STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION SIGRID E. REUTHER, Petitioner, v. Case No BEACH ROAD CONDOMINIUM ASSOCIATION, INC., Respondent. / FINAL ORDER This order is entered pursuant to Rule 61B , Florida Administrative Code, which requires the arbitrator to enter an order denying relief where there are no disputed issues of material fact and the arbitrator finds that no preliminary basis for relief has been demo nstrated in the petition. FINDINGS OF FACT 1. On September 30, 1998, Sigrid E. Reuther (petitioner or unit owner) filed a petition for arbitration against 400 Beach Road Condominium Association, Inc. (respondent or association). The association is responsible for the operation of the 400 Beach Road Condominium. 2. The petitioner purchased two contiguous studio apartments (uni t nos. 156 and 157) in the condominium on December 12, The petition alleges that approximately four mo nths after the petitioner purchased her units, the association removed a door and partition leading into an alcove or foyer between the petitioner s two units, repainted the area, and removed items of the petitioner s furniture and furnishing that were in the foyer. The petitioner claims that she has the right to exclusive use of the area and requests that the arbitrator enter an order requiring the association to restore the wall and 1

2 door that it removed, to repaint the resulting interior foyer to its previous condition, and to replace her furnishings and furniture. 4. The petition alleges that the pet itioner paid a premium over what the units would have been worth otherwise because the units were accessed by a private foyer between them and the common, outdoor hallway. The petition alleges that both the door creating the foyer and the foyer had been there since the building was built more than 20 years ago, and that the former owner of the two units, who sold the units to Reuther, always had exclusive use of the foyer and had the only key to the door. Further, the petition alleges that the foyer has Mexican tile running into one of the studios, indicating that the foyer and unit were tiled simultaneously. 5. The petitioner redecorated and furnished the foyer at great expense, and also redecorated and refurnished both units. On April 7, 1998, four months after pet itioner purchased the units and after the petitioner had redecorated the units, the association s lawyer wrote to the petitioner demanding that she remove all of her furniture from the foyer, restore the foyer to its original color, and install new numbers on the doors to the units. The letter further stated that the door leading to the foyer would be removed and an archway installed instead. The letter stated that the locked door violated the town of Indian River Shores Fire Ordinance and that the association had been cited for the violation (the Fire Inspector for the town of Indian River Shores had issued an order requiring removal of the lock because the door blocked a means of egress from a common element area). 6. Petitioner obtained the services of a lawyer and sought to resolve the situation with the association. The petitioner offered to remove the lock to the outside door and keep the door unlocked in the future. The petitioner further offered to lease the furniture located in the foyer to the condominium association for $1.00 per year. The association rejected the offer of compromise by letter of May 18, 1998, and without further notice removed the petitioner s furniture and the door. 2

3 7. The petitioner contends that she is ent itled to the exclusive use of the foyer because 1) the association has waived any right, title and interest to the foyer and door leading to the foyer because it waited too long to enforce its rights in the area; 2) previous owners had excluded the association from use of the area without complaint or action; and 3) the failure of the association to claim its right to the area (in a timely manner) as to previous owners/occupants should result in the forfeiture of the association s ability to enforce any rights it might have to exclude the petitioner from exclusive use of the foyer. 8. The association filed its answer to the pet ition on November 4, The association states in its answer that it is without knowledge as to the use of the foyer area by the previous owner(s) and whether the previous owner was the only one with a key to the door separating the foyer from the outdoor hallway. The association further denies any knowledge as to whether the door creating the foyer and the foyer have existed since the building was originally built. 9. Article 3.a. of the declaration of condominium defines apart ment as a unit as defined by the Condominium Act. The declarat ion further states in Article 5 that the apartments exclud[e], however, all spaces and improvements lying beneath the undecorated or unfinished inner surfaces of the perimeter walls and floors, and above the undecorated or unfinished inner surfaces of the ceilings of each apartment, and further exclud[e] all spaces and improvements lying beneath the undecorated or unfinished inner surfaces of all interior bearing walls or bearing partitions... Article 5 also refers to floor plans attached to the declaration as Exhibit C and states that the perimetrical boundaries of the apartments are represented by heavy solid lines. The petitioner s units are located on the northwest corner of the building on the first floor. Exhibit C-7 shows the first floor plan of the southwest corner of the building and states that it is similar to the northwest corner of the building. The foyer area is not included within the heavy solid lines of either of the corner units. 10. Article 5 further defines limited common elements to mean that portion of the 3

