STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION This report provides a brief description of Declaratory Statements during the period January 1, 2003 through December 31, 2004. I. DECLARATORY STATEMENTS, VARIANCES AND WAIVERS Jeb Bush Governor Diane Carr Secretary Office of the General Counsel 1940 North Monroe Street Tallahassee, Florida 32399-2202 VOICE 850.488.0062 FAX 850.921.9186 INTERNET www.myflorida.com 2003 Atlantic Resort Development Ltd. (2003087940) Atlantic Resort Development, Ltd., a creating developer, must include all amendments to the Declaration of Vacation Ownership Plan for Westgate Miami Beach filed by a concurrent developer without its knowledge or agreement, that are matters of public record in its public offering statement and further disclose the litigation in which it is involved pursuant to section 721.07(5), Florida Atlantic View Beach Club Condominium #1 Association, Inc. (2004007892) Whether previously recalled board members may be candidates for election to positions on the board, which position came open during the term of directorship for which they were recalled under section 718.112(2)(d)8, Florida Statutes, and rule 61B-23.0027(5)(a)2, Florida Administrative Code. Denied as moot. Bay Colony Club Condominium (2003047630) Whether an outdoor bar was a common element under Section 718.108(1), Florida Statutes and therefore subject to the restrictions and stipulations in chapter 718, Florida Statutes, and the BCC Declaration. Denied because the parties were litigating the issues in court. Bayfront Towers Condo Association Residents (2003094710) All committee meetings of Bayfront Tower, where association business is discussed, must be noticed as board meetings where a quorum of the board of directors will be in attendance, and an agenda for such a board meeting must be given with the notice, pursuant to section 718.112(2)(c), Florida Blue Tree Resort at Lake Buena Vista/Westgate Blue Tree Resort Owners Association (2004039446) Whether the Developer must obtain approval of the Board of Directors pursuant to 721.13(4), Florida Statutes, before using the owners list to solicit proxies from timeshare owners, and whether the developer, as proxy holder for timeshare owners, may cast the timeshare owners votes to elect new members to the board after the developer has transferred control of the Association to the timeshare owners under section
718.301(1)(e), Florida The Petition was denied because the parties were litigating the issue in court. Crescent Garden/Eurofund Crescent Lake, Ltd. (2003070083) - Petition withdrawn. Garden Lakes Courtyard Association, Inc. (2003078584) - Changing the type of roof shingles used on a condominium building is a material alteration, which may be made by a 75% unit owner vote under the declaration pursuant to section 718.113(2)(a), Florida Statutes, with the common expenses being assessed against all unit owners in their proportionate share pursuant to sections 718.115 and 718.116(9)(a), Florida Holiday Manor Cooperative, Inc. (2003070145) The information contained in the monthly reports for association financed units of Holiday Manor, specifically the name of the unit owner financed by the association in the purchase of a unit, the rate of interest paid to the association, the monthly payment amount, and balance owed by each unit owner financed, does not fall under the exemption in section 719.104(2)(c)2, Florida Statutes, of the requirement that official records of the association shall be open to inspection by any association member, and therefore, the unit owner requesting the financial records shall be allowed to inspect the records pursuant to section 719.104(2)(c), Florida Le Chateau Association, Inc. (DS2002017) The Association may adopt an amendment to its declaration which will provide a procedure to allow for material alterations to the common elements with a 75% unit owner vote except for those material alterations authorized by the declaration, instances of maintenance, repair and replacement or protection and alterations to the condominium lobby during 2002 and 2003 approved by two-thirds of the unit owners pursuant to section 718.113(2), Florida Land of the President s Condominium Two, Inc. (2003075418) Whether a board adopted rule providing for the collection of assessments on a quarterly basis supersedes a provision in the bylaws requiring the collection of assessments on a monthly basis is consistent with section 718.112(2)(g), Florida Petition was withdrawn. Lennar Homes, Inc. (2003045065) - Lennar may not include a provision for mediation or binding arbitration in its proposed declaration of condominium or purchaser contract as these provisions are inconsistent with sections 718.111(3), 718.303, and 718.506 and, therefore, prohibited by section 718.104(4)(m), Florida Statutes (2002) and void as a matter of public policy. Overturned/reversed. Lennar Homes v. DBPR, 2004 WL 2146986, 29 Fla. L. Weekly D2167 (Fla. 1st DCA, Sept. 27, 2004). (Division was without authority to declare void a purchase and sale agreement in a 120.565 proceeding.) Maya Marca Condominium Apartments, Inc. (2003091794) Whether a spouse of a unit owner, who is not a joint titleholder, is eligible to hold a director seat on the board under the condominium bylaws. Denied under section 120.565, Florida Statutes, because petitioner did not seek an application of a statute, rule or order to his particular circumstances but requested legal advice as to an interpretation of association bylaws. End of Year Report Page 2 of 7
