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 ELWOOD SWYERS; EVONNE J. BAYER; LINDA F. LABES; GEORGE MORGAN and MARIAN C. MORGAN, his wife; JAMES S. CRAWFORD and PATRICIA CRAWFORD, his wife, Petitioners, v. Case No PALMA DEL MAR CONDOMINIUM ASSOCIATION NO. 1 OF ST. PETERSBURG, INC., Respondent. / SUMMARY FINAL ORDER This order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to enter a summary order where there are no disputed issues of material fact. Elwood Swyers, Evonne J. Bayer, Linda F. Labes, George and Marian C. Morgan and James S. and Patricia Crawford (petitioners) filed a petition for mandatory non-binding arbitration against the Palma Del Mar Condominium Association No. 1 of St. Petersburg, Inc. (association) on January 27, The petition alleges that the association plans to repair the steel balcony columns, repair floor damage on the balconies at sliding glass door tracks (interior and exterior), waterproof slider sills as required, re-caulk and repair slider jambs, reverse the slope or pitch of the balcony slab (to prevent water from pooling at the balcony-sliding glass door interface), and waterproof the balcony, in violation of the condominium documents. Specifically, the petitioners allege that the areas in question do not constitute common elements that the association is responsible for maintaining, and that the work constitutes a material alterat ion of the common elements that has not been approved by

2 the unit owners. The association denies that the areas to be repaired/corrected are not common elements for which the association bears maintenance responsibility. The arbitrator noticed her intent to decide the case summarily o n March 1, The parties filed their written arguments on March 14, In March and July 1999, the association obtained several engineering reports from Tech Management, Inc. concerning the structural integrity o f the balconies serving the condominium units and the overall structural integrity of the condominium building. The reports identified defects located in both the balconies and the condo minium building itself. The reports recommended repairs and/or reinforcement of the steel columns supporting the balconies, repairs to the concrete floor slab of the balconies and the floor slabs within some units to correct concrete spalling, correction of the negative slope of some of the balconies (which permits water intrusion into the units), and repair of the slider sills of the sliding glass doors leading from the unit onto the balcony. The engineering reports did not indicate whether the defects were located on common elements, repair of which the parties agree is the responsibility of the association, or whether they were located within the boundary of a particular unit, as defined by the declaration of condominium, which would be the responsibility of the individual unit owner. On December 28, 1999, the board passed a resolution for a special assessment to pay for the repairs and improvements, and the associat ion is moving forward to make the repairs contemplated under the Tech Management reports. In support of their position, the petitioners reference Articles 4.04 and 13 of the declaration which provide in pertinent part as follows: 4.04 Unit Boundaries: Each unit shall include that part of the building containing the unit that lies within the boundaries of the unit as follows: (1) The upper and lower boundaries of the unit shall be the following boundaries extended to an intersection with perimetrical boundaries. * * * 2

3 Article 13 provides: (b) Lower Boundaries: The horizontal plane of the undecorated finished floor. (2) Perimetrical Boundaries: (a) Exterior Building Walls: The intersecting vertical planes adjacent to and which include the undecorated interior surface of the outside walls of the unit building bounding the unit and fixtures thereon, and when there is attached to the building a balcony or other portion of the building serving only the unit being bounded, such boundaries shall be intersecting vertical planes adjacent to and which include all of such structures and fixtures thereon. No balconies or existing terraces on any floor shall be extended or enclosed in any way whatsoever by a unit owner, except with the prior written consent of the Association or the Developer. (emphasis supplied) There are limited common elements appurtenant to each of the units in this condominium, such as patios, balconies and assigned parking spaces as shown and reflected in the Floor and Plot Plans set forth on Exhibit A attached hereto and in paragraph 8.01(12) hereof. These limited common elements are reserved for the use of the units appurtenant thereto to the exclusion of other units, and there shall pass with a unit, as appurtenant thereto, the exclusive right to use the limited common elements so appurtenant. Expenses of maintenance and repair relating to the interior surfaces of such limited common elements shall be borne by and assessed against the individual unit owner, except for the maintenance expense for all parking spaces which shall be considered common elements for the purpose of cost of repair and maintenance. Any expenses of maintenance, repair or replacement relating to the exterior surfaces of such limited common elements, or involving structural maintenance, repair or replacement shall be treated and paid for as a part of the common expenses of the Association. (emphasis supplied) These provisions do not support the petitioners position. Article 4.04 provides that a unit include[s] that part of the building containing the unit that lies within the boundaries of the unit as follows:...when there is attached to the building a balcony or other portion of the building serving only the unit being bounded, such boundaries shall be intersecting vertical planes adjacent to and which include all of such structures and fixtures thereon. This description of the boundaries of the unit seems to indicate that the balcony is a part of the unit. See Vinik v. Taylor, 270 So. 2d 413 (Fla. 3

