By Eric Glazer, Esq.

Published April 9, 2018


            I’m particularly proud of a piece of legislation that I helped draft this year.  Florida Statute 718.113 always required that in order for the Board to make a “material alteration” to the common areas, a vote of the owners is required in the percentage required by the declaration, and if the declaration is silent, a 75% vote is required.  Typically, a 75% vote of the owners is required in order to make the material alteration.


            About two years ago I was involved in a Dade County case wherein I argued that millions of dollars in material alterations were made to the common areas without first getting the required vote of the owners.  The trial judge ruled that the vote of the owners could be taken after the material alterations were actually made.  I disagreed, arguing that the clear intent of the statute was that the vote be taken “before” the material alterations are commenced and before a board can pass expensive special assessments to make these material alterations.  Even worse, suppose tens of thousands or millions of dollars are spent making material alterations, and the owners ultimately do not vote in favor of the material alterations?  Now what?  In order to put the property back to the condition it was in, do we now specially assess the same unit owners who weren’t even given the opportunity to vote in the first place.  Is that fair?  Never the less, the court made its decision.


            Last week however, Governor Scott signed into law a clarification to the statute that I drafted.  Now, the statute reads:


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 alterations or additions before the material alterations or substantial additions are commenced.  This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018. 


            I always thought the law was clear because to read it any other way would potentially lead to an absurd result, especially if the vote was never obtained.  I firmly believe The Florida Legislature clarified the law correctly.


            So remember, before making that material alteration, get the required vote.  Here are some decisions by Florida arbitrators who determined whether or not a change was "material" or not and whether or not a vote of the community was required.


Capistrano Condominium vs. Jochim where the board, in furtherance of their duty to protect the common elements determines that landscaping stones are needed to address erosion problems, the board’s statutory duty to preserve the common elements overrides any requirement requiring unit owner consent. 


Cundiff vs. Flamingo K Apartments the installation and expansion of a sprinkler system did not require unit owner approval where the Board was able to show that the area in question had a system in place that was inoperable and the vegetation was dying. 


Barnhim vs. Vista Harbor Association, Inc  unit owner approval not required for installation of a chain linked fence where the fence provided security from activities occurring in an adjacent public parking lot and it was shown to be reasonable and necessary for the security of the association.


Krietman vs. The Decoplage Condominium  replacement of common element acoustical ceiling tiles with drywall,   and replacement of ceramic floor tiles with marble,  was determined to be necessary maintenance and did not require a unit owner approval.  The Board was able to show that drywall is more durable and cost effective.   The association should not be required to replace material that has done poorly with the identical material which may also be expected to perform poorly when it has an alternative that has a comparable function.


Lamar vs. Peppertree Village the board determined to replace deteriorated wood siding with stucco siding, and the arbitrator held that no vote of the owners was required. The changes are primarily maintenance related and wood siding is particularly inappropriate in South Florida where it attracts insects and is vulnerable to frequent tropical rains.


Midman vs. Sun Valley East Condominium Association the repair of a pool deck which was accomplished by a removal of an existing deteriorated Chattahoochee deck and replaced with paver brick was held to be a necessary repair and not a material alteration where the paver bricks required less maintenance and had a service life of two or three times that of Chattahoochee decking.


Baran vs. Romont South Condominium K the association’s decision to allow a unit owner to plant a garden behind his unit was not a material alteration of the common elements requiring a vote of the unit owners and the association may make day to day decisions on landscaping questions without seeking unit owner approval.


Ivanovski v Golden Horn: no unit owner vote needed for association to change from carpeting to tile in a room adjacent to the pool, because tile was superior.  And….the association can change the style of lighting to provide for more energy efficient lighting without a vote of the unit owners.


However, when it came to changing the color of the building, both inside and out, here is what the order actually said…..


Accordingly, it is ORDERED that the association shall have 60 days in which to prepare and obtain the proper unit owner approval for the changes in lobby (other than the flooring replacement) and the color in the hallway wall paint and the exterior paint color scheme, failing which the association shall have 90 days thereafter to return the hallway walls and building exterior to their original color and restore the lobby walls to their original form and/or condition.

            That's right.  Failure to obtain a vote for a material alteration, when required, may result in the actual un-doing of the change.  If a Board spends money to paint a building a different color, without a vote, the arbitrator can make the board paint it back to the original color.  Talk about the potential for wasting money!  All boards should be careful and get the advice of counsel BEFORE making the change.


            In an HOA, the law is a little different.  The statute says:

All common areas and recreational facilities serving any homeowners’ association shall be available to parcel owners in the homeowners’ association served thereby and their invited guests for the use intended for such common areas and recreational facilities.


In other words…..don’t turn the tennis court into a parking lot.

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About HOA & Condo Blog

Eric Glazer Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2

decades and is the owner of Glazer and Associates, P.A. a seven attorney law firm with offices in Fort Lauderdale and Orlando and satellite offices in Naples, Fort Myers and Tampa.


Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at noon each Sunday on 850 WFTL.




He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 10,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.

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