Palm Aire Condominium #2 Limited Partnership (2003093490) Palm-Aire Condominium #2 must maintain any audio recordings of its board meetings until such time that the written minutes of the meeting are actually approved in accordance with rule 61B-23.002(5)(b)3, Florida Administrative Code. Palm Greens at Villa Del Ray, Inc. (Jerry A. Cooke) (2003047827) Straw poll votes are official records of the association, which are open to unit owner inspection in accordance with section 718.111(12)(a) and (c), Florida Palm Greens at Villa Del Ray, Inc. (Irwin Ross) (2003052730) The communications from the attorney to the association are exempt from disclosure to unit owners under section 718.111(12)(c)1, Florida Statutes (2002). Palm Greens at Villa Del Ray, Inc. (Sidney H. Firestone) (2003053516) The tape recording of the minutes of the master association's board meeting are an official record of the association open to unit owner inspection under section 718.111(12)(a) and (c), Florida Statutes, and rule 61B-23.002(5)(b)6; and the association may adopt a bylaw amendment to replace a requirement for approval by a majority of the board of directors of the two condominium associations for a material alteration and addition to the master association common areas with approval by a majority of unit owners in accordance with the amendment provisions in the bylaws if the amendment is properly recorded in the public records under section 718.112(1)(a) and (b), Florida Palm Greens at Villa Del Ray, Inc. (Jerry A. Cooke) (2003070223) Whether master condominium association board members are subject to recall under section 718.112(2)(j), Florida Statutes, and rule 61B-23.0026-.0028, Florida Administrative Code. Petition denied as moot; arbitration final order entered. Portofino Condominium Apartments of Palm Beach, Inc. (Walter Grover) (2003065160) Section 718.116(9), Florida Statutes, does not prohibit a condominium association from assessing unit owners in accordance with their percentage interests for repair work in a manner that permits owners the option of paying the assessment in full without interest or paying the assessment with interest over a period of months. River Landings Condominium Association, Inc. (2003070952) Whether under section 718.301, Florida Statutes (2002), a developer may turnover control of the association to a majority of unit owners before the three months after 90% of the units that will be operated by the association have been conveyed to purchasers; and, if so, may a unit owner controlled association exclude the developer from holding a seat on the board. Withdrawn. River Run of Sebastian Condominium Association, Inc. (2003072402) River Run of Sebastian Condominium Association, Inc, operates a multi-condominium as that term is defined by section 718.103(20), Florida Royale Towers Condominium Association, Inc., Unit # C 808 (2003058761) Section 718.3025, Florida Statutes does not apply to contracts for major construction projects such as the repair and restoration of salt damaged balconies. End of Year Report Page 3 of 7
Sabal Pines Condominium Association, Inc. (2003095602) Whether board may erect a fence and security gate on the common elements without a vote of its owners and then assess unit owners the cost. Withdrawn. Schooner Bay Condominium Association of North Fort Myers, Inc. (2003058761) Limited proxy, which provided unit owners the option of partially funding reserves or opposing funding of reserves, did not comply with sections 718.112(2)(b)2 and (f)2, Florida Statutes, and 61B-22.005(6) Florida Administrative Code, which require a board that has decided not to fully fund reserves, to provide unit owners with the option of voting in person or by proxy at the meeting to waive or reduce the funding of reserves. Sea Monarch Condominium Association (2003062379) Section 718.016, Florida Statutes, does not limit the ability to make rules requiring guests to sign an overnight guest registration form. Seven Springs Villas Association, Inc. (2003090282) Whether the condominium association may reinstate mandatory country club memberships under section 718.114, Florida Statutes, without the consent of the unit owners to an amendment to the declaration, which Petitioners assert constitutes a material modification and alteration of the appurtenances to the units, required by