4 4th DCA 1972) (under declaration provision establishing boundaries, balcony held to constitute a part of the unit where unit boundary included, with regard to balcony servicing only the unit being bounded, all of such structures and fixtures thereon). However, Article 13 clearly designates balconies as limited common elements, and does so in the context of maintenance, the issue in this case. In construing a contract, it is a basic rule that a specific clause takes precedence over a general clause. See Raines v. Palm Beach Leisureville Community Association, 317 So. 2d 814 (Fla. 4th DCA 1975). Article 13 supports designation of the balcony as a limited common element. In addition, Article 4.04(1)(b), states that the lower boundary of the unit is [t]he horizontal plane of the undecorated finished floor. This indicates that the floor stab (as contrasted to the decorated, finished floor), whether of the unit or of the balcony, is outside the boundary of the unit. In a previous arbitration case involving virtually identical declaration provisions, the arbitrator determined that the unit included the balcony space from the top of the floor slab up, including railings, screens and anything else affixed to the balcony, and that the balcony slab was a common element. See Sturman v. Harbour Royal Condominium Association, Inc., Arb. Case No , Final Order (September 28, 1995). Article of the declaration provides that the maintenance of the common elements shall be the responsibility of the association, and Article 22.01(1) provides that the costs of operation, maintenance, repair and replacement of the common elements and limited common elements are common expenses. As the balcony is a limited common element, and the repairs involve removing and replacing deteriorated concrete and correcting the slope of the floor slab, which is not a part of the unit, the association is responsible for performing the repairs. The petitioners also argue that the balcony, even though exposed to the exterior, [is] the responsibility of the unit owner and requires the unit owner who is entitled to the exclusive use of the limited common elements to also maintain them. The arbitrator notes that this argument 4

5 assumes that the balcony is a limited common element. Actually, Article 13 requires the unit owner to maintain the interior surfaces of the balconies only. The association is required to maintain the exterior surfaces of the balcony. Further, Article 13 designates as a common expense [a]ny expenses of maintenance, repair or replacement...involving structural maintenance, repair or replacement. (emphasis supplied). Fact-finding is unnecessary to conclude that correction of the negative slope of the balcony, repair of columns supporting the balconies, and repair of deteriorated sliding glass doorsills, involve structural maintenance, repair and replacement. The declaration s apportionment of responsibility for maintenance of the condominium property at large also supports the association s position that the balcony repairs are a collective responsibility. Article obligates the unit owner to maintain in a clean and sanitary manner, and repair, his unit and all interior surfaces within or surrounding his apartment unit (such as the surfaces of the walls, ceilings, floors), whether or not a part of the apartment or common elements.. Article prohibits the unit owner from making any alteration, decoration, repair, replacement or change of the common elements or to any outside or exterior portion of the building... without the association s consent. The court in Schmidt v. Sherrill, 442 So. 2d 963 (Fla. 4th DCA 1983), defined outside walls as all walls which are exposed to the elements and the outer surfaces of all walls which define the indoor living space of the condominium unit. (at 965). In the arbitration case of Schlegel v. Fisherman s Cove Association, Inc., Arb. Case No , Final Order (April 4, 1996), which involved the issue of whether the association or unit owners were responsible for balcony repairs, the arbitrator found that a unit balcony damaged by sea water spray undeniably is an outside or exterior portion of the building. Thus, the balcony in this case is an outside or exterior portion of the building, an area that the unit owner is prohibited fro m altering, repairing or changing. An owner cannot be held responsible for maintaining portions of the property that the declaration prohibits him from repairing or replacing. The petitioners further argue that even if 5

6 the association is responsible for repairing the limited common elements as contemplated by Tech Management, Inc., the control given to the association is limited to the extent that there can be no material alterations or substantial additions to the common elements or to the real property which is association property, except in a manner provided in the declaration. F.S (2). Section , Florida Statutes, provides in pertinent part as follows: (2) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration. If the declaration does not specify the procedure for approval of alterations or additions, 75 percent of the total voting interests of the association must approve the alterations or additions. The petitioners contend that the work the association proposes to do requires that the glass sliders be removed and replaced with smaller sliders, causing the exterior walls in so me units to become larger, and that a concrete step be installed on the balcony slab, reducing the floor area of the balconies. Florida case law runs contrary to the petitioners assertion. A "material alteration or addition" is one that "palpably or perceptively var[ies] or change[s] the form, shape, elements or specifications of a building in such a manner as to appreciably affect or influence its function, use or appearance." Sterling Village Condominium, Inc. v. Breitenbach, 251 So. 2d 685, 687 (Fla. 4th DCA 1971). However, where an alteration or addition is necessary to maintain or preserve the common elements, it is exempt from the requirement of unit owner approval. See Tiffany Plaza Condominium Association, Inc. v. Spencer, 416 So. 2d 823 (Fla. 2d DCA 1982) (assuming construction of rock revetment was necessary to protect the common elements from damage, unit owners approval was unnecessary); Ralph v. Envoy Point Condominium Association, Inc., 455 So. 2d 454 (Fla. 2d DCA 1984) (installation of vertical seawall did not require unit owner approval where it was necessary to protect common elements; fact that it constituted a material alteration did not prevent board from taking action required to maintain the common elements). The fact that the 6

7 repairs in this case may result in some change or improvement of the balconies does not render the repairs subject to unit owner approval. Based on the foregoing, it is ORDERED: The relief requested by the petitioners, an order prohibiting the association from repairing and/or improving the balconies and sliding glass doorsills, and from collecting the special assessment to fund the work, is DENIED. 7

8 DONE AND ORDERED this 6th day of April 2000, at Tallahassee, Leon County, Florida. Patricia A. Draper, Arbitrator Department of Business and Professional Regulation Arbitration Section 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 and mailing 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 action and is not appealable to the district courts of appeal. CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the forego ing was mailed by U.S. mail, postage prepaid, to Giorgio Vallar, Esq., Vallar & Weaver, P.A., 1130 Pinehurst Road, Suite D, Dunedin, FL and Joseph R. Cianfrone, Esq., 1968 Bayshore Boulevard, Dunedin, FL this the 6th day of April Patricia A. Draper, Arbitrator 8