STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION THE LUXOR RESIDENCES CONDOMINIUM ASSOCIATION, INC. Petitioner, v. Case No. 2016-01-6272 HECTOR J. GARCIA, Respondent. / SUMMARY FINAL ORDER Relevant Procedural History On March 31, 2016, The Luxor Residences Condominium Association, Inc., (the Association) filed a petition for arbitration alleging that Hector J. Garcia (Respondent) installed a gate and fence around parking space #18 creating a storage area without receiving prior approval of the Association. On April 7, 2016, the Association filed an amended petition. On May 17, 2016, Respondent filed an answer. On May 18, 2016, the Association filed a reply. On May 31, 2016, Respondent filed an amended answer. Respondent admitted that he converted the parking space, but asserted as an affirmative defense that as the former developer, he was permitted to do so without permission of the Association. On July 29, 2016, the arbitrator entered an Order After Case Management conference which required Respondent to submit proof to substantiate his affirmative defense. On August 4, 2016, Respondent submitted a filing. On August 23, 2016, the Association filed a response to Respondent s filing. Page 1 of 8
On August 24, 2016, the arbitrator entered an Order Requiring Filing, which required that no later than September 14, 2016, Respondent respond to the Association s August 23, 2016 filing and the Association to submit its revised request for relief. On August 29, 2016, the Association complied with the Order Requiring Filing. On September 19, 2016, Respondent untimely responded to the Association s August 23, 2016 filing. 1 Statement of the Facts 1. Petitioner, The Luxor Residences Condominium Association, Inc. is the entity responsible for the operation and maintenance of The Luxor Residences. 2. Respondent owns a unit in The Luxor Residences and has been assigned parking space #18 as a limited common element. 3. Respondents installed a fence and a gate around parking space #18 and is using it as a storage area and not as a parking space. state: 4. Articles XIII and XIV of the Association s Declaration of Condominium XIII. Common Elements Section 1. The common elements shall include the land which has been submitted to this Declaration by Developer, and all portions of the buildings and other improvements located thereon which are not included within the units, together with such other items as are set forth in the Condominium Act, including, but not limited to easements for support in every portion of a unit which contributes to the support of a building, and property and installations required for furnishing utilities and, other services to more than one unit or to the common elements. Anything in the preceding Article notwithstanding, the common elements shall also include all undecorated, finished load-bearing walls and load-bearing structures 1 On September 22, 2016, Respondent attempted to file a second amended answer. This pleading was not authorized and is untimely, therefore it is not being considered. Page 2 of 8
within the unit boundaries as well as utilities that serve another unit even though they are located within said boundaries. Section 2. No material alteration or substantial additions to the common elements shall be made except upon approval of unit owners holding twothirds of all the votes of the Association. XIV. Limited Common Elements Section 1. Limited Common Elements mean and include those common elements that are reserved for the use of a certain unit or units to the exclusion of other units. References herein to common elements shall include the limited common elements unless the context otherwise requires. Section 2. The areas designated as limited common elements on Exhibit C and D hereof are declared to be Limited Common Elements and are for the sole and exclusive use of the unit owners of the units to which they are physically attached or appurtenant. Such limited common elements include but are not limited to the balconies, terraces, certain storage areas if assigned to a particular unit, and the parking spaces that are assigned to a particular unit. In addition, all windows, glass and doors that serve the units, and the components of the air-conditioning/heating system located outside the unit that serve a particular unit, if any, are deemed to be limited common elements. All limited common elements shall be maintained by the Association unless expressly stated otherwise herein. Section 3. Parking spaces. As long as Developer shall hold one or more units for sale, the Developer shall have the exclusive right to assign, parking spaces to units. However, a minimum of five (5) parking spaces shall be reserved and maintained as parking for handicapped persons, and a minimum of ten (10) spaces shall be set aside and designated as parking for visitors. One parking space shall be assigned to each of the 66 units as a limited common element appurtenant to such unit. One additional parking space may be assigned to a unit by the Developer for an additional consideration paid to the Developer. The Developer reserves the right to decide in its sole and exclusive discretion which of the parking spaces are assigned to which particular units. An assignment of a parking space shall not convey title to the parking space but shall convey only the exclusive right of use. As long as a unit owner continues to own his unit, his assigned space shall not be reassigned or revoked by the Developer or the Association without the written consent of the unit owner, except that unit owners may agree to exchange parking spaces by written agreement and with the written consent of the Board of Directors, provided that no such Page 3 of 8
