STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION GREEN LAKES CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 97-0006 ABRAHAM NOZETZ and MARA-LEE NOZETZ, Respondents. / SUMMARY FINAL ORDER Green Lakes Condominium Association, Inc. (petitioner or association) filed a petition for arbitration with the division on January 2, 1997. The pet ition named Abraham Nozetz and Mara-Lee Nozetz, unit owners, and Robert Bashe and Barbara Bashe, tenants, as respondents. The petition alleged that the Nozetzes had rented their unit to the Bashes in violation of leasing restrictions contained in the condominium documents. On January 13, 1997, the associat ion filed an amended petition for arbitration. The amended petition dropped the Nozetzes tenants, the Bashes, as respondents (the Bashes mo ved out of the unit shortly after moving in). The amended petition alleges that the Nozetzes repeatedly violated the requirement of the documents that they obtain the board s approval prior to permitting tenants to occupy their unit and leased their unit more than twice in a 12 month period, in violation of the condominium documents. This order is entered pursuant to Rule 61B-45.030, Florida Administrative Code, which permits the arbitration to summarily enter a final order if the matter involves no disputed issues of material fact. FINDINGS OF FACT AND CONCLUSIONS OF LAW
It is undisputed that the respondents permitted Robert and Barbara Bashe to occupy their unit beginning on December 16, 1996, and that the board had approved occupancy by the Bashes beginning January 1, 1997 (Approx.) and leaving April 15, 1997 (Approx.). It is also undisputed that in 1996 the respondents permitted several other individuals to occupy their unit while they were not present in the unit: Mr. Nozetz s cousins from England stayed in the unit for two weeks in May and someone who needed a place to live while their unit was being built stayed in the unit during June and July of 1996. Article XII of the declaration states, in pertinent part: The apartment shall be used for single family residences only. No separate part of an apartment may be rented and no transient (as defined in Chapter 509 Florida Statutes) may be accommodated therein for compensation or commercial purposes. No apartment may be rented for a term of less than ninety (90) days and may not be so leased or rented more than twice (2) in any twelve (12) month period. The Rules and Regulations relating to guests and renters state: Non-owner occupants of a unit are considered to be renters when the unit owner is not present. In these instances, the above rental/leasing rules apply. The association must be so advised in conjunction with a leasing application and filing fee. These restrictions do not apply to Unit Owners immediate family members defined as spouses, parents, children, sister, brothers and association in-laws (parent, children, sisters, brothers). Mr. Nozetz s father s brother s son and his significant other stayed in the unit from May 11, 1996 to May 25, 1996, while the Nozetzes were not present in the unit. Under the declaration and above-cited rules, this occupancy was subject to board approval. The rules provide that the approval requirement, and the two rentals per 12-months limitation, does not apply to unit owners immediate family members. Immediate family members is defined as spouses, parents, children, sister, brothers and associated in-laws (parent, children, sisters, brothers). Mr. Nozetz s f ather s brother s 2
son does not fall within the exemption. He is not a spouse, parent, child, sister or brother of Mr. Nozetz, nor is he an associated in-law (parent, children, sisters, brothers). An in-law is a relative by marriage. The American Heritage Dictionary, 1991. Thus, associated in-laws, whose tenancies are exempt from the rules, are a father-in-law, mother-in-law, son-in-law, daughter-in-law, brotherin-law or sister-in-law. Accordingly, under the declaration and above-cited rule, this occupancy was subject to board approval and counted for the purposes of the two-rental limit. Thereafter, from June 1, 1996, to approximately August 1, 1996, a David Grey, who is not related to the Nozetzes, stayed in the unit. The Nozetzes submitted an application for rental to the association for Mr. Grey s occupancy of the unit on July 8, 1996, five weeks after he moved into the unit. The association s approval was given, but after the tenancy started. Then, in November, 1996, the Nozetzes submitted an application for Robert and Barbara Bashe to stay in the unit for the term Jan 1/97 (approx.) [to] April, 1997. The association approved the application. The Bashes actually moved into the unit on December 16, 1996. On December 16, 1996, the board of directors revoked its approval. The letter from the association states that approval was revoked because the unit had been rented more than twice in 1996 (in May, June and again in December). The Bashes moved out of the unit shortly thereafter. The respondents argue that they have not violated the provisions of the declaration because the association approved the Bashes occupancy. They also argue that they have not repeatedly violated the rental restrictions as alleged. The declaration provides that [n]o apartment may be... leased or rented more than twice (2) in any twelve (12) month period. It has already been determined that the Nozetz s unit was rented, as defined in the rules, during May, 1996 and June-July, 1996. 