STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION MIGUEL ECHARTE, Petitioner, v. Case No. 2014-03-8535 VALENCIA TOWERS CONDOMINIUM ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER Relevant Procedural History On September 12, 2014, Miguel Echarte filed a petition for arbitration naming Valencia Towers Condominium Association, Inc. (the Association) as Respondent. The petition requested the following relief: 1. Compel the Association to preform [sic] their duty and maintain these common A/C condensation discharge lines. 2. Establish a recurring maintance [sic] program to prevent future water intrusion and damages to the Units. On October 14, 2014, the Association filed an Answer. Findings of Fact 1. The Association is the legal entity responsible for the maintenance and operation of Valencia Towers, a Condominium. 2. Petitioner is the owner of Unit 104 within Building 6130 of Valencia Towers, and is a member of the condominium association. 1
3. The common air conditioning condensation line, which serves Petitioner s unit and the five units above his unit, is clogged. As a result of the clog in the common line, Petitioner s air conditioning drainage line is unable to discharge, which is causing water intrusion damage to Petitioner s unit. 4. Petitioner has demanded that the Association maintain the common air conditioning line, but the Association has refused. 5. The Association alleges that the common air conditioning line is a limited common element, and pursuant the Declaration of Condominium for the Association, it is the responsibility of Petitioner to maintain the line. 6. Section 3.3(d) of the Association s Declaration states: Air conditioning equipment or other equipment serving one or more but not all Units shall be a Limited Common Element of the Unit(s) so served, with the Association to maintain such equipment at the sole cost and expense of the Unit Owner(s) served by said equipment. The cost of maintaining said equipment shall be divided equally among the Units served by said equipment. (Emphasis supplied). Conclusions of Law The Division has jurisdiction over this matter pursuant to Section 718.1255, Florida Statutes. Because there is no issue of material fact in dispute after the filings provided to date by the parties, this case is appropriate for summary disposition pursuant to Rule 61B-45.030, Florida Administrative Code. It is undisputed that the common air conditioning condensation line serves six units. Section 3.3(d) of the Association s Declaration is clear and unambiguous. The Association is responsible for maintaining and repairing the clogged common air conditioning condensation line. 2
The only question remaining is whether the Association may require Petitioner and the five other units served by the line to be solely responsible for the cost of maintenance. The Association s Declaration has defined air conditioning equipment that serves multiple units, but not all units, as a limited common element. However, Section 718.108 provides: 718.108 Common elements. (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. (2) The declaration may designate other parts of the condominium property as common elements. (emphasis supplied). Condominiums are strictly creatures of statute. Woodside Village Condominium Ass'n, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002). The statute provides that an installation required to furnish utilities or other services to more than one unit is a common element. The statute has defined the air conditioning condensation line, which is a service to multiple units, as a common element. The Association s governing documents may not redefine a common element, as established by the statute, as a limited common element. Therefore, the Association is responsible for maintaining the line as a common expense. However, the arbitrator declines to grant Petitioner s request that the arbitrator order the Association to establish a recurring maintenance program. The board, through operation of the business judgment rule, is entitled to a presumption of correctness in its decisions concerning needed maintenance and repairs. See Village Green at 3
Baymeadows Property Owners Association, Inc. v. Danninger, Arb. Case No. 94-0091, Final Order (November 4, 1994). Based upon the foregoing, it is ORDERED: No later than 5:00 on November 30, 2014, the Association shall repair and unclog the air conditioning condensation line that serves Petitioner s unit and the five units above his unit. The Association shall not assess Petitioner for the cost of this repair. DONE AND ORDERED this 28th day of October, 2014, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Telephone (850) 414-6867 Fax (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. 4
Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and email to the following persons on this 28th day of October, 2014: Miguel Echarte 104 Crandon Blvd. Suite 306-A Key Biscayne, FL 33149 Email: echarte@ix.netcom.com Petitioner Jonathan N. David, Esq. 1550 Madruga Avenue Suite 201 Coral Gables. FL 33146 Email: pleadings@southmiamilegal.com Attorney for Respondent Terri Leigh Jones, Arbitrator 5