section 718.110(4), Florida Statutes (2003). Denied because the issue has been or may be addressed by the circuit court having jurisdiction over the parties and the issues. Shores Club Management Association, Inc. (2003056407) The association's use of a limited proxy, designating a vote for full funding of reserves with maintenance fees at a stated dollar amount, or waiver of reserves with maintenance fees at a stated dollar amount, does not satisfy the requirements of section 718.112(2)(b)2 and 718.112(2)(f)2, Florida Statutes, and rule 61B-22.005(8), Florida Administrative Code (2002), because the amount of the partial funding of each reserve fund was not disclosed in the proposed budget presented to the members along with the limited proxy. Shores Club Management Association (2003094711) The Petitioner requests a declaratory statement as to whether the board s notice of a unit owner meeting complied with the Division s previous Declaratory Statement No. 2003056407 regarding a unit owner vote to fund, waive, or partially fund reserves as required by Section 718.112(2)(a)2, Florida Statutes (2003), when it responded to his inquiry. Denied. Shore Drive Apartments (2003081881) Whether the division may invalidate the terms of a settlement agreement entered into in the course of a circuit court law suit between petitioner and cooperative association on the grounds that it is inconsistent with petitioner s rights as a unit owner under section 719.303(2). Denied because the division is without authority under chapter 120, Florida Statutes, and chapter 28.105, Florida Administrative Code, to void a settlement agreement entered in circuit court litigation and because a declaratory statement is not a means of approving or disapproving conduct that has already occurred. End of Year Report Page 4 of 7
Waterview Condominium Association, Inc. (Leopold) (2003066719) The Association's assignment of parking spaces was in accordance with the terms of the declaration of condominium and is consistent with section 718.106(2)(b), Florida 2004 Brickell Townhouse Association, Inc. (2004023364) - Whether a 55% vote of 82% of the owners present and voting at a meeting, which is 44% of the voting interests, is sufficient to approve requiring each owner to install hurricane shutters under section 718.113(5), Florida Denied because petitioners did not provide documents requested to support their petition. Cedar Point Village #8 Condominium Association, Inc. (2004029306) - Cedar Pointe Village No. 8 Association, Inc. may not select a contractor for termite fumigation services to one building in May 2003 without obtaining new competitive bids under section 718.3026, Florida Commodore Condominium Apartments, Inc. (2004026602) - Whether "tacit" approval by mortgagees, who do not respond to the association's notice of amendment, satisfies the requirement of section 718.110(1) and (11), Florida Statutes, where the declaration of condominium, which was recorded in 1966, requires 75% mortgagee approval of amendments, and, whether, as a matter of policy, a vote on an amendment to the declaration should be allowed to stand when the general description of the amendment appearing on the ballot and limited proxy is so vague and incomplete that it is actually misleading in that it gives a false picture of the scope and effect of the change. Denied because petition seeks approval or disapproval of conduct that has already occurred; is improper where facts are disputed; and the division is without authority under chapter 120, Florida Statutes, to invalidate an amendment to the declaration of condominium filed in the public records of Broward County, Florida. Condominium Association of Plaza Towers North, Inc. (20040806). Condominium Association of Plaza Towers North, Inc. may compel a unit owner to provide a duplicate key to the owner's unit under section 718.111(5), Florida Statutes, for the board's unilateral access to the unit. Edgewater Arms Fourth, Inc. (2004020316) Petitioner's mailing of his notice of candidacy on December 23, 2003 to the Edgewater Arms board office where the board's notice required receipt of notice of candidacy by 5:00 p.m. on December 24, 2003 and the notice was not received in the board's office until December 29, 2003 did not constitute timely receipt of "written notice to the association [of] not less than 40 days" prior to the election as required by section 718.112(2)(d)3, Florida Statutes, and rule 61B-23.0021(5), Florida Administrative Code. Greenway Village Association #1, Inc. (2004013080) Greenway Village Condominium No. 1 Association, Inc. may assess unit owners for common expenses instead of applying excess funds in the common surplus under section 718.116(10), Florida Statutes (2003), as a credit against the assessment. Harbor Beach Resort Condominium Association, Inc. (2004022485) Whether association complied with section 718.1255, Florida Statutes, prior to filing a judicial complaint in which the court rendered a final judgment and awarded attorney's fees End of Year Report Page 5 of 7
