STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION BERKLEY SOUTH CONDOMINIUM ASSOCIATION INC., Petitioner, v. Case No. 2011-02-5380 MARIA WALSH, Respondent. / SUMMARY FINAL ORDER This final order is entered pursuant to rule 61B-80.114(1), Florida Administrative Code, which provides that with any dispute that does not involve a disputed issue of material fact... no formal evidentiary hearing shall be conducted and the arbitrator shall decide the dispute based solely upon the pleadings and evidence filed by the parties. The Division has jurisdiction over the parties and the controversy pursuant to section 718.1255, Florida Statutes. Findings of Facts 1. Berkley South Condominium Association Inc., (the Association) is an association as defined in section 718.103(2), Florida Statutes, and is the entity responsible for management of the Berkley South Condominiums. 2. Respondent, Maria Walsh, purchased a unit at Berkley South Condominiums on August 30, 2002 and is a condominium unit owner as defined in section 718.103(25), Florida Statues.
3. On May 16, 2011, the Association filed a Petition for Mandatory Nonbinding Arbitration against Respondent for violating the condominium s governing documents by installing a window in the unit s exterior wall without the Association s approval. 4. The window was installed without the Association s approval in violation of the Association s governing documents. 5. Neither party produced documents or testimony which gave the exact date for the installation of the window. Respondent has said that the window was present when she bought the unit in August, 2002. 6. The window was in the unit as early as January 15, 2006, based on an affidavit of Mr. George Esser from Esser Glass & Window, Inc. Mr. Esser was not the contractor who installed the window but was contracted sometime in 2005 by Respondent to perform other work in the unit which initially included removing the window and patching the wall. Mr. Esser s affidavit dated August 26, 2011, states that at the time of the initial inspection of the Property [for the proposed work] on or prior to January 15, 2006, the subject window existed in its current configuration. 7. The Association is seeking to enforce a provision of its declaration which is in the nature of a contract which binds owners and associations. It is a written instrument; therefore, the appropriate limitations period for this case is 5 years. Oceanside Plaza Condominium Association, Inc. v. Piero, Arb.Case, No. 95-0384, Partial Summary Order on Issue of Limitations (September 23, 1996). 2
8. Whether the window was installed before August 30, 2002 or on or prior to January 15, 2006, both dates are outside of the 5 year limitations period applicable here. 9. The statute of limitations bars this litigation in so far as it seeks to force Respondent at her own expense, to remove the window and restore the exterior wall. 10. Respondent has refused, in violation of section 718.111(5), to allow the Association access to the unit so that it can remove the window and restore the wall to its original condition. The Condominium Act, Chapter 718, Florida Statutes 11. Section 718.303, Florida Statutes, instructs that: each unit owner, each tenant and other invitee, and each association is governed by, and must comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws which shall be deemed expressly incorporated into any lease of a unit. 12. Section 718.113(2)(a), Florida Statutes, states; 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 as originally recorded or as amended under the procedures provided therein. 13. 718.111(3), Florida Statutes, makes it a statutory duty for a Florida condominium association to maintain the common elements. 3
14. Section 718.111(5), Florida Statutes, grants the association the irrevocable right of access to any unit, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association... The Governing Documents of the Condominium 15. Article VI, subsection (H)(2) of the Declaration of Condominium under the sub-heading, Alteration and Improvement, prohibits; any Unit Owner without first obtaining prior written authorization of the Association, from making any alteration, modification, decoration, repair, replacement, enclosure or change [to] the Common elements [or] the Limited Common Elements... which would in any way or manner whatsoever change the physical appearance of the Unit. 1 16. In accord with section (H)(2) is Article XII, subsection (E) of the declaration entitled Exterior Appearance, which states in pertinent part; No Unit Owner shall cause or permit the exterior of the building to be increased in size, or the configuration thereof altered. 17. Article VI Paragraph C(2)(c) of The Declaration of Condominium, at subheading Perimetrical Boundaries states; The Owner of a Unit in the Condominium Property shall not be deemed to own the undecorated and/or unfinished surfaces of the perimeter walls, floors or ceilings surrounding his Unit...and said items are by this Declaration hereby made a part of the Common 1 Again, there is no dispute that the window was installed without proper authorization from the Association. 4