4 common property consisting of 105 separate and designated parking spaces. No other limited common elements are designated by the declaration. CONCLUSIONS OF LAW While there are disputed issues of fact involved in this case, it is the view of the undersigned that these facts are not material because even if the petitioner succeeded in proving her allegations, the relief she requests could not be granted. Thus, for the purposes of this order, the petitioner s allegations are assumed to be true. Under the Condominium Act and the declaration of condominium applicable in the instant case, the petitioner has the exclusive possession of her units and of certain limited common elements. The declaration defines apartment to mean a unit as defined by the Condominium Act. Section (24), Florida Statutes, defines unit to mean a part of the condominium property which is subject to exclusive ownership. The remainder of the condominium property is held in common by all of the unit owners in the condominium and subject to use by all of the unit owners. See Section (2)(a), Florida Statutes (there shall pass with each unit an undivided share in the common elements); Section , Florida Statutes (all common elements serving any condominium shall be available to unit owners in the condominium for the use intended for such common elements). For a common area to be reserved for the use of a particular unit or units, to the exclusion of other unit owners, the area must be designated in the declaration of condominium as a limited common element appurtenant to the unit or units. Section (2)(b), Florida Statutes. The petitioner does not allege that the foyer area in dispute is a part of her units or that it is a limited common element appurtenant to her units. The declaration of condominium clearly delineates limited common element areas and the declaration does not specify that the foyer is a limited common element. Nor does the declaration show that the foyer is a part of the petitioner s units. It 4

5 can be concluded, then, that the foyer is neither a part of the petitioner s units, nor a limited common element. Clearly, the petitioner s attempt to possess the foyer to the exclusion of the association, and all other unit owners, conflicts with the declaration. In order for her to have exclusive possession of the foyer, an amendment to the declaration approved by all unit owners would be required. See Section (4), Florida Statutes ( [u]nless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially alter or modify the appurtenances to the unit... unless all record owners of all other units approve the amendment ); see also Kamfjord v. Harbour Green Condominium Association, Inc., Arb. Case No , Summary Final Order (Oct. 28, 1993)(arbitrator determined that a proposed expansion o f a limited common element patio onto the common elements would change the appurtenances to the units, requiring approval of 100 percent of the owners; the patio extension would result in a smaller portion of the common elements being available for use by the other unit owners, thereby diminishing the common elements appurtenant to the units). The declaration in the instant case does not provide for approval o f such changes by less than 100 percent of the unit owners. The sole basis for the petitioner s claim to exclusive use of the foyer is that the association has waived its rights in the area by failing to complain about its use and failing to take action against the previous owners of the units, who excluded the association from the area by locking the entry door and treating the area as a limited common element, and by not taking action sooner against the petitioner, who also treated the area as a limited common element. As a defense to the petitioner s claim, the association argues that the petitioner seeks to convert common property to her private use or alternatively to limit the use of common property in contravention of the governing documents and the Condominium Act. Also, in response to the 5

6 petitioner s claim of adverse possession or easement by prescription of the foyer, the association states that at no time has the association failed to possess the foyer area openly or failed to exercise its rights such that an easement by prescription would arise. The petitioner s claim is not based on any affirmative right granted to her by the condominium documents or Chapter 718, but is grounded on the equitable principles of estoppel and waiver. The elements of equitable estoppel are: 1) a representation, by the party sought to be estopped, about a material fact that is contrary to a later-asserted position; 2) reliance by the petitioner on the first representation; and 3) a change in position to his detriment by the party claiming the estoppel caused by the representation and reliance. Enegren v. Marathon Country Club Condominium Association, Inc., 525 So.2d 488 (Fla. 3rd DCA 1988). The first element of equitable estoppel is a representation o f material fact that is contrary to a later-asserted position. The petitioner does not allege that the association approved her predecessor s use of the foyer area or otherwise acted affirmatively regarding the area. Rather, the petitioner relies on the association s silence, or failure to object to the previous owner s action of using the foyer as a limited common element, to establish a contrary representati on. Estoppel may derive from silence or inaction where there is a duty to speak or act that leads another to do that which he would not have done but for such silence. Ennis v. Warm Mineral Springs, Inc., 203 So.2d 514 (Fla. 2nd DCA 1967) citing with approval 31 C.J.S. Estoppel s. 87. However, estoppel will not lie unless the party seeking to assert it is ignorant of the truth. See Brickell Bay Club Condominium Association, Inc. v. Hernstadt, 512 So.2d 994, 997 (Fla. 3rd DCA 1987), review denied, 520 So.2d 584 (Fla. 1988). In Brickell Bay, the unit owners converted a structure located on the roof of the building, adjacent to their unit, into a bathroom and bedroom to be used for servant quarters as part of their unit. The structure, which was not included in the original plans, was added during the construction 6

