Brickell Bay Club Condominium Ass'n, Inc. v. Hernstadt

• Decision Date: 18 August 1987
• Docket Number: No. 85-589,85-589
• Citation: Brickell Bay Club Condominium Ass'n, Inc. v. Hernstadt, 512 So.2d 994, 12 Fla. L. Weekly 2041 (Fla. App. 1987)
• Parties: 12 Fla. L. Weekly 2041 BRICKELL BAY CLUB CONDOMINIUM ASSOCIATION, INC., Appellant/Cross-Appellee, v. William HERNSTADT and Judith Hernstadt, his wife, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 994

512 So.2d 994

12 Fla. L. Weekly 2041

BRICKELL BAY CLUB CONDOMINIUM ASSOCIATION, INC., Appellant/Cross-Appellee, v. William HERNSTADT and Judith Hernstadt, his wife, Appellees/Cross-Appellants.

No. 85-589.

District Court of Appeal of Florida Third District.

Aug. 18, 1987.

Rehearing Denied Oct. 7, 1987.

Carlton, Fields, Ward, Emmanuel, Smith & Cutler and Alan C. Sundberg and Sylvia Walbolt, Tallahassee, for appellant/cross-appellee.

Hall, O'Brien and Cohen and Richard F. O'Brien, III, Miami, for appellees/cross-appellants.

Before HUBBART, NESBITT and FERGUSON, JJ.

PER CURIAM.

Brickell Bay Condominium Association, Inc. appeals from a judgment in favor of the Hernstadts, unit owners, in a dispute over ownership of a roof structure in a condominium building.

The Hernstadts converted a structure located on the roof of the building, adjacent to their unit, into a bathroom and bedroom to be used for servant quarters as part of their unit. The structure, which was not included in the original plans, was added during the construction of the building for the sole purpose of housing air conditioning equipment for a restaurant and club located in the unit now owned by the Hernstadts. ¹ Conversion of the structure was commenced by the Hernstadts without obtaining the Association's prior written approval as is required by the Declaration of Condominium.

It was not disputed that the Association gave the Hernstadts formal notice, before they closed on the purchase of their units, that the air conditioning room was not part of their unit. It is also agreed that the Association did not give approval to the Hernstadts' proposed renovation of the roof structure. In fact, the Hernstadts' proposed plan was specifically disapproved by the Association's engineers before the renovations began. After renovations of the structure had commenced, and in connection with a lawsuit filed by the Hernstadts regarding a leaky roof, the Association, through its attorney, advised the Hernstadts:

[T]he structure over [the Hernstadts' unit] is the property of the association and your client is trespassing.

The renovations continued, in conjunction with renovations within the Hernstadts' own unit, for some nine months. During that time, the parties were still attempting to resolve the dispute over the Hernstadts' right to use the structure. Two months after the work was completed the Association demanded that the Hernstadts discontinue use of the air conditioning room unless 75 percent of the owners gave the required consent.

On a separate point the facts show that the Association refused to amend the Declaration of Condominium to provide for the