STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION One Island Place Condominium Association, Inc., Petitioners, v. Case No. 2007-04-5535 Moshe Engel and Gila Engel, Respondents. / SUMMARY FINAL ORDER Statement of Issue The issue in this case is whether the Declaration of Condominium shifts the responsibility for maintenance of the roof of a 30 story condominium to owners of the two penthouse units. Procedural History Petitioner, One Island Place Condominium Association, Inc., filed a petition for arbitration on August 3, 2007, seeking to recover in excess of $99,000 from Respondent for his share of a roof replacement cost. On August 22, 2007, the arbitrator entered an Order to Show Cause, questioning whether this is primarily an assessment issue that is not within the arbitrator s jurisdiction. Petitioner filed a showing that a parallel case, involving the same issue, had been dismissed by the Circuit Court, with direction for Petitioner to proceed to arbitration under section 718.1255, F.S. Respondents filed an Answer and Affirmative Defenses on January 22, 2008. This Order is based on all pleadings and documents in the file. 1
Findings of Fact 1. Petitioner is the condominium association responsible for the operation of One Island Place Condominium II. 2. Respondents are members of the Association by virtue of ownership of Unit 2902 of the condominium, one of two penthouse units. 3. The condominium building is in excess of 30 stories (300 feet) high. 4. In August 2006, Petitioner notified Respondents that they were responsible for required replacement of the roof above his unit, based on Section 24 of the Declaration of Condominium. 5. Section 24 of the Declaration provides: 24. LIMITED COMMON ELEMENTS. 24.1 There may be Limited Common Elements appurtenant to units in this Condominium, as reflected by the Condominium Survey. These Limited Common Elements are reserved for the use of the Units to which they are appurtenant or assigned to the exclusion of other Units, and there shall pass with a Unit as appurtenant thereto the exclusive right to use the Limited Common Elements so appurtenant or assigned. All expenses associated with the maintenance, repair or replacement of the Limited Common Elements shall be the responsibility of the assigned Unit Owner. 24.2 Terraces, balconies, or screened porches serving only one Unit shall constitute Limited Common Elements. No terrace, balcony, or screened porch may be enclosed or altered in any manner, except with the written consent of the Association. 24.3 That portion of the roof of the Condominium Building lying and existing above the Units on the uppermost floor of the Condominium, as depicted on the Survey set forth in Exhibit 2 hereof, within the vertical dimensions of such Units (as extended upwards) shall constitute Limited Common Elements, reserved to the exclusive use of Units located below to which they shall be appurtenant or assigned to the exclusion of other Units. 2
24.3.1 An exclusive easement is granted to the owners of such Units, for the purpose of access and ingress and egress, through, over and across any portions of the Common Elements of the Condominium, including through the roof structure, in order to permit such use. 24.3.2 A Unit Owner who had appurtenant to his Unit a rooftop Limited Common Element has the right and authority to construct the following improvements, to wit: roof garden, planters, landscaping, hot tub or whirlpool, and sundeck, subject to the written approval of the Association, or such other improvements as may be authorized in writing by the Association through its officers and directors. 24.3.3 A Unit Owner who is the owner of a roof-top Limited Common Element shall provide his own accessway to the rooftop Limited Common Element, which accessway shall be contained within his Unit and may extend to the roof-top Limited Common Element through the roof area above his Unit. 24.3.4 The lower boundaries shall be the top of the surface of the slab roof. The upper boundaries shall be a plane 12 feet above the surface of the slab of the roof. 24.3.5 Unit Owners shall be authorized to build perimeter walls and a roof not to exceed 12 feet in height within the rooftop Limited Common element. Any construction or improvements made within a roof-top Limited Common Element shall be at the sole cost, expense and responsibility of the Unit Owner whose Unit is appurtenant to the roof-top Limited Common Element. Further, any such construction and improvements shall be commenced and completed in accordance with local, state and federal applicable laws and proper permits that may be deemed necessary by any government body having jurisdiction thereof. Any construction and improvements and its accessway shall, prior to construction thereof, be presented to the Association for Approval, which may require such drawings and specifications as deemed fit and proper. 24.3.6 The Unit Owner of a roof-top Limited Common Element shall have the right to the exclusive use thereof and shall be responsible for the maintenance, care and preservation thereof, including any improvements constructed thereon. Any expenses for the construction, maintenance, repair or replacement related to roof-top Limited Common Element shall 3
