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MATERIAL
ALTERATIONS – LOOK BEFORE YOU LEAP
By
Eric Glazer, Esq.
Published
January 13, 2014
Today we discuss an often litigated topic, "material
alterations." As
many of you know, a board of directors in a condominium can't
make "material" changes to the common areas unless a
vote of the community is obtained.
Usually, a 75% vote in favor of the change is required.
You may be surprised to learn though that the Board can
circumvent that 75% requirement in certain circumstances if the
change can be classified as a "repair."
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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