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 MRS. JOSEPH M. PHILBIN, Petitioner, v. Case No SHORE MANOR BUILDING OF TOWN APARTMENTS SOUTH, NO. 102, INC., A CONDOMINIUM, Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters this summary final order as follows: The petitioner, a unit owner, commenced this action by the filing of a petition for arbitration on September 26, Her petition seeks to have the arbitrator require that the respondent, the condominium association, repair the frame of an exterior door to the petitioner s unit and replace the door. On October 21, 1997, the arbitrator entered a Notice of Intent to Issue Summary Final Order, noting that the material facts probably will not be in dispute and advising that, if ei ther party believes a material fact is in dispute, it should file a brief statement of such and describe the evidence which would be presented at hearing to dispute such fact. The respondent thereafter filed an answer containing certain denials; however, neither party has filed a statement of facts in dispute or of evidence to be presented at hearing. The October 21 notice o f intent order further advised the parties that, if no objection to summary disposition is filed, they may file written argument. The petitioner filed additional documents embellishing the material previously submitted; however, neither party has presented written legal argument beyond its original pleading, nor has either objected to 1

2 summary disposition. The pleadings of the petitioner and the respondent reflect that both parties agree that the door needs to be replaced or repaired, and that the frame needs to be repaired. The fundamental dispute is which party shall be monetarily responsible for this work. Because the answer to that dispute can be deduced from the condominium documents, the matter to be resolved by the arbitrator is a question of law rather than fact; therefore, summary procedures are appropriate. Both parties cite section 15 of the declaration of condominium, the pertinent portion of which provides as follows: 15. MAINTENANCE: The responsibility for the maintenance of the Condominium unit and parcel as it may apply hereafter with the exception of those responsibilities for management as provided for by the Association in the aforesaid Maintenance Agreement shall be as follows: (a) BY THE ASSOCIATION: The association shall maintain, repair and replace at the Association s own expense: (1) All portions of the units, except interior wall surfaces, contributing to the support of the building, which portions shall include, but not be limited to, the outside walls of the building and load bearing columns. The maintenance section of the declaration further provides: (b) BY THE CONDOMINIUM PARCEL OWNER: The responsibility of the condominium parcel owner with the exception of those responsibilities for management as provided for by the Association in the aforesaid Maintenance Agreement, shall be as follows: (1) To maintain in good condition, repair and replace, at his expense, all portions of the unit, except those portions to be maintained, repaired and replaced by the Association... (2) Not to paint or otherwise decorate or change the appearance of any portion of the exterior of the building... (4) No condominium parcel owner shall make any alterations in the portions of the building which are to be maintained by the Association... without first obtaining approval from the Board of Directors of the Association. 2

3 Section 3 of the declaration provides the following definitions: (a) Condominium Unit - The unit being an apartment space, designated condominium unit on the plat, a copy of which is attached to and made part hereof by reference marked Exhibit A. (b) Common Elements - Portion of the condominium property not included in the condominium unit. (c) Condominium Parcel - The condominium unit, together with an undivided share in the common elements appurtenant thereto. The petitioner argues that the door, although not specifically mentioned in the documents, falls within the association s responsibility to maintain the physical appearance of the building; thus, implicitly, all of the exterior of the building. The petitioner asserts that the association budgets for the maintenance, repair and replacement of unit doors; therefore, there is no substantive reason to deny responsibility for the door here at issue. The petitioner cites article II of the articles of incorporation, which, in enumerating the purposes for which the Corporation is organized, provides, in part,... maintenance of a high standard of the physical appearance of the building... She further cites the maintenance agreement referenced in the declaration, between the maintenance contractor and the association, which provided: 10. That the Maintenance Contractor shall keep the exterior of said condominium building painted and shall furnish the necessary repairs to preserve the exterior appearance of said building against ordinary wear and tear. However, the Maintenance Contractor shall not be responsible for the washing of windows or replacement of same, and shall not be responsible fo r the maintenance of screens that enclose the screen porches... The petitioner explains that the agreement was subsequently canceled and the association became directly responsible for these duties. The answer of the respondent/association ignores the petitioner s arguments based on the articles of incorporation and the management agreement. The association admi ts that the declaration does not specifically refer to the maintenance of doors. The respondent does not squarely address 3

