STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION DEBRA J. ROBINSON and WILLIAM LADO, Petitioners, v. Case No. 2015-03-3687 THE VILLAGE SPIRES CONDOMINIUM ASSOCIATION, INC., Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes conducted a final hearing in this case on February 18, 2016. During the hearing, the parties presented the testimony of witnesses, entered documents into evidence and cross-examined witnesses. The parties have filed post-hearing memoranda. This order is entered after consideration of the complete record. Appearances For Petitioner: Jeffrey A. Rembaum, Esq. Kaye Bender Rembaum, PLLC. 9121 N. Military Trail, Suite 200 Palm Beach Gardens, FL 33410 For Respondent: Russell E. Klemm, Esq. Clayton & McCulloh 1065 Maitland Center Commons Blvd. Maitland, FL 32751 Page 1 of 9
Statement of the Issues 1. Whether The Village Spires Condominium Association, Inc. (the Association) violated Article VII, Section B, of the Association s Declaration of Condominium and Section 718.113(2), Florida Statutes, when it implemented without unit owner approval, the alterations, changes and additions alleged by Petitioners? 2. Are Petitioners claims time-barred by the statute of limitations? Findings of Fact 1. Petitioner, Debra Robinson, is the record owner of the residential real property located at 3554 Ocean Drive, #904S, Vero Beach, FL 32963. 2. Petitioner, William Lado, is the record owner of the residential real property located at 3554 Ocean Drive, #901S, Vero Beach, FL 32962. 3. The Village Spires Condominium Association, Inc., is a condominium association pursuant to Chapter 718, Florida Statutes, and is responsible for the maintenance and operation of the common elements for the condominium buildings known as The Village Spires North (North Tower) and The Village Spires South (South Tower), located in Vero Beach, Indian River County, Florida. 4. The units owned by Debra Robinson and William Lado are located within the South Tower. 5. Within the South Tower, there exists a common element area as depicted in the elevator machinery room plan of Exhibit C to the Declaration of Condominium of The Village Spires South, a Condominium, recorded in the Official Records of Indian River County, Florida, in Official Records Book 446, Page 1 (the Declaration ). Within the elevator machinery room plan, there exists an elevator machinery room and Page 2 of 9
other surrounding common element areas, which can best be described as typical attic space. The westerly half of the common element area surrounding the elevator machinery room is the common element area currently being used as a workshop for both the Association s employees and members (the Attic). 6. The Attic is located at the very top of the South Tower, above the maximum height of the elevator service, and is only accessible by ascending two (2) flights of stairs. 7. In the Declaration, the Attic is an undesignated, empty common element space, and but soon after opening, the Attic was used by the Association for the storage of tools and as a workspace for the exclusive use of the Association s maintenance employees. 8. The hurricanes of 2004 caused significant damage to the condominium building, which required major reconstruction, gutting the condominium buildings to the concrete walls/slabs. Residents of the South Tower were not permitted to re-occupy the South Tower until 2007. 9. After re-occupancy, Peter Lonardelli, an owner of a unit in the South Tower ( Lonardelli ), removed construction waste and re-purposed excess construction materials left in the Attic by the reconstruction contractor and converted the Attic into a workshop. 10. During this conversion process, the Attic was altered to accommodate workshop type items, including, without limitation, workbenches, shelving, pegboards, a chop saw, a mounted metal grinder, a drill press, and additional machinery and tools Page 3 of 9
owned by Lonardelli. The conversion process also included the installation of metal pegs directly into the concrete walls of the Attic. 11. The Attic, an area which was once limited to use only by maintenance employees of the Association as storage for tools and materials owned by the Association, now contained storage of tools and materials owned and used by certain unit owners. The Association permits the Attic to be used by all unit owners as a workshop. 12. Although Lonardelli claims that such property was donated to the Association, the Association s witnesses denied accepting the donation. 13. At no time did the Association obtain the approval of the unit owners to convert the Attic into a workshop, for the use of unit owners. 14. William Lado had no knowledge of the Association s conversion of the Attic until approximately late December 2013 or early January 2014, when, as a member of the Board of Directors and President of the Association at such time, he was approached by a unit owner who requested that the Board of Directors provide the unit owner with a key to the workshop. 15. Debra Robinson first became aware of the alteration of the Attic in approximately late December 2013 or early January 2014 when William Lado recounted this occurrence to her. 16. On April 3, 2015, the Board of Directors of the Association made and passed a motion at a meeting of the Board of Directors providing conditional access to the workshop to all unit owners. More specifically, the following motion was made and approved: Page 4 of 9
