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 OLIVE GLEN CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No JUAN GUTZMAN, Respondent. / FINAL ORDER DISMISSING PETITION On or about December 29, 1997, Olive Glen Condominium Association, Inc., (petitioner) filed a petition for arbitration against Juan Gutzman (respondent). The petition alleged that respondent was leasing the subject unit to unapproved occupants in violation of the association s Declaration of Condominium, or in the alternative, was allowing persons who were not family members to reside in the unit, in violation of the association s Declaration of Condominium. The petition sought, as relief, compliance by the unit owner with the approval requirements for unit occupancy by prospective tenants, as set forth in the association s Declaration of Condominium, and that respondent be required to remove the unapproved tenants from the condominium property. On February 2, 1998, the arbitrator sent out an Order Requiring Supplemental Information, asking the petitioner to state the legal basis on which it believed the case should be accepted for arbitration, given the apparent lack of jurisdiction as discussed below. No response has been received from petitioner. The only disputes eligible for arbitration are those which fall within the definition of 1

2 dispute set forth in Section (1), Florida Statutes. The pertinent portion of that section (as amended, effective October 1, 1997) provides,... 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. (Emphasis added) Prior to October 1, 1997, the Division had the authority to hear cases involving eviction of tenants. In the present case, the petitioner primarily seeks the removal of unapproved tenants, or non-owner occupants from the unit. Consequently, this dispute is not within the arbitrator s jurisdiction. Rule 61B , Florida Administrative Code, provides that the arbitrator shall reject a petition if it is determined to be outside the jurisdiction of the division. Accordingly, the petition will be dismissed. Dismissing this petition for lack of subject matter jurisdiction will not, however, leave the association without a remedy. The association has standing to institute enforcement proceedings directly against the tenants in its own name as provided by section (1), Florida Statutes. Section (1), Florida Statutes, specifically provides that each tenant residing in a condominium shall be governed by, and shall comply with, the provisions of the Condominium Act and the governing documents, including the declaration of condominium and the bylaws. Section (1), Florida Statutes, expressly authorizes an association to commence an action in court for injunctive or other relief against any tenant or other invitee to require the tenant or other invitee to comply with the governing statute or documents, stating in pertinent parts: 2

3 (1) Each unit owner, each tenant and other invitee, and each association shall be governed by, and comply with the provisions of this chapter, the declaration, the documents creating the association, and the association bylaws and the provisions thereof shall be deemed expressly incorporated into any lease of a unit. Actions for damages or for injunctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against: (a) The association. (b) A unit owner. (c)... (d)... (e) Any tenant leasing a unit, and any other invitee occupying a unit. The statute thus plainly confers standing on the association to institute an action in its own name directly against the tenant, seeking compliance with the documents. In the instant case, the declaration of condominium expressly prohibit a tenant from occupying a unit absent board approval. In order to give effect to the provisions of the controlling documents of condominiums, the legislature, through its passage of section , Florida Statutes, has determined to confer standing on condominium associations for the purpose of enforcing the documents against tenants in violation of the controlling documents. An association is responsible for the operation and management of the condominium, and is elsewhere in the Condominium Act given the power to sue third persons regarding the operation of the condominium. See, Section (1), Florida Statutes, and Section (3), Florida Statutes. Therefore, given the association's broad responsibility to operate the condominium, and given its authority to enforce the documents against tenants and other persons, it follows that an association has the standing to remove a tenant where the tenant is unapproved, constitutes a nuisance, or is otherwise in violation of the condominium documents. 3