not be deemed a Common Expense of the Association, but rather, shall be paid for by the respective Unit Owner who is the owner of the particular roof-top Limited Common elements. Such Unit Owner shall be responsible for the Maintenance, repair and replacement at such Unit Owner s sole cost and expense, of any such facilities existing on the roof-top Limited Common Element. Furthermore, such Unit Owner shall be responsible for any damage or injury to the structural integrity of the roof in the event such Unit Owner exercises the exclusive right of access through the roof structures. 24.3.7 Each such Unit Owner agrees to indemnify and hold the Association harmless from and against any such damage or injury, and agrees not to hold the Association or any Unit Owner liable for any injuries sustained in connection with the use of the roof-top Limited Common Element. 24.3.8 The obligation of the Unit Owner to Maintain, repair and replace as set forth hereinabove shall be distinguished from the general obligation of the Association to maintain, repair and replace those portions of the roof structure that constitute the Common Elements of the condominium, including without limitation the structural components of the roof and any other roof-top structures, as depicted on the Survey. 6. The Survey, Exhibit 2 to the Declaration of Condominium, contains two sets of floor plans: one set showing a schematic drawing of each floor separately; another set showing schematic details for each Unit. Unit 2902 appears on sheet 33 of 35, Penthouse(29th Floor) Floor Plan; sheet 34 of 35, Roof and Mechanical Tower Plan; sheet 74 of 75, Unit Floor Plan for Unit 2902 only; and sheet 75 of 75, Unit Floor Plan, Roof Top Limited Common Elements Appurtenant to Unit 2902. 7. Sheet 75 of 75 details a floor plan with rooms labeled Lounge, Sitting Area, Exercise Area. It also shows interior stairs from the 29th floor, two bathrooms and two storage rooms. Outside the area enclosed by walls, the sheet shows one large terrace marked L.C.E. and one smaller terrace marked L.C.E.. None of the rooms enclosed by walls are labeled L.C.E.. 4
8. An additional Survey page, Sheet 35 of 35 of the Survey, labeled Second Level Mechanical Tower, shows a roof above the enclosed portions of Unit 2902 depicted on sheet 75 of 75 (the same roof extends over the other penthouse unit). Nothing on this Survey page indicates this roof is a Limited Common Element. Conclusions of Law The Division has jurisdiction over this matter pursuant to section 718.1255, Florida Statutes. Section 718.113, Florida Statutes, provides in pertinent part: 1) Maintenance of the common elements is the responsibility of the association. The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements. If the maintenance is to be by the association at the expense of only those entitled to use the limited common elements, the declaration shall describe in detail the method of apportioning such costs among those entitled to use the limited common elements, and the association may use the provisions of s. 718.116 to enforce payment of the shares of such costs by the unit owners entitled to use the limited common elements. Common elements means the portions of the condominium property not included in the units. Section 718.103(8), F.S. Limited Common Elements means those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration. Section 718.103(19), F.S. There should be no question that when many units of a condominium are within a single building, the roof and exterior wall elements of the building are common elements. This conclusion is consistent with the definition of an Exterior 5