Any resident desiring to access the Workshop, upon reasonable request made to a member of the Committee, and upon executing the current form of indemnification, shall have the right to access and use the Workshop under supervision of a member of [the Village Spires Maintenance Shop] Committee. 17. Article VII, Section B(2) of the Declaration states: There shall be no alteration or further improvement of the common elements or limited common elements without prior approval in writing by the record owners of not less than seventy-five percent (75%) of the unit owners, provided that such alteration or further improvement does not interfere with the right of any owner without their consent. The share of any costs assessed for such improvement shall be assessed to all unit owners in the same proportion as their common expenses. 18. Article IV, Section C of the Declaration states: Common elements means the portions of the condominium property not included in the units and shall include the tangible personal property required for the maintenance and operation of the condominium even though owned by the Association, as well as the items stated in the Condominium Act. (Emphasis supplied). Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant to Section 718.1255, Florida Statutes. Petitioners allege that the Association has made alterations to the Attic that require approval of the unit owners pursuant Article VI, Section C, of the Declaration and Section 718.113(2)(a), Florida Statutes. Section 718.113(2)(a) states: (2)(a) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the Page 5 of 9
alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008. 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. Petitioners petition alleges that the Attic was altered to accommodate workshop type items, including, without limitation, shelving and workbenches, a chop saw, a mounted metal grinder and a drill press, without the necessary approval of the unit owners. The floor plan for the Attic in the Declaration does not denote that the Attic is to be used as a workshop. Further, there is no workspace or storage facility depicted on any of the floor plans anywhere in the South Tower. Nonetheless, the Declaration specifically includes as a common element, the tangible personal property used for the maintenance and operation of the condominium. If the common elements include tools for maintenance, the Declaration must have contemplated that they would be stored and used somewhere in the condominium, and since the Attic has been used by the Association s employees as a workshop for as long as anyone remembers, the arbitrator must conclude the Attic was not empty space but originally intended to be a workshop. Page 6 of 9
Yet, sometime after the 2007 re-occupation of the South Tower, the workshop s use was expanded to allow unit owners to store tools and use the space as well. The Attic was transformed from just a workshop for the maintenance of the condominium to a workshop for the do-it-yourselfer and recreational hobbyist unit owners. The new use may provide an extra benefit to unit owners, but it comes with new risks and costs as well. Therefore, this conversion of the Association s maintenance workshop to allow use to the unit owner themselves was a material alteration of the Attic s use and function which would require approval of the unit owners. The Association alleges that the petition is barred because Petitioners failed to take any action to timely institute legal proceedings, as set forth in Section 95.11(2)(b), Florida Statutes. In considering the defense of the statute of limitations, the period begins to run when the action may be brought. See Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579 (Fla. 5th DCA 2003)(Unit owner alleged condominium association failed to enforce the declaration against five unit owners who erected screen enclosures in violation of the documents. Trial court required removal of two of the five enclosures based upon the five year statute of limitations. Appellate court found either one year or five year limitation period could apply, but court applied longer five year period concluding that when there is a reasonable question as to which limitation period should apply, resolution should be in favor of longer limitation period.). Therefore, the applicable limitations period is five years. Before a claim accrues for purposes of the statute of limitations, a claimant must be aware of his or her right of action. Pawley v. Brickell Bay Tower Condo. Ass n, Inc., Arb. Case No. 2004-00-6973, Summary Final Order (August 12, 2004). The period for Page 7 of 9
the statute of limitations begins to run when the facts giving rise to the cause of action were discovered or should have been discovered through the exercise of due diligence. Id. Although the alteration was made soon after the re-occupation of the South Tower in 2007, the average unit owner could not reasonably know about it. The Attic is behind a locked door only accessible by ascending two (2) flights of stairs from the top residential floor. The evidence showed that the first time Petitioners discovered the material alteration was late 2013 or early 2014, when told about it by another unit owner. The Association first officially recognized the new use of the Attic at its April 3, 2015 board meeting. Since both events were less than five years before they filed their petition, their action is not time-barred. Based upon the above, it is ORDERED: 1. As stated above, Petitioners request for relief is GRANTED, in part. 2. The Association may continue to use the Attic for the storage of its tools and for workshop space for the maintenance and operation of the condominium. 3. Until the alteration is approved by 75% of the unit owners, the Attic shall not be used as workshop by individual unit owners. 4. No later than February 9, 2017, all non-association owned tools and equipment must be removed from the Attic, unless approval from 75% of the unit owners has been attained. DONE AND ORDERED this 9th day of January, 2017, at Tallahassee, Leon Page 8 of 9
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. 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 9th day of January, 2017: Jeffrey A. Rembaum, Esq. Kaye Bender Rembaum, PLLC. 9121 N. Military Trail, Suite 200 Palm Beach Gardens, FL 33410 Email: jrembaum@kbrlegal.com Attorney for Petitioners Russell E. Klemm, Esq. Clayton & McCulloh 1065 Maitland Center Commons Blvd. Maitland, FL 32751 Email: rklemm@clayton-mcculloh.com Attorney for Respondent Terri Leigh Jones, Arbitrator Page 9 of 9