against petitioner. Denied because issue was determined in circuit court action between the parties and was moot. Heron Master Condominium Association, Inc. (2003092101) Heron Master Association must hold elections for its board of directors pursuant to section 718.112(2)(d)3, Florida Statutes, and may not opt out of this statutory requirement in favor of an appointment procedure. Jupiter Reef/Ogden Resort Development, Inc. (200409986) A real estate broker, who owns a whole condominium unit within the timeshare plan and who offers other owners' timeshare interests for resale, is not entitled in his own right nor as an officer of the developer who is no longer offering units or timeshare interests for sale in the ordinary course of business to hold a minority seat on the board of directors of the owners' association by appointment under section 721.301(1), Florida Statutes (2003). Kings Point Housing Corp (2004004057) - Whether Kings Point Community Association, Inc. is subject to chapter 718, Florida Statutes, and, if so: (1)whether it must respond to condominium unit owner inquiries under section 718.112(2)(a)2, Florida Statutes; (2) whether the directors owe a fiduciary duty to the unit owners under section 718.111(1)(a), Florida Statutes, to obtain insurance on the recreational facilities that names individual owners as additional insureds under a casualty and liability policy; and (3) whether the warranty protections under section 718.203, Florida Statutes, extend to recreational facilities during developer control or after turnover to owners in 2012 when all the agreements for deed to the recreational areas have matured. Withdrawn. Landmark at Hillsboro Condominium Association, Inc. (2004047168) Whether a unit owner who leases his unit loses his right of use to a common element parking space under Section 718.106(14), Florida Petition withdrawn. Maison Grove Condominium Association, Inc. (2004046737) - Whether the association may assess a unit owner for the maintenance (pruning, cutting and trimming) of trees located in the limited common element patios attached to the units under the declaration and section 718.113, Florida Denied because the declaration of condominium is ambiguous as to whether trees are limited common elements. Palm Harbor Club at Bay Beach Condominium Association (2004033580) Whether the declaration of condominium restricts transient rentals of more than 3 times a calendar year for periods of less than 30 days or 1 calendar month. Dismissed under section 120.565, Florida Statutes, for failure to specify a statute, rule or order of the division that was at issue. Pheasant Run at Rosemont Association, Inc. (Anthony Fragle) (2004046093) Whether maintenance, repair and replacement of the garage doors constitutes a common expense pursuant to section 718.110, Florida Statutes, and the declaration for the condominium; and whether the proposed replacement of the garage doors constitutes a material alteration for which a 2/3 vote of the unit owners would be required. Denied because the Division is not authorized to interpret ambiguous document provisions and to interpret and apply existing case law not a statute, rule or order as to the materiality of the proposed change. End of Year Report Page 6 of 7
South Seas NW Condominium Apartments, Inc. of Marco Island (2004003287) Whether under section 718.112(2)(a)2, Florida Statutes, an association is precluded from recovering its attorneys fees and costs in subsequent litigation if it does not provide a written substantive response to a unit owner's request to review association records made under section 718.111(12), Florida Denied because a circuit court order enjoined petitioner from representing himself in any action involving the association. Appealed. Timberwoods Condominium Association, Inc. (2004020324) Whether a board may paint the condominium buildings a different color from the original under section 718.113(2)(a), Florida Statutes, without approval of 75% of the voting interests. Withdrawn. Victoria Village H Condominium Association (2004011033) A unit owner cannot have access to secret ballots cast by the directors of condominium master association in its election of officers under section 718.111(1)(b), Florida Statutes, in order to independently verify the vote. The Village Condominium Association, Inc. (2004013027) Whether an association may specially assess the unit owners pursuant to section 718.112(2)(g), Florida Statutes, for major repairs and the payment to the Division where its declarations, recorded in 1973, does not expressly empower the association to levy special assessments, but does provide for annual and emergency assessments. Denied because it relates to conduct that is the subject of compliance action pending at the Division of Administrative Hearings. End of Year Report Page 7 of 7