Wall Envelope found in Section 14.02 of the Florida Building Code. The Envelope provides protection of the building structural members, including framing and sheathing materials and conditioned interior space, from the detrimental effects of the exterior environment. Components of that Envelope, such as the roof and walls, are necessary for the protection of the whole. Although section 718.113(1), F.S. allows the declaration to provide that certain limited common elements shall be maintained by units entitled to use the limited common elements, an arbitrator is not required to respect the provisions of a declaration that label something a limited common element if it is not reserved for the use of a certain unit or units to the exclusion of all other units. The provision should not apply to any part of the Exterior Wall Envelope or roof of a building housing many units. 1 See, Cedar Cove Efficiency Condominum Ass n., Inc. v. Cedar Cove Properties, Inc., 558 So. 2d 475 (Fla. 1st DCA 1990)(Association assessed all members for repair of balconies and exterior closet doors. Although unit owners required to maintain balconies in declaration, construing Chapter 718 and the declaration as a whole, repair and maintenance responsibility for building exteriors properly exercised by condominium). If the responsibility of the association to maintain components of the Exterior Wall Envelope of a multi-story building is to be delegated, the declaration must do so with language that is direct, clear, unambiguous and subject to no other interpretation. See, e.g., Ellis v. Phoenix Towers Condominium Ass n., Inc., Arb. 1 In condominiums where the living units are separate single family residences for which the walls and roof clearly serve only one unit, such structural members may be classified as limited common elements. As units get joined, either horizontally or vertically, structural elements that serve as part of 6
Case No. 00-1236, Summary Final Order (October 27, 2000)(On 22 story condominium, declaration required unit owner to maintain windows. Other provision prohibiting unit owner from changing exterior of building found to conflict. Association required to maintain windows except for broken glass, damaged screening or cleaning); Sandpiper Condominium Ass n., Inc. v. Iagrossi, Arb. Case No. 99-2266, Summary Final Order (August 4, 2000)(Declaration made balcony part of the unit, to be maintained by Unit owner. Association wishing to repair all balconies at once based on its responsibility for outside walls and ceiling and floor slabs. Association general responsibility for the exterior held to control.) It is not necessary to base the result of this case on the statute alone. Application of section 24 is controlled by the Condominium Survey, recorded as Exhibit 2 of the Declaration of Condominium. Sections 24.1, 24.3 and 24.3.8, of the declaration all specify the Survey as a controlling document. It seems that the intent of parts of section 24 is to declare anything above the 29th floor as a limited common element. Section 24 assumes that above the 29th floor is a bare roof to which the penthouse owner could add amenities. The schematic drawings of the survey compel the conclusion that condition never existed in the as-built structure. The rooms shown above Unit 2902, on sheet 75 of 75, are walled-in parts of Unit 2902. While the adjoining terraces are separately marked as L.C.E., the rooms are not. The roof shown on sheet 35 of 35 is not a Limited Common Element. It serves all the unit owners of the building. It is not labeled a limited common element in the survey. Therefore, it is excluded from the provisions of section 24, which apply only the building envelope for more than one unit do not fall within the statutory definition of limited common elements. 7
to limited common elements as reflected by the Condominium Survey. Simply stated, the provisions of section 24 of the Declaration could never be applied to the as-built condominium. Further, section 24.3.8, of the Declaration recognizes the general obligation of the Association to maintain, repair and replace those portions of the roof structure that constitute the Common Elements of the Condominium, including without limitation the structural components of the roof and any other roof-top structures, as depicted on the Survey. The arbitrator need not interpret this provision which is both vague and ambiguous. It seems the Association retains some responsibility for repair of a roof, but it is not clear whether it refers to the roof on sheet 35 of 35 or some other structure. Based on the foregoing, it is ORDERED that One Island Place Condominium Association, Inc., has responsibility for maintenance, repair and replacement of the roof over Respondent s Unit 2902. DONE AND ORDERED this 25th day of April, 2008, at Tallahassee, Leon County, Florida. Bruce A. Campbell Arbitrator Dept. of Bus. & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 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 8
attorney s fees. Any such request must be filed in accordance with Rule 61B- 45.048, F.A.C Certificate of Service I hereby certify that a true and correct copy of the foregoing final order on default has been sent by U.S. Mail to the following persons on this 25th day of April, 2008: Laura M. Manning, Esq. Siegfried Rivera Lerner 515 North Flagler Street, Suite 701 West Palm Beach, FL 33401 Jed L. Frankel, Esq. 4000 Hollywood Blvd. Suite 265 South Hollywood, FL 33021 Bruce A. Campbell, Arbitrator 9