4 the petitioner s assertion that the association budgets for the repair and replacement of unit doors. 1 The respondent asserts, however, that the association does not budget for the maintenance, repair and replacement of the porch enclosure doors. The answer further alleges, It has been the consistent policy of the Association that the maintenance of the porch enclosure and door is the responsibility of the unit owner... The door in question is, by the respondent s own admission, part of the original construction of the building. According to documents attached to the petition, this wooden door with glass louvers is the outside entrance to an enclosed, air-conditioned Florida room, which space was offered as an extra-cost option by the original developer in lieu of the standard screen porches. The space is behind and abuts the exterior masonry wall of the building. The respondent does not now argue that the door is part of a screen porch. 1 An inference may arise under these circumstances that the association considers itself obligated to replace the doors, where it has budgeted for this expense. 4

5 The dispute in this matter originally arose when the association s management company wrote to the petitioner on January 13, 1997, requesting that she replace or repair the back door to her unit. The petitioner took the position that this was not her responsibility. She wrote to the management company, noting that the association had previously repaired her back door. The association responded directly, contending that since the back door is not a common element, it is the petitioner s responsibility. The association s board of directors passed a motion at its March 20, 1997, meeting stating that doors that enclose porches are not common elements and therefore are the direct responsibility of each unit owner. 2 In addition, neither party in the present case now contends that the result turns on whether the door in question is a co mmon element; both agree that it is a part of the unit. When the petitioner did not replace or repair the door, the law firm which represents the petitioner in this arbitration wrote to the claimant asserting that, because the screen porch was part of her unit and within her responsibility, she was formally demanded to repair or replace the door. The claimant responded that the association repairs and replaces unit doors and that selective exclusion of some doors cannot be justified. Finally, on September 4, the firm wrote to the petitioner, asserting that replacement of exterior doors of units falls within the responsibility of each unit owner. The letter adds, Even if previous Boards repaired or replaced exterior doors to some units, the Board has now sought legal advice on the subject, and the Board will have [to] adhere to this advice for the future. Now that the advice has been received, the Board could not continue to take action which does not fulfill the requirements of the Governing Documents. The 2 This would not, however, have the effect of amending the declaration, which in Section 12, provides that an amendment requires a vote of three-fourths of the condominium parcels, nor would the motion, standing alone, make the petitioner responsible for the door. See Earl v. High Point of Delray, Section 5, Arb. Case No , Final Order on Default (March 31, 1995). In Earl, the association was held responsible to repair or replace a unit back door damaged by the sprinkler system where the declaration prohibited the unit owner from decorating or replacing any exterior portion of the building maintained by the association, including doors, despite the board s notification to the membership that, henceforth, the unit owners would be individually responsible for the repair of back doors. 5

6 association has apparently retreated somewhat from the position that it is responsible for none of the doors, since its answer to the petition simply maintains that it is not responsible for porch enclosure doors. Other than the bare assertion that it has not been the custom to replace porch enclosure doors, the association cites no authority for a distinction between front doors and rear Florida room doors. The respondent s answer makes much of the declaration s definition of unit as referring to the lines drawn upon the plat; however, it is undisputed by the parties that the door is part of the unit; the question, rather, is whether it is that part of the unit for which the association bears responsibility. Because the declarat ion excludes from the unit owner s responsibility that which falls upon the association, the key element is the declaration s description of the association s responsibility. The association argues that the association s maintenance responsibility is defined in Section 15 of the declaration as including all portions of the units, except interior wall surfaces, contributing to the support of the building. The association argues that, because the door does not support the building, its maintenance is the responsibility of the unit owner. When interpreting the meaning of a declaration of condominium, every part of the instrument must be given effect. Sweetwater Oaks Condominium Association, Inc. v. Creative Concepts of Tampa, Inc., 432 So.2d 654 (Fla. 2d DCA 1983). The association s argument that, because the door does not support the building, it is not the responsibility of the association, is inconsistent with the condominium documents and must fail. It is clear from the declarat ion, the management agreement referenced therein and the articles of incorporation, that the drafters intended that, except for screens, the exterior surface of the building would be the maintenance responsibility of the association or its contractor. Painting the exterior, for example, is specifically assigned to the maintenance contractor, as are necessary repairs to preserve the exterior appearance of the building. It would be absurd to 6

