STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION PARADISE LAKES RV PARK CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 02-4832 LLOYD QUALLS, Respondent. / SUMMARY FINAL ORDER This summary final order is entered pursuant to rule 61B-45.030(3), Florida Administrative Code, which provides that at any time after the filing of the answer, where no disputed issues of material fact exist, the arbitrator shall summarily enter a final order awarding relief if the arbitrator finds that no meritorious defense exists, and that the petition is otherwise appropriate for relief. FACTS On April 29, 2002, the petitioner, Paradise Lakes RV Park Condominium Association, Inc., (petitioner or association) filed a petition for arbitration. The petition alleged that Lloyd Qualls (respondent) was keeping a dog on his unit, in violation of Section 12.11 of the declaration of condominium for the association. The units in the condominium are individual plots of land upon which unit owners place mobile homes. The petition further alleged that the respondent had made 1
material alterations to the common elements. The alteration involved the installation of several bushes, trees, rocks and other landscaping by the respondent which encroach approximately seven feet onto the common elements, to wit: a roadway. The petitioner further alleges that multiple verbal and written warnings were given to the respondent regarding these violations, requesting that the respondent abide by the restrictions contained in the declaration. On May 1, 2002, an order requiring answer was sent to the respondent along with a copy of the petition for arbitration. The respondent filed an answer to the petition on May 24, 2002. In his answer, the respondent acknowledges that he is keeping a dog on the unit and that changes have been made to the common elements. As defenses, the respondent argues that the board of the association has not complied with the election requirements of section 718.301, Florida Statutes, since it has not held an election since January 2001. The respondent further argues that based upon the failure to hold an election, the board is not legitimate, its rulings are invalid, and it has no authority to bring this matter to arbitration. The respondent further alleges that since the condominium units consist of individual lots and each lot is owned in fee simple, the condominium documents do no apply to the units since they are not condominium grounds. The respondent also alleges that the area of the common elements encroached upon by the landscaping has never been used as a road and that the respondent was given permission by the developer to landscape the area of the common elements in question. Additionally, the respondent asserts that the association has no control 2
over dogs on his fee simple land as the condominium documents only apply to condominium grounds. On May 29, 2002, and again on June 25, 2002, an order was entered requiring the respondent to submit supplemental information supporting his claim that the developer had given him permission to make the landscaping changes to the common elements. To date, the respondent has failed to supply any evidence in support of this claim. Accordingly, this defense is hereby stricken and will not be considered regarding the issue of the changes to the common element. Analysis The respondent s first challenge regards the authority of the board to bring this action against him. The respondent alleges that since there has not been an election since January 2001, the board of directors is not lawfully constituted and therefore had no authority to bring this action against him. This claim is without merit. Individuals who are elected or appointed to office notwithstanding his or her disqualification to hold office will be regarded as a de facto officer if they assume the duty of such office. See 18B Am. Jur. 2D Corporations 1416. The de facto doctrine is one of those legal makeshifts by which unlawful or irregular corporate and public acts are legalized for certain purposes due to necessity. 18B Am. Jur. 2D Corporations 1417. A de facto director may continue to act for and bind a corporation until such time as title to such office is judged insufficient. 18B Am. Jur. 2D Corporations 1418; See The Little Mermaid Condominium Association, Inc. v. Danny A. Hogan, Arb. Case No. 98-5449, Summary Final Order (May 7, 3
1999)(where the arbitrator held that even assuming that an election by which the board came into authority was conducted illegally, and that those on the board were not qualified or entitled to occupy a board seat, the board is nonetheless entitled to exercise the authority of the board until such time as the election is set aside by a duly-authorized court or arbitrator). Accordingly, the respondent s challenge to the authority of the board to bring this action is rejected. The respondent next argues that he holds title to his condominium unit in fee simple and therefore the condominium restriction on dogs does not apply to him, as his property is not condominium property. The respondent s reliance on this term is misplaced. First, condominium property includes the units. See, Section 718.103(13), (27), Fla. Stat. Secondly, Section 12.11 of the Declaration of Condominium for Paradise Lakes RV Park states that: dogs are not permitted on the condominium grounds. Only indoor cats are permitted so long as they remain inside the dwelling. Given that the units comprising the Paradise Lakes RV Park Condominium consist of plots of land, the restrictions on pets clearly provides and exception only for those cats that are kept inside the dwelling that is placed upon the unit. Section 2.12 of the declaration provides in pertinent part that condominium property means the lands, leaseholds, easements and personal property that are subject to condominium ownership, whether or not contiguous, and all improvements thereon. The term fee simple denotes: An estate limited absolutely to a person and his or her heirs and assigns forever without limitation or condition. An absolute or fee simple estate is one in which the owner is entitled to the entire property, with unconditional power of disposition during one s life. 4