Elements. The exterior wall of a unit is a common element of the complex. 18. Article VI, subsections; (G)(1)(a) and (d) of the Declaration of Condominium under the heading Maintenance... By the Association read: (a) the Association shall maintain, repair and replace at the Association s expense [a]ll portions of any Unit, except interior wall surfaces not contributing to the support of the building, which portions shall include but not be limited to the roof, outside walls of Units and load-bearing columns; (d) [t]he Association has and shall have all powers necessary to discharge this responsibility, and may exercise such powers exclusively if it so desires, or may delegate a part of all such powers as elsewhere provided for in the Condominium Documents. 19. The Declaration of Condominium at Article VI (G)(2) describes the responsibilities of unit owners: By the Unit Owner: the responsibility of each Unit Owner shall be as follows: To maintain in good condition and repair his Unit and all interior surfaces within his Unit and the entire interior of his Unit, including where applicable, a Limited Common Element for the exclusive use of Unit. The Issues There are three issues to consider in this action: 1. Does Respondent have the right to refuse access to the Association to remove the window and restore the wall. 2. Does the 5 year statute of limitations bar the Association s requested relief. 5
3. Is the installation of the window void ab initio making the statute of limitations inapplicable. Conclusions of Law Association s Irrevocable Right to Enter the Unit It is a basic principle of condominium law that, by choosing to live in a condominium, individual unit owners give up certain freedoms and accept certain restrictions upon rights which could be expected in separate, privately owned property. Woodside Village Condominium Association, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002); Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975). One of these lost privileges is an owner s right to restrict access and entry to his unit to only those to whom he has issued an invitation. Section 718.111(5), Florida Statutes, grants the association the irrevocable right of access to any unit, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association. [The] use of the word irrevocable in the statute emphasizes the legislative intent that the right of access cannot be limited by governing documents of a condominium or by a negotiated condition in the sale of units. See, Hidgon v. Seaspray Condominium Association, Inc., Arb. Case No. 96-0430, Final Order (March 24, 1998). Access will be allowed even when a unit owner has given a written warning that the association should not enter a unit... id. An association's right of access to the units is broad and is not restricted to instances in which an emergency is presented, but comes into play whenever 6
the association's related functions of maintenance, repair, or replacement of the property are implicated. Cypress Isle at the Polo Club Condominium Association, Inc., v. Shelton, Arb. Case No. 90.4090, Order Requiring Status Report (July 20, 1998), citing, Higdon, Arb. Case No. 96-0430, Summary Final Order (March 24, 1998). Numerous defenses raised by unit owners in an effort to deny access to associations have been considered and rejected; e.g., fear of damage that might occur during the association s use of the unit, Nine Island Avenue Condominium Association, Inc., v. Siegel, Arb. Case No. 2008-00-7065, Final Summary Order (November 3, 2009); the claim that the owner kept national defense secrets unsecured in his unit, Emerald Seas Condominium Association, Inc., v. Harvan Arb. Case No. 97-0057, Summary Final Order (July 31, 1997); the pre-asthmatic condition of the owner s minor child which could be triggered by the dust generated during the balcony s concrete restoration, id. Nine Island, at pg 11. Finally, Respondent has not proffered any legal authority which supports her refusal to allow entry under these circumstances. Accordingly, the Association may enter Respondent s unit without her permission, to remove the window and repair the exterior wall. APPLICATION OF THE STATUTE OF LIMITATIONS Respondent says the window was cut into the exterior wall of the unit next to the sliding glass doors, before Respondent purchased the unit on August 30, 2002. Mr. Esser s affidavit states that the window was present in the wall at least as early as on or before January 15, 2006. Both dates violate the 5 year limitations period. 7
The Association maintains that Respondent s evidence dating the window s installation outside the 5 year limitations period is not sufficiently conclusive for a finding that the petition s filing was untimely. They produced a document from Ft. Lauderdale s Building Services Department website, which showed it was 2007 when the Respondent applied for and was issued a permit for the work Mr. Esser performed. The Association s view begins with exhibit D to Respondent s Supplement to Answer to Petition for Arbitration filed August 29, 2011. D was a copy of a Notice of Commencement issued by Broward County with the time-stamped date of December 28, 2005, indicating when it was recorded. The notice showed that the contemplated work to be done by Esser Glass & Window, Inc., was the removal and replacement of existing windows (5) and door (1). Composite exhibits B and C to Respondent s supplemental answer shows an invoice from Esser Glass & Window, Inc., dated January 15, 2006, containing a description of the work to be done and a cost estimate. At the bottom of the invoice is the notation pd in Full July 3, 2006 and a copy of a check from Respondent in the amount of $2,400.00. The Association suggests that the date of the permit 2007, plus the paid in full date of July 3, 2006, should be as persuasive in dating the window s installation in 2007 as the Respondent s evidence that the earliest date for installation is before August 20, 2002, or by December 28, 2005 or no later than January 15, 2006. The Association s position cannot be reasonably supported by any of the evidence. In Mr. Esser s affidavit he states: 8