1 The Bashes occupancy was 1 The respondents do not challenge the reasonableness of the rules, which define the extent to which the declaration s rental provision applies to certain occupancies, or the authority of the board to adopt the rules, therefore, it 3
the third rental in 1996 and was, therefore, prohibited by the declaration. 2 The Nozetzes argue that because the association approved the Bashes occupancy, the association is estopped from applying the declaration to preclude the occupancy, even if it constitutes a third occupancy in 1996. The application for occupancy which the association approved states the term of the Bashes occupancy as January 1, 1997 (Approx.) to April 15, 1997 (Approx.). The Nozetzes argue that December 16 is approximately January 1. This argument is fallacious. Approximate means 1. Almost exact, correct, complete, or perfect. 2. Very similar; closely resembling. 3. Close together; near. The American Heritage Dictionary, 1991. Estoppel requires a showing of reasonable reliance on a representation made by the opposing party, which misled the complaining party. State Department of Revenue v. Anderson, 403 So. 2d 397 (Fla. 1981). It is not reasonable for the unit owners to believe that the association was approving a third occupancy in 1996. More plausibly, the association was approving the Nozetzes first rental of 1997. The Nozetzes also argue that the association should not be heard to complain about their failure to get prior approval of previous rentals because they telephoned the security officer for the association beforehand and told him who would be staying in the unit and requested the appropriate forms. According to the respondents answer, the security officer always advised that if there was any problem, he would speak with the guests directly. Their answer states that they assumed that he had taken care of all of the procedures with the people staying in the unit. The flaw in this claim is that the security officer has no authority under the documents to approve rentals; the board has this authority. Estoppel will not be applied in such circumstances. See Dubois v. Lakes Village East is unnecessary to address these issues. 2 The association apparently interpreted the 12-month period to be a calendar year period. 4
Condominium Association, Inc., Arb. Case No. 95-0209, Summary Final Order (Dec. 11, 1995)(estoppel not applied where association refused to approve request to install patio, where real estate broker indicated to purchaser that he had permission to install patio). The Bashes vacated the unit a few days after moving in, after the association notified the parties that the occupancy violated the rules. Normally, when tenants vacate a unit, the case is dismissed as moot. However, when it is shown that the unit owners have repeatedly violated the rental rules, as in this case, injunctive-like relief should be ordered to prevent future violations. See Laurel Oaks at Country Woods Condominiums Association, Inc. v. Bonner, Arb. Case No. 96-0126, Summary Final Order (Nov. 26, 1996)(case not dismissed as moot where unit owner evicted illegal tenant because unit owner admitted having repeatedly violated the rental restrictions, giving rise to determination that probability of a future violation is probable and imminent). RELIEF AND REMEDY It is determined that the respondents have violated the condominium documents by permitting their unit to be occupied more than three times in 1996 by people other than their immediate family. Because it appears that they may continue to vio late the leasing restrictions in the future, injunctive-like relief is deemed necessary. Based on the foregoing, it is ORDERED: Respondents shall henceforth comply with Article XII of the Declaration of Condominium and the Rules and Regulations pertaining to guests and renters. DONE AND ORDERED this 10th day of June 1997, at Tallahassee, Leon County, Florida. Patricia A. Draper, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street 5
Tallahassee, Florida 32399-1030 CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the forego ing was mailed by U.S. mail, postage prepaid, to: Nathan E. Nason, Esq., Nason, Gildan, Yeager, Gerson & White, P. A., 1645 Palm Beach Lakes Blvd., Suite 1200, West Palm Beach, FL 33401 and Shelley B. Maurice, Esq., 11076 South Military Trail, Boynton Beach, FL 33436 this the 10th day of June 1997. Patricia A. Draper, Arbitrator 6