unit to the Lewises, and the Association was not a party to the contract for purchase of the unit between Petitioners and the seller of the unit. Thus, the dispute in this case is between Petitioners and the Lewises over the disposition of Parking Space #100. See, e.g., Trustees of the Bernard Whitsett Living Trust v. Slack, Arb. Case No , Final Order of Dismissal (July 26, 2005)(Petitioner s allegation that rain water leaks through Respondent s sliding glass door, which is limited common element under Declaration, down wall and into Petitioner s unit held, among other things, to be dispute between unit owners under Rule 61B (2), Fla. Admin. Code, and not within jurisdiction of arbitrator). Finally, the arbitrator does not have jurisdiction pursuant to Rule 61B (6), Fla. Admin. Code. That rule provides (6) No petition shall be accepted for arbitration under these rules which alleges the failure by the association to enforce, or properly enforce, the condominium documents, unless the controversy otherwise constitutes a dispute as defined by section , Florida Statutes, and these rules. In the case at hand, Petitioners allege that the Association has not enforced the condominium documents with respect to the assignment of Parking Space #100. Again, this is not a dispute within the jurisdiction of the arbitrator. See, e.g., Kleban v. Lake Tippecanoe Owners Ass n, Arb. Case No , Final Order Determining Jurisdiction (Jan. 28, 1997)(Petitioner s allegation that two bicycles parked on common elements detract from building appearance and board took no action when Petitioner complained to board, held, among other things, to be dispute involving failure of Association to 5

6 enforce or properly enforce condominium documents under Rule 61B (6), Fla. Admin. Code, and not within arbitrator s jurisdiction). Based upon the foregoing, it is ORDERED: Arbitration Case No is DISMISSED for lack of jurisdiction, and Petitioners may seek relief in a court of competent jurisdiction. Florida. DONE AND ORDERED this day of May, 2009, at Tallahassee, Leon County, Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street 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 day of May, 2009: Harvey Busch Collins Avenue Unit #2426 Sunny Isles Beach, FL Qualified Representative Robert Burr, Esq Forum, Suite 1701 Centurion Tower C/O St. John, Core & Lemme, P.A. West Palm, Beach, FL Attorney for Respondent Glenn Lang, Arbitrator 6