Although the scope of the work performed by the undersigned on the Property eventually excluded the referenced window, and was not performed until 2007, this Affidavit is made to establish that at the time of the initial inspection of the Property on or prior to January 15, 2006, the subject window existed in its current configuration. Indeed, the invoice, Mr. Esser s affidavit, the notice of commencement and the reasonable inferences drawn from them actually strengthen Respondent s position that the statute has run. Unless there is credible evidence that Mr. Esser provided a false affidavit, a more reasonable interpretation of the evidence is that he is not absolutely certain when he first recalls seeing the window, however, he is positive he saw it at least as early as January, 2006 and it may have been as early as December 28, 2005, the date the notice of commencement was issued. Furthermore, the invoice explains that although Mr. Esser was paid in full by Respondent on July 3, 2006, for reasons undisclosed in the affidavit, he did not actually start and complete the work until sometime in 2007, as reflected by the issuance date of the permit. This is a more logical interpretation of the facts. It is unreasonable to conclude from the evidence that the permit issued in 2007 was for installation of the window and that the payment in July, 2006 (which would make the Association s petition timely by 2 months) supports this supposition. The Association proffered that it had not noticed the illegal window until 2008, when the entire building underwent a concrete restoration. However, the Association did not produce any authority supporting their suggestion that their 9
late discovery of the window reset the accrual of their cause of action to 2008 and advanced the expiration of the limitations period to 2013. 2 In the following cases, the statute of limitations was held to bar petitions for arbitration or to support a party s right to seek arbitration within the limitation s time period: Clipper Cove Village Master Condominium Association, Inc., v. Greco, Case No. 2009-03-6538, Final Order (July 23, 2010)(owner enclosed her limited common element lanai in 2004 in violation of the condominium s governing documents but the Association waited 6 years to file a petition to force removal of the enclosure; laches barred the action); Sheoah Highlands, Inc., v. Daugherty, 837 So. 2d 579, 582 (5 th DCA 2003)(applying the statute of limitations to uphold an owner s petition against the association for failing to enforce the condominium s declaration which prohibited certain unit owners from constructing screened enclosures on the condominium s common property); Melbourne Ocean Club Condominium Ass n, Inc. v. Elledge, 71 So. 3d 144 (5 th DCA 2011)(applying one year statute of limitations to association members petition to have their association and its agent obtain and produce to them independently audited financial statements for the year 2006 but denying same as to years 2004 and 2005 as outside the limitations period); Oceanside Plaza Condominium Association, Inc., v. Piero Salussolia, Case No. 95-0384, Partial Summary Order on Issue of Limitations, September 23, 1996, (5 year statute of limitations applied to association s petition complaining that owner installed 2 There is a doctrine of delayed discovery that overrides the application of the statute of limitations but it only applies in cases of professional and medical malpractice, frauds, products liability, and intentional torts involving abuse. Ryan v. Lobo de Gonzalez, 841 So. 2d 510, (Fla. 4 th DCA 2003) 10
exterior doors to his balconies whose color was non-conforming to the building s color); The Gardens at Pembroke Lakes Condominium Association, Inc., v. Placide, Case No. 06-06-7816, Notice of Intent to Issue Partial Summary Final Order, April 11, 2007, (because the association filed its petition 6 years after the current owner purchased his unit whose floors were tiled by a previous owner, the arbitrator found the limitations period had run and denied the association relief that would require owner to apply for approval of the tile floor with the likely outcome that the owner might be ordered to enter into expensive remodeling to remove the tile); Lyme Bay Colony Condominium Association, Inc., v. Forget, Case No. 97-1884, Order Striking Affirmative Defenses and Requiring Supplemental Information, August 10, 1998, (in addressing a selective enforcement argument raised by certain unit owners who had erected sheds on their property, the arbitrator agreed with the association that the statute of limitations prohibited it from filing petitions to force removal of sheds which other owners had installed 5 to 10 years earlier). Petitioner has not presented any compelling argument that convinces the undersigned that a departure from the rulings in the cases above is in order. The Association violated the statute of limitations by filing their petition for arbitration more than 5 years after the illegal window was installed. As such, the Association is not entitled to bring this action seeking to force Respondent to remove the window nor to seek any monetary contribution from the Respondent for the cost accompanying the removal of the window and the restoration of the exterior wall. 11