4 Even aside from the fact that the statute confers such standing on the association, case law is supportive of the conclusion that under judicial concepts of standing, an association has the requisite interest to maintain an action against a tenant. Review, Jamlynn Investments Corporation v. San Marco Residences of Marco Condominium Association, Inc., 544 So. 2d 1080 (Fla. 2nd DCA 1989), in which the court determined that a tenant had standing to sue a condominium association for injunctive relief in a dispute involving parking spaces. In concluding that the tenant had standing, the court stated as follows: The concept of standing has been defined in a broad sense as having a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. [Citation omitted]. Standing is not determined by first finding whether privity exists. General Development Corp v. Kirk, 251 So.2d 284, 286 (Fla. 2nd DCA 1971). Rather, a party has standing when it has such a legitimate interest in a matter as to warrant asking a court to entertain it. [Citations omitted]. Thus, one has standing where there is a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. [Citation omitted]. [Id. at 1082]. [emphasis added]. An association, given its comprehensive rights and responsibilities both under the statute and documents, plainly has sufficient interest in the enforcement of its documents to confer standing to evict tenants. This may occur when tenants have disregarded the requirements of the documents, are engaged in nuisance or dangerous activities, have failed to apply for association approval as required by the documents, or are, by virtue of their age or degree of consanguinity/affinity with the unit owner, ineligible to occupy the unit under the restrictions of the documents. An association has a legitimate interest in pre-screening potential residents in order 4

5 to insure the safety and fiscal well-being 1 of the community, and in order to enforce its documents relating to age restrictions permitted by law. This principle is given statutory recognition in Section (5), Florida Statutes, providing that a declaration of condominium may contain covenants and restrictions concerning the "...use, occupancy, and transfer of the units permitted by law with reference to real property." Association restrictions such as the ones involved in the instant case have as their goal the protection of the residents and the property of the condominium. As a final note, there is no evidence in the legislative history that the Legislature, in determining to delete from the jurisdiction of the Division arbitrators those disputes involving the eviction of tenants through its enactment of the 1997 amendments to section , Florida Statutes, intended to eliminate, rather than simply to modify, any remedies available to associations. Rather, jurisdiction of tenant eviction cases was shifted from the Division to the courts. Eviction of disruptive or unapproved tenants was a remedy commonly granted to associations in the course of Division arbitration cases over the past 5 years, where the declaration provided that a lease entered into with an unapproved tenant was void. See, for example, Southpointe Condominium Association, Inc. v. Saggar, Arb. Case No , Final Order (November 17, 1995) (nuisance tenant evicted upon the petition of the association); BPCA Condominiums Association, Inc. v. Capano, Arb. Case No , Final Order (April 14, 1994) (where the unit owners intentionally violated the documents requiring prior association approval of tenant, the 1 See, for example, Beate Kittle-Glass v. Oceans Four Condominium Association, Inc., Arb. Case No , Final Order (December 7, 1994), upholding the association's rejection of a proposed tenant where the financial status of the tenant was questionable and where pursuant to agreement, the tenant was to pay monthly assessments to the association. 5

6 tenants were evicted, and the owners were ordered to cease renting to unapproved tenants); Westlandia Condominium Association, Inc. v. Miro, Arb. Case No , Final Order (December 30, 1993) (unapproved tenant ordered to vacate unit); Versailles Gardens II Condominium Association, Inc. v. Cadenas, Arb. Case No , Final Order (January 17, 1997) (nuisance and unapproved tenants ordered evicted). The Legislature, in shifting this class of disputes to the courts, did not intend to eliminate the ability of an association to seek this remedy, but simply directed associations to a different forum. Rule 61B (2), Florida Administrative Code, provides that the arbitrator shall reject a petition if it is determined to be outside the jurisdiction of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, Arbitration Section. It is therefore ORDERED: The petition for arbitration filed in case number is DISMISSED for lack of jurisdiction and may be filed in court. DONE AND ORDERED this 27th day of April, 1998, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida

7 Copies furnished to: Randall K. Roger, Esq. Kay & Roger, P.A. Corporate Park, Ste N.W. 6th Way, Ste. 103 Ft. Lauderdale, FL Attorney for petitioner Juan Gutzman 207 N.W. 32nd Ct. Pompano Beach, FL Respondent 7