Fee simple signifies a pure fee; and absolute estate of inheritance clear of any condition or restriction to particular heirs, being descendible to the heirs general, whether male or female, lineal or collateral. BLACK S LAW DICTIONARY 615 (7 th ed. 1999). In layman s terms fee simple means, as the term applies to real property, the rights an individual holds with respect to their ability to transfer real property to another person during their life and defines the rights that pass onto one s heirs upon his or her death. The holding of land in fee simple does mean that the property is free from restrictions on the use of that property. All estates in land, regardless of type or duration, are subject to many restrictions. These restriction include statutes, regulations, the constitution of Florida and the United States, zoning restrictions, deed restrictions and many other limitations. In Woodside Village Condominium Association, Inc. v. Jahren and McClernan, 806 So.2d 452 (Fla. 2002), the Supreme Court stated: From the outset, courts have recognized that condominium living is unique and involves a greater degree of restrictions upon the rights of the individual unit owners when compared to other property owners. See Seagate Condominium Association v. Duffy, 330 So.2d 484 (Fla. 4 th DCA 1976). Additionally, the Court in Woodside stated that: [I]nherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. White Egret Condominium Association v. Franklin, 379 So.2d 346 (Fla. 1979). 5
Id. at 456. The Court in Woodside further adopted the reasoning set out in Shorewood West Condominium Association v. Sadri, 140 Wash. 2d 47, 992 P.2d 1008 (Wash. 2000), which stated that the property rights condominium unit owners have in their units are creations of condominium statute and are subject to the statute, the declaration, the association's bylaws, and amendments to the declaration and bylaws. Accordingly, condominiums by their very nature are created with specific restrictions and conditions imposed upon the use and enjoyment of the property within the boundaries of the condominium. Further, the provisions of a declaration of condominium assume some of the attributes of a covenant running with the land and it describes the extent and limits of the enjoyment and use of the property by the owner. See Pepe v. Whispering Sands Condominium Association, Inc., 351 So.2d 755 (Fla. 2d DCA 1977). A restrictive covenant is a provision in a deed or a separate instrument that limits the use of the property or prohibits certain uses. See, BLACK S LAW DICTIONARY 1371 (7 th ed. 1999). A covenant describes a contract between a grantor and a grantee that controls the grantees use and occupancy of the land and its purpose is to maintain or enhance the value of lands adjacent to one another by controlling their nature and use. See Id. Paradise Lakes RV Park Condominium is a condominium, as defined by Chapter 718 of the Florida Statutes, and was established by its declaration of condominium recorded on September 18, 2000. The respondent was on notice of the unique form of ownership he acquired when he purchased his unit in the 6
Paradise Lakes RV Park Condominium and he was on notice that the property was subject to the restrictions contained in the declaration. The declaration is clear that dogs are not permitted upon the condominium grounds. The declaration allows indoor cats upon the condominium grounds so long as they remain inside the dwelling. The declaration provides no indoor exception for dogs. The language of the declaration is unambiguous in its intent to prohibit dogs anywhere within the boundaries of the condominium and not just upon the common elements. Accordingly, the respondent was on notice of the restrictions in the declaration regarding pets and is bound by the terms of the declaration, which prohibit dogs on the condominium grounds. The petitioner further alleges that the respondent has made changes to the common elements by planting several trees and bushes, placing stones and other landscaping devices upon them, without the permission or approval of the board. Section 7.1(a)(1) of the declaration of condominium states in pertinent part that the association, at its expense, shall be responsible for the maintenance, repair, and replacement for all alterations and improvements to all common elements and limited common elements. Section 7.1(b) defines those items that a unit owner is responsible for maintaining. These include all portions of the unit, including but not limited to, all improvements located within the units. The declaration does not assign any responsibility for the maintenance, repair or replacement of the common elements to the unit owners. Accordingly, Section 7.1(a)(1) of the declaration confers to the association the sole responsibility for the 7
alteration and improvement of the common elements. While there is no express provision in the declaration prohibiting a unit owner from modifying the common elements, Section 718.113 Florida Statutes details the manner by which common elements can be modified where the declaration fails to provide a means of changing common elements. Section 718.113(2)(a) Fla. Stat. (2001) provides that: 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 material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. There is no evidence that the respondent has obtained a seventy-five percent approval of the total voting interest before changing the common elements. Since a vote of the unit owners is necessary to approve any changes to the common elements, the modifications made to the common elements by the respondent violate the provisions of Section 718.113(2)(a), Fla. Stat. The respondent further asserts that the common element has never been used as a roadway. This is not a valid defense to this claim. The use or nonuse of a common element does not confer a right to a unit owner to alter or modify the common elements. Based upon the foregoing it is hereby ORDERED and ADJUDGED that the respondent Lloyd Qualls is keeping a dog on the condominium grounds in violation of article 12.2 of the declaration and that the respondent has made alterations to the common elements in violation of Article 7.1(a)(1) of the declaration and Section 8
718.113(2)(a) Fla. Stat. Within 30 days of the date of this order, the respondent shall remove the dog from the premises and shall restore the common elements to their original condition. Respondent shall, in the future, comply with the rules and regulations of the condominium, the declaration and Section 718 Florida Statutes. DONE AND ORDERED this 31 st day of July 2002, at Tallahassee, Leon County, Florida. RIGHT TO TRIAL DE NOVO Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, FL 32399-1029 PURSUANT TO SECTION 718.1255, FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. ATTORNEY S FEES As provided by s. 718.1255, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B-45.048, F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B-45.048, F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. 9
CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 31 st day of July 2002, to: Paradise Lakes RV Park C/O Daniel M. Nemeth 1901 Brinson Road Unit G13 Lutz, FL 33558 Lloyd Qualls P.O. Box 2465 Land O Lakes, FL 34639 Richard M. Coln, Arbitrator 10