Is The Statute of Limitations Inapplicable Because the Installation was Void Ab Initio Neither party disputes that the window was installed without the permission of the Association, in violation of the Association s governing documents. The Association argues that the illegality of the installation makes the installation void ab initio. In other words, it was an act which was outside of the scope of the prior owner s authority, is therefore properly considered void, a nullity and of no effect, making the statute of limitations inapplicable as a bar against the Association s petition. However, the cases outlined above found the statute of limitations applicable in situations similar to the one presented here, never once implicating the concept that any of the illegal construction was void ab initio. The undersigned sees no reason to do so here. This is especially so when the Association has the right to enter Respondent s unit to return the wall to its original condition regardless of any objections Respondent might have. Conclusions Section 718.303, Florida Statutes, instructs that each unit owner, each tenant and other invitee, and each association is governed by, and must comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws which shall be deemed expressly incorporated into any lease of a unit. See, also, Jean and Paul Katz, Petitioners, v. Le Chateau Royal, Condominium, Arb. Case No. 93-0159, Final Order, February 21, 1994 (all resident... agree to be bound by the declaration and reasonable rules of the condominium when they purchased their units). 12
The installation of the window resulted in a material alteration of a common element. It was cut into the exterior wall next to the sliding glass doors which lead to the outside of the unit. (A)s applied to buildings the term material alteration or addition means to palpably or perceptively vary or change the form, shape, elements, specifications of a building from its original design or plan, or existing condition, 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 (Fla. 4th DCA 1971). An association's right of access to the units is broad and is not restricted to instances in which an emergency is presented, but comes into play whenever the association's related functions of maintenance, repair, or replacement of the property are implicated. Higdon v. Seaspray Condominium Association, Inc., Arb. Case No. 96-0430, Summary Final Order, (March 24, 1998). Moreover, Respondent has not proffered any legal authority which supports an owner s refusal to allow entry under these circumstances. Finally, the undersigned is mindful of the holding in Whisper Walk Section E Association,Inc.,v. Lawrence, Arb. Case No. 02-5820, Final Order on Motion for Costs and Attorney s Fees, (April 4, 2003), where the arbitrator stated that [a] unit owner takes the unit subject to existing defects and with the responsibility to remove the violations existing within the property subject to his control and dominion. However, the Order notes that a Final Order had been entered several months earlier in the same case, where the owner was allowed to remove just the plants he had planted and not those which the previous owner 13
had planted; and instructing the Association that they could remove any other shrubberies desired to be removed in the future. In Whisper Walk Section E Association,Inc.,v. Lawrence the issue involved, a trivial dispute, when a bush was added to the common elements, as the arbitrator described. Here the issue is the cost of removing a window and patching the exterior wall in a unit located on the 18 th floor of a high-rise condominium. Also, this case is distinguishable because the statute of limitations barred any action seeking to force the owner to remove the window, repair wall and to shoulder any of the expenses personally for the work. Therefore, based on the foregoing: The Association s petition seeking an order forcing Respondent to remove the window and restore the exterior wall to its original condition is DENIED. The Association s request for an Order requiring Respondent to allow it to immediately enter the unit to return the common elements to their original condition is GRANTED. The Association will abide by the dictates of 718.111(5), Florida Statutes, and Article VI, Paragraph F(2) of the declaration when entering unit 18L. FURTHER; The Association is not entitled to reimbursement from Respondent for any of the costs related to the removal of the window and the restoration of the wall. DONE AND ORDERED this 19h day of December, 2011, at Tallahassee, 14
Leon County, Florida. Leah A. Simms, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Section Telephone: 850-414-6867 Section Facsimile: 850-487-0870 Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, Florida Statutes. As provided by section 718.1255, Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Fla. Admin. Code R. 61B-45.048. 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 19h day of December, 2011: K. Joy Mattingly Becker & Poliakoff, P.A. P.O. Box 9057 Ft. Lauderdale, Florida 33310-9057 Counsel for Petitioner Peter A. Flanagan Simses & Associates, P.A. 400 Royal Palm way, Ste. 304 Palm Beach, Florida 33480 Counsel for Respondent 15