STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Surf House Condominium Association, Inc., Petitioner, v. Case No. 2013-01-6946 Universidad de las Americas, A.C., a Mexican corporation Respondent. / FINAL ORDER OF DISMISSAL FOR LACK OF JURISDICTION Procedural History On April 17, 2013, Surf House Condominium Association, Inc. (the Association) filed a petition for mandatory non-binding arbitration naming Universidad de las Americas, A.C., a Mexican corporation, as Respondent. On April 22, 2013, an Order Requiring Supplemental Information was entered requiring the Association to file a copy of the Rules and Regulations of the Association. Because the Association did not timely comply with the Order, an Order to Show Cause was entered on May 10, 2013, requiring the Association to show cause why the petition should not be dismissed because the Association had not responded to the April 22, 2013 Order. On May 10, 2013, the Association filed a copy of the Rules and Regulations. On May 14, 2013, an Order Requiring Answer and an Order Requiring Service were entered. Two Orders granting the Association s motions for an extension of time 1
to serve Respondent were entered - one on June 28, 2013 and one on August 28, 2013. On September 19, 2013, Respondent filed the following pleadings: 1. Corrected Notice of Appearance of Counsel; 2. Corrected Answer and Affirmative Defenses to Petition for Mandatory Non- Binding Arbitration and Counter-Petition for Declaratory Relief; 3. Respondent s Corrected First Request for Production to Petitioner; and 4. Respondent s Corrected First Set of Interrogatories to Petitioner. In pertinent part, the petition alleges: Jurisdiction 9. As set forth in Article IV, 4.1 of the Declaration, [p]arking spaces shall be assigned pursuant to the rules and regulations of the Association so as to provide parking for at least one automobile, i.e., one parking space for each apartment, provided, however in the event specific parking spaces are assigned in connection with the sale of an apartment unit by the Developer, the right to use of said designated parking spaces shall pass [as] an appurtenance to the condominium unit... [.] [ 1 ] (See page four (4) of the Declaration) 1 In its entirety, Article IV, section 4.1, of the Declaration provides as follows: 4.1 Limited Common Elements. Limited common elements include all parking spaces and areas. Parking spaces shall be assigned pursuant to the rules and regulations of the Association so as to provide parking for at least one automobile, i.e., one parking space for each apartment, provided, however, in the event specific parking spaces are assigned in connection with the sale of an apartment unit by the Developer, the right to use of the said designated parking spaces shall pass as an appurtenance to the condominium unit owned by the unit owner to whom such spaces are initially assigned, and the Association shall not thereafter reassign or change the said apartment owner s parking spaces without his written consent, provided further, said apartment owner shall not transfer or assign use of the said parking spaces except in connection with sale of the condominium apartment. Nothing here[in] shall be interpreted so as to prohibit the Developer from assigning more than one parking space as an appurtenance to a condominium unit. It in [sic] expressly acknowledged that the Developer may make an additional charge or increase the purchase price of the condominium unit in consideration for designating one or more parking spaces as limited common element appurtenant to said unit. The foregoing rights of the Developer shall remain in full force and effect until parking spaces are duly assigned to all units, or April 30, 1981, whichever occurs first. In pertinent part, one set of the Association s Rules and Regulation provides as follows: AS TO USE OF COMMON AND LIMITED COMMON ELEMENTS RULES AND REGULATIONS... Parking spaces in the parking garage are limited common elements and are not owned by any unit owner. Each unit owner owns an undivided share and certain interest in the condominium property, including the limited common elements. Parking spaces shall be 2
10. Despite the proscriptions set forth in the Declaration regarding parking spaces, the Unit Owner continually uses two (2) parking spaces, despite owning only one (1) unit, and has rebuffed all demands made by the Association to discontinue its practice of violating the Declaration. Respondent s Answer denies the above allegations. In pertinent part, Respondent s Affirmative Defenses state: 5. Respondent is the lawful owner of parking space numbers 36 and 37 which are appurtenances to Condominium Unit 601. 6. Respondent has the right to the exclusive use of parking space numbers 36 and 37 which are appurtenances to Condominium Unit 601. 7. Petitioner is estopped from receiving any/all remedies sought in the Petition by virtue of the express terms of the Declaration of Condominium. 8. Petitioner has waived any/all remedies sought in in [sic] the Petition by virtue of the express terms of the Declaration of Condominium. Section 718.1255(1), Florida Statutes, provides as follows: (1) DEFINITIONS.--As used in this section, the term dispute means any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not to take any action, involving that owner s unit or the appurtenances thereto. 2. Alter or add to a common area or element. assigned by the Association so as to provide parking for at least one automobile for one apartment. Automobiles shall be parked in the areas provided for that purpose. However, the Developer of the condominium in connection with the original sale of an apartment retained the right to assign a particular parking space to the purchaser of the Developer s apartment. Those spaces so assigned by the Developer cannot be assigned by the Association. In pertinent part, another set of the Association s Rules and Regulation provides as follows: SURF HOUSE CONDOMINIUM Rules and Regulations... 18.- Parking spaces in the underground garage are assigned by the Association and are limited common elements. Once assigned the space belong[s] to the unit owner as long as he owns the apartment. It may not be transferred. Only the person assigned to the space can lend the parking slot, giving permission in writing with [a] copy to the Association. Only motor vehicles or bicycles may be parked in the garage. 3
(b) The failure of a governing body, when required by this chapter or an association document, to: 1. Properly conduct elections. 2. Give adequate notice of meetings or other actions. 3. Properly conduct meetings. 4. Allow inspection of books and records. "Dispute" does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. (emphasis added). It is clear from the pleadings filed in this case that the dispute primarily involves title to the parking spaces. Such disputes are not subject to arbitration. See, e.g., Orange Tree Villas Ass n, Inc. v. Rice, Arb. Case No. 2010-005182, Notice of Reassignment and Final Order of Dismissal (April 16, 2010) (citing Florida Tower Condo., Inc. v. Mindes, 770 So. 2d 210 (Fla. 3 rd DCA 2000). Based upon the foregoing, it is ORDERED: The petition is DISMISSED for lack of jurisdiction, and Arbitration Case Number 2013-01-6946 is closed. The parties may seek relief in a court of competent jurisdiction. DONE and ORDERED this 24 th day of September, 2013, at Tallahassee, Leon County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1030 Phone: 850-414-6867; FAX: 850-487-0870 4
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile and by U.S. mail, postage prepaid, to the following persons this 24 th day of September, 2013: Scott R. Shapiro, Esq. Glazer & Associates, P.A. One Emerald Place 3113 Stirling Road, Suite 201 Fort Lauderdale, Florida 33312 Facsimile: 954-333-3983 Attorneys for Petitioner Leo Benitez, Esq. Benitez & Associates 122 Minorca Avenue Coral Gables, Florida 33134 Facsimile: 305-444-6215 Attorneys for Respondent Glenn Lang, Arbitrator 5