STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION CONDOMINIUM TERMINATION BOZO I, LLC., A Delaware LLC., Petitioners, v. Case No. 2015-03-6352 THE BONAVENTURE HOTEL CONDOMINIUM ASSOCIATION, INC., Respondent. / FINAL ORDER OF DISMISSAL On August 14, 2015, Bozo I, LLC (Petitioner) filed a petition for arbitration of a condominium termination dispute naming The Bonaventure Hotel Condominium Association, Inc. (the Association) as the respondent. On September 30, 2015, a default was entered against the Association. On October 2, 2015, the Association filed its Motion To Permit Late-Filed Response To Petition For Mandatory Non-Binding Arbitration And Motion To Dismiss. On October 8, the Association filed its Motion To Set Aside Default. During a telephonic case management conference held on October 29, 2015, the undersigned granted Respondent s motions to permit a late-filed Response to the petition and to set aside the default. A second telephonic case management conference was held on November 17, 2015, during which the parties were directed to file legal arguments regarding whether The Bonaventure Hotel Condominium (the Condominium) qualifies as a condominium under chapter 718 of the Florida Statutes. The parties filed their legal arguments on December 3, 2015. On January 13, 2016, the Association filed a Motion For Entry Of Summary Final Order Of Dismissal.
The Declaration of Bonaventure Hotel Condominium (the Declaration) attempts to create a condominium that contains, as a practical matter, no common elements. Paragrpah 5. a) of the Plan Of Termination Of Bonaventure Hotel Condominium (Termination Plan) 1 describes the Declaration s intent: Common Elements. The only Common Elements that exist within the Condominium are the portions of the Condominium Property lying below elevation minus fifty feet (50.0 ) N.G.E.D., the value of which is such that the Trustee shall not obtain an appraisal to determine the value of the Common Elements. The value of the Common Elements, if any, shall be distributed in the same manner as the value of the Units and All Other Property as set forth below in paragraph 5B. The components that would typically constitute the common elements of a condominium have been designated as the shared components 2 and made part of the shared components unit. 3 The shared components unit is designated as an individual unit. 4 Therefore, unlike the common elements, the condominium s residential units are not entitled to an undivided percentage interest in the shared components. 1 A copy of the termination plan was attached to the petition. 2 Article 2.31 of the Declaration describes the shared components as follows: Shared Components. Given the integration of the structures and improvements constructed upon the Condominium Property, and notwithstanding anything to the contrary depicted on the survey/plot plan attached hereto as Exhibit 2, the following components of the improvements (the Shared Components ) shall be deemed part of the Shared Components Unit, whether or not graphically depicted as such on said survey/plot plan to the extent contained with the Condominium Property and not included as part of the Shared Facilities: (a) any and all structural components of the Improvements, including, without limitation, all exterior block walls and all finishes (paint stucco etc) and balconies, terraces and/or facades attached or affixed thereto; (b) the roofs; all roof trusses, roof support elements and roofing insulation of the Condominium Buildings; (c) all utility, mechanical, electrical, telephonic, telecommunications, plumbing and other systems, including, without limitation, all wires, conduits, pipes, ducts, transformers, cables and other apparatus used in the delivery of the utility, mechanical, telephonic, telecommunications, electrical, plumbing and/or other services; (d) all heating, ventilating and air conditioning systems, including, without limitation, compressors, air handlers, ducts, chillers, water towers and other apparatus used in the delivery of HVAC services; (e) all elevator shafts, elevator cabs, elevator cables and/or systems and/or equipment used in the operation of the elevators transversing the Condominium Property; and (f) all trash rooms, trash chutes and any and all trash collection and/or disposal systems. 3 Article 3.2(b), describes the shared components unit as follows: Boundaries of Shared Components Unit. The Shared Components Unit shall consist of all of the Condominium Property, including, without limitation, any and all Improvements now or hereafter constructed thereon, less and except only the following: ((i) the Residential Units, and (ii) the portion of the Condominium Property below elevation minus fifty feet (- 50.0 ) N.G,V.D. Said portion of the Condominium Property lying below elevation minus fifty feet (-50.0 ) N.G.V.D. shall be deemed Common Elements hereunder. 4 Article 3.1 of the Declaration provides, in pertinent part, that the Condominium consists of nine buildings containing a total of 325 units, consisting of 324 residential units and one share components unit.