7 argue that the paint was holding up the building and that this is the reason it is not the unit owner s responsibility. It follows from this that the test is not merely whether an element supports the building. The declaration of condominium may be interpreted using basic rules of interpretation. Koplowitz v. Imperial Towers Condominium, Inc. 478 So.2d 504, 505 (Fla. 4th DCA 1985). One of the basic principles of construction holds that the mention of one thing implies the exclusion of the other. Towerhouse Condominium, Inc. v. Millman, 475 So.2d 674, 676 (Fla. 1985). The drafters in the present case specifically excluded the interior wall surfaces of the unit from the association s responsibility and left to the association all portions of the units... contributing to the support of the building, which portions shall include, but not be limited to, the outside walls o f the building and load bearing columns. (Emphasis added). Since the drafters mentioned the interior of the unit as not being the association s responsibility, it seems logical that doors would have been mentioned if they were to be excluded as well. Failing that, the door must be considered the association s responsibility. 3 For the purposes of this discussion, it is not necessary to determine whether the door should be considered part of the outside wall of the building. 4 The critical element, rather, is 3 Contra Loperfido v. Vista St. Lucie Association, Inc., Arb. Case No , Final Order (February 4, 1993). The petitioner/unit owner sought to have the association held responsible for the repair of weatherstripping around the unit front door. The arbitrator held the unit owner responsible because the declaration held the association responsible for maintaining that portion of the unit contributing to the support of the building and the weatherstripping did not contribute to support. Loperfido is distinguishable from the present case because of the much more specific language defining the responsibilities of the parties. In Loperfido, the arbitrator relied, in part, upon the declaration s provision that unit was defined as including the exterior of the outside walls of the building and fixtures thereon. Because the weatherstripping was a fixture and the declaration stated that unit owners shall be responsible for the maintenance of fixtures within units, except those to be maintained by the association, the weatherstripping was the responsibility of the unit owner. 4 But cf. Davidson v. Clearwater Key Association -- Bayside Gardens, Inc., Arb. Case No , Summary Final Order (April 10, 1995). The unit owner/petitioner sought reimbursement for repairs to sliding glass door screens. The arbitrator noted that a door is not a wall as a matter of usage. Because the Davidson case turned on the holding that the association was not responsible for the screen door because it was not an external wall and therefore not a common element as defined by the declaration, its holding is inapposite. The present case, as noted, supra, does not turn on the distinction between a common element and a unit. 7

8 that the condominium documents reflect that their intent was that the door be the responsibility of the association. See Ouziel v. Ambassadors East Condominium Association, Inc., Arb. Case No , Summary Final Order (August 12, 1997), in which the petitioner/unit owner sought reimbursement for window replacement. The declaration defined the responsibility of the unit owner as repairing and replacing interior surfaces of his apartment, but providing that he was not to alter the exterior of the building, including doors and windows, without approval of the board. The arbitrator held that, where the declarat ion was unhelpful in identifying which party is responsible for the window and attached hardware and the associat ion was responsible for maintaining the common elements and the exterior, the language in the declaration prohibiting the unit owner from altering the exterior was significant in ascertaining the drafter s intent. The arbitrator held that the windows were common elements within the responsibility of the association. In the present case, the unit owner is prohibited from painting any portion of the exterior or altering portions to be maintained by the association, which include the outside walls. The parties differ over whether the damage to the door and frame was caused by landscape sprinklers, with the petitioner denying same. Because the condominium documents do not assign responsibility contingent upon fault or causality, the reason for the damage is immaterial. The parties now differ over whether the door can be repaired or needs to be replaced, with the petitioner insisting upon the latter. From the photographs accompanying the pet ition showing the condition of the door, which is obviously losing it s structural integrity and missing glass louvers, and considering its age of over 30 years and location on the bay side of the building, the referee concludes that any repair would be only stopgap and the more reasonable solution would be replacement. The wooden frame is in poor condition, offering little support for the strike plate. 8

9 REMEDY Based on the foregoing, it is therefore ORDERED: The relief sought by the petitioner is GRANTED. The respondent/association shall, within 30 days from the date of this Order, replace at association expense the Florida room door of the petitioner s unit with one of comparable function and of an appearance conforming with the existing exterior of the building. The respondent shall also repair the door frame to fully restore it to secure function, including replacing any damaged wood, as well as the hinges, screws and other necessary parts. DONE AND ORDERED this 1st day of April, 1998, at Tallahassee, Leon County, Florida. Tyler Powell, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been sent by U.S. Mail to Mrs. Joseph M. Philbin, 1898 Shore Dr. South, #108, South Pasadena, FL 33707, and to James De Furio, Esq., Becker & Poliakoff, P.A., 33 North Garden Ave., Ste. 960, Clearwater, FL Right to Appeal Tyler Powell, Arbitrator In accordance with Section , Florida Statutes, a party who is adversely affected by this final order may appeal from the order by filing, within 30 days of entry of this 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 action and is not appealable to the district courts of appeal. 9