7 of the building for the sole purpose of housing air conditioning equipment for a restaurant and club located in the unit later purchased by the Hernstadts. The Hernstadts brought suit to establish their ownership of the roof structure and the trial court awarded them exclusive use o f the structure on the grounds of estoppel. The appellate court reversed, indicating that where the declaration of condominium required written approval by t he association for an alteration to the common elements, and where the association took no affirmative action allowing the alterations, the principles of estoppel and waiver could not be applied to the association s failure to take affirmative steps to prevent the renovation. The court noted that a declaration is a requirement of Section (1), Florida Statutes, for relationships between condominium unit owners and the condominium association, and that it assumes some of the attributes of a covenant running with the land, circumscribing the extent and limits of the enjoyment and use of real property, citing Pepe v. Wispering Sands Condominium Association, 351 So.2d 755 (Fla. 2nd DCA 1977). Thus, the declaration is to be strictly construed to preclude any use not explicitly authorized by the declaration. Additionally, the estoppel principle generally has no application to transactions which are forbidden by statute or ordinance or which are contrary to public policy; it is an equitable doctrine which is applied only where to refuse its application would be virtually to sanction the perpetration of a fraud. Brickell Bay, above. In the instant case, assuming as true the facts set forth in the petition, the association failed to object to the previous owner s decoration and exclusive use of the foyer area and failed to notify the petitioner of its objection until approximately four months after she purchased the units. In light of the declaration which provides that the foyer area is a common element but not a limited common element, and Section (4), Florida Statutes, which requires an amendment to the declaration in order for the area to be a limited common element (i.e., reserved for the exclusive use of a particular unit or units), the petitioner could not have been misled. The law and declaration are 7

8 crystal clear in this regard. For these same reasons, the petitioner has failed to allege a contrary representation based on the association s failure to notify her of the violation for a period of approximately four months after she purchased the units. Thus, it is concluded that the facts alleged by the petitioner do not support a claim based on estoppel. Attachments to the petition indicate, in fact, that the petitioner may well have been misled, although not by the association. The sales brochure for the two units contains a photograph of the foyer area with the caption: Entrance hall to the two studios. The letter sent by the petitioner s attorney to the association s attorney on April 30, 1998, regarding the foyer area, states this area was represented to [Reuther] as part of her units and not common areas... John s Island Realty and specifically Jack Mitchell told Ms. Reuther that this area was part of her units and, in fact, he was the one who suggested she decorate the area. There is nothing in the record to suggest that John s Island Realty or Jack Mitchell is authorized to act on behalf of the association; thus, the association cannot be held responsible for their actions. See Arlan House East Condominium Association, Inc. v. Olemberg, Arb. Case No , Final Order (July 31, 1996)(where realtor was not the exclusive sales agent for the condominium, and represented both the seller and the buyer of the unit, her suggestion that a washer and dryer could be kept in the unit cannot be attributed to the association). Waiver is the second basis for the petitioner s claim. To establish waiver, it must be shown that a right of the board existed at the time of the waiver, the board had knowledge of it, and the board intended to relinquish that right. Savoy East Association, Inc. v. Jansson, Arb. Case No , Final Order (Jan. 4, 1994). For waiver to exist in the context of restrictive covenants there must be a long continued waiver or acquiescence in the violation of a restrictive covenant and conscious acquiescence in persistent, obvious and widespread vi olations for waiver or abandonment to occur. Mizell v. Deal, 654 So.2d 659 (Fla. 5th DCA 1995), citing Siering v. Bronson, 564 So.2d 8

