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MATERIAL ALTERATIONS – MAKE SURE TO TAKE THAT VOTE
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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