At the time the Bonaventure Condominium Hotel was created, section 718.103(11), Florida Statutes (2004), defined condominium as follows: "Condominium" means that form of ownership of real property created pursuant to this chapter, which is comprised entirely of units that may be owned by one or more persons, and in which there is, appurtenant to each unit, an undivided share in common elements. 5 Section 718.103(8), Florida Statutes (2004), defined common elements to mean the portions of the condominium property not included in the units. It is clear that the Condominium Act, Chapter 718, Florida Statutes, requires a condominium to contain common elements. It is also equally clear that the developer of the Bonaventure Hotel Condominium attempted to create a condominium with no common elements. This is acknowledged by paragraph 5. a) of the Termination Plan which states that the termination trustee will not seek an appraisal of the common elements. Presumably, an appraisal is unnecessary because the only possible common elements lie 50 feet below the condominium, and they are of no value. The Condominium Act does not permit the creation of a condominium without any common elements. Section 718.108 (1)(2004), Florida Statutes, identifies certain minimal common elements, stating as follows: (1) "Common elements" includes within its meaning the following: (a) The condominium property which is not included within the units. (b) Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common elements. (c) An easement of support in every portion of a unit which contributes to the support of a building. (d) The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements. The Declaration does not comply with all of the statute s requirements. Because condominiums are creatures of statute, the Condominium is subject to the provisions of the Condominium Act that were in effect at the time the Condominium 5 The definition has remained unchanged.
was created. 6 Seychelles Condo Management Ass n, Inc. v. Ehlen, Arb. Case No. 01-3639, Final Order (May 15, 2002). Thus, section 718.108(1), Florida Statutes (2004) controls. Therefore, any attempt by the Declaration to eliminate the common elements described by statute by designating them as shared components and placing them within a unit is void. Pursuant to section 718.117(16), the arbitrator is required to determine the rights and interests of the parties. 7 However, this cannot be done until the Declaration is conformed to comply with section 718.108(1), Florida Statutes. The undersigned lacks jurisdiction to do so. 8 Therefore, this matter must be dismissed. Based upon the foregoing, it is ORDERED: Arbitration case number 2015-03-6352 is dismissed due to lack of jurisdiction. DONE AND ORDERED this 22 nd day of January, 2016, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section Suite 16 1940 North Monroe Street Tallahassee, Florida 32399-1030 Telephone (850) 414-6867 Facsimile (850) 487-0870 6 Article 1.2 of the Declaration provides that the Condominium was created pursuant to the Florida Condominium Act as it existed on the date the Condominium was created and as the Act may be later renumbered. 7 Section 718.117(10)(c), Florida Statutes, requires that the plan of termination specify the following: The interests of the respective unit owners in the association property, common surplus, and other assets of the association, which shall be the same as the respective interests of the unit owners in the common elements immediately before the termination, unless otherwise provided in the declaration. 8 Pursuant to section 718.110(10), Florida Statutes, jurisdiction to correct errors or omissions in a declaration of condominium that would affect the valid existence of the condominium lies with the circuit court.
Certificate of Service I hereby certify that a true and correct copy of the foregoing Final Order of Dismissal has been sent by U.S. Mail to the following persons on this 22 nd day of January 2016: Alexander M. Turner, Esq. Alexander M. Turner, P.A. 15476 N.W. 77th Court #293 Miami Lakes, FL 33016 Attorney for Petitioner David Rogel, Esq. Becker & Poliakoff Alhambra Towers 10 th Floor 121 Alhambra Plaza Coral Gables, FL 33134 Attorney for Respondent James W. Earl, Arbitrator