agreement shall leave any unit without at least one assigned parking space. Such agreement and consent from the Board shall be recorded in the public records. Section 4. Store Rooms and Storage Closets The storage room identified on the lobby floor plan as Storage is a common store room that may be used by the Association as the Board of Directors may determine from time to time. Other storage closets identified by the letters ST and followed by a number may be assigned by the Developer in his discretion for the exclusive use of certain units. Upon assignment, such storage closets shall become a limited common element appurtenant to the unit to which it is assigned. Unit owners may agree to exchange assigned storage closets by written agreement and with the written consent of the Board of Directors, provided that such agreement and consent from the Board shall be recorded in the public records. All assigned storage closets shall be maintained and repaired by the owner of the unit to which it is assigned. If any Storage Closets remain unassigned after Developer has sold all units, the Association may use or assign such closets as it may determine in its discretion. (Emphasis supplied). Exhibit C of The Association s Declaration designates parking space #18 as a parking space and not as ST or storage area. 5. Respondent was an officer of the company that was the developer for the condominium. state: Sections 4 and 6 of Article XI of the Association s Declaration of Condominium, Section 4. No amendment to this Declaration or said Articles or By-Laws shall be effective until the amendment has been recorded in the public records of Miami-Dade County, Florida. Section 6. Notwithstanding anything to the contrary herein, the Developer reserves the right to amend the Declaration and its exhibits so as to correct any error or omission, or any legal description contained herein, which legal description may have been incorrect by reason of a scrivener s error or surveyor s error, so long as such amendments do not materially and adversely affect the rights of unit owners, lienors, or mortgagees. Where the amendment does not materially and adversely affect the rights of unit owners, such amendment need be executed and acknowledged by the Developer only, and need not be approved by unit owners, the Association, lienors, or mortgagees. Any amendment materially affecting the rights or interests of the Developer s mortgage lender, the holders of Page 4 of 8
institutional mortgages on individual units, or as otherwise required by the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, shall require the approval of the mortgagees or agencies so affected; provided however that the consent of such mortgagee or agency shall not be unreasonably withheld. This subsection shall not apply to any amendment to the matters set forth under Florida Statute, Sections 718.110(4) and (8). Conclusions of Law 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. Pursuant to Section 718.1255, Florida Statutes, the Division has jurisdiction over a dispute involving the authority of the board to require an owner to take action with respect to the owner's unit or appurtenances, including common elements. Pursuant to Section 718.303(1), Florida Statutes, Respondent is required to comply with the Association s Declaration. Respondent converted a parking space into a storage area without approval of the Association in violation of Article XIII(2) of the Declaration. Respondent alleges that as an officer of the former developer, he was entitled under Article XI(6) of the Declaration to amend the Declaration and its exhibits, therefore Exhibit C of the Declaration was amended so parking space #18 could be converted to a storage area. Despite his voluminous filing of documents, Respondent could not show that an amendment of Exhibit C of the Declaration was ever recorded. Pursuant to Article XI(4) of the Declaration and Section 718.110(3), Florida Statutes, in order to be effective, an amendment is required to be recorded in the public records of Miami-Dade County. Since no recorded amendment of Exhibit C of the Declaration Page 5 of 8
exists that changed the designation from a parking space to storage, parking space #18 is required to be used as a parking space. In Sterling Village Condo., Inc. v. Breitenbach, 251 So. 2d 685 (Fla. 4th DCA 1971), the court stated: (A)s applied to buildings the term material alteration or addition means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance. The court in Tower House Condo., Inc. v. Millman, 410 So. 2d 926 (Fla. 3d DCA 1981), determined that the Sterling Village definition applied equally to changes in all common elements. By placing a gate, fence and items for storage on parking space #18, Respondent has materially changed its appearance, function and use. Respondent did not receive authorization from two-thirds of the unit owners as required by Article XIII(2) of the Declaration. Therefore, Respondent must restore parking space #18 to its original appearance, function and use. Based upon the foregoing: It is ORDERED: 1. No later than 5:00 p.m. on November 1, 2016, Respondent Hector Garcia, at his sole cost and expense, shall remove any and all obstructions stored on parking space #18, including, without limitation, the gate and fence installed on parking space #18 by Mr. Garcia to limit access to the space. 2. If Respondent does not timely remove any and all obstructions stored on parking space #18, including, without limitation, the gate and fence installed on parking space #18 by Mr. Garcia to limit access to the space, the Association may remove the Page 6 of 8
obstructions at Respondent s sole expense and may dispose of the gate, fence and any stored materials or items as it sees fit. 3. Respondent Hector Garcia shall use parking space #18 solely as a parking space and not as a makeshift storage closet, or in any other manner not consistent with its use as a parking space except as it may be converted in accordance with the Association s governing documents. DONE AND ORDERED this 28th day of September, 2016, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida 32399-1030 Telephone (850) 414-6867 Facsimile (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 Rule 61B-45.048, Florida Administrative Code. Page 7 of 8
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 facsimile (if available) to the following persons on this 28th day of September, 2016: Andrew Cuevas, Esq. Cuevas & Associates, P.A. 7480 SW 40 th Street Suite 600 Miami, FL 33155 Fax: 305-448-7300 Attorney for Petitioner Hector J. Garcia 2301 SW 27 th Avenue Unit #1103 Miami, FL 33145 Respondent Terri Leigh Jones, Arbitrator Page 8 of 8