9 247, 248 (Fla. 5th DCA 1990). In Mizell, the court held that waiver was not shown where owners offered no evidence from which the trial court could have concluded that the owner seeking to assert the restriction had waived it, beyond their testimony that the first owner failed to complain for a year and a half. The court stated that this did not constitute the type of clear conduct necessary to constitute a waiver, nor would it constitute the long continued conscious acquiescence in persistent, obvious or widespread violations necessary to prevent enforcement of the restrictions. Thus, the facts alleged in the instant petition, that the association failed to complain or to prosecute the violation for a period of years, do not support a claim based on waiver. In addition, it is doubtful whether the association may waive the rights of other owners to complain about the petitioner s use of the common element area. In The Palm Club Association, Inc. v. Bocchino, Arb. Case No , Summary Final Order (Jan. 15, 1999), the unit owners installed skylights in their unit after obtaining a consent agreement from the board permitting them to do so. However, because the change constituted a material alteration of the common elements, approval of 75 percent of the unit owners was required pursuant to Section (2), Florida Statutes. The unit owners argued that the board s consent constituted a waiver of the restriction. The arbitrator held that, in the absence of any delegation to the board by unit owners of their authority to approve or disapprove alterations to the common elements, the unit owners rights to enforce the requirements of Section (2), Florida Statutes, could not be waived by the board. The petition also raises a claim based on adverse possession of the foyer. One way property may be adversely possessed is under color of title where the occupant continuously possesses property for seven years, under a claim of title founded on a written instrument or on a decree of judgment. See Section 95.16(1), Florida Statutes. The second way is without color of title where the occupant has been in continuous occupation of real property for seven years but not founded on a written instrument, judgment, or decree, if the person claiming adverse possession 9

10 made a return of the property to the property appraiser of the county where it is located within one year after entering into possession and has paid all taxes levied by the state, county, and municipality. See Section 95.18(1), Florida Statutes. Because such a claim primarily involves title to property over which the arbitrator does not have jurisdict ion pursuant to Section , Florida Statutes, such a claim cannot be addressed in this proceeding. However, it is noted that the petitioner has not alleged that she claims any right to the foyer under a written instrument or by virtue of paying the taxes on the property. Further, the arbitrator knows of no support in Florida law for permitting a unit owner to claim a portion of the common elements by means of adverse possession or prescriptive easement. See Schiffman v. Golden Isles Towers Condominium Association, Inc., Arb. Case No , Summary Final Order (Oct. 3, 1994) (exclusive right to use a particular parking space is neither a right to real property nor an easement, for which a claim of adverse possession may be brought. The true owners of the parking space are all of the owners of units at the condominium and, as such, a unit owner may not claim adverse possession of the parking space against all of the other owners o f units in the condominium). The petitioner supplemented her claim on December 21, 1998, arguing that the percentage of common elements appurtenant to her units supports her claim that she has the use of greater space. The percentage of ownership of the common elements appurtenant to each o f the petitioner s units is.77 percent, while the unit to the east, which is closer to the ocean and of the same dimensions, owns only.74 percent of the common elements; therefore, the petitioner argues, it follows that she has the right to use of the foyer area (that is, the area of the foyer explains why the petitioner s units have a.77 percent share in common elements while other units of the same size have only a.74 percent share in the common elements). When the declaration was recorded in 1973, Section , Florida Statutes (1971), 10

11 provided that the declaration had to indicate the undivided shares in the common elements appurtenant to each of the units and the proportions or percentages and manner of sharing common expenses and owning common surplus. There was no requirement, as there now is, that the ownership share in the common elements assigned to each unit be based either upon the total square footage of each unit in uniform relationship to the total square footage of each other unit in the condominium or on an equal fractional basis and that the proportion of common expenses paid by a unit must be the same as the undivided share in the common elements attributable to the unit. See Section (f) and (g), Florida Statutes. Thus, no inferences may be drawn fro m the percentage of ownership of the common elements appurtenant to each of the petitioner s units. Therefore, it must be determined, on the facts asserted by the petitioner, that she is without any right to exclusive possession of the foyer area. Based on the foregoing, it is ORDERED: The petition for arbitration is DISMISSED. The relief requested by the pet itioner, entry of an order requiring the association to restore the wall and door that it removed, to repaint the resulting interior foyer to its previous condition, and to replace the petitioner s furnishings and furniture, is DENIED. DONE AND ORDERED this 29th day of January 1999, at Tallahassee, Leon County, Florida. Patricia A. Draper, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida

12 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 Elaine Moore Amy, Qualified Representative, Phoenix Acquisitions, Inc., 4881 North A1A, Vero Beach, FL and James A. Taylor, III, Esq., th Avenue, Vero Beach, FL this the 29th day of January Patricia A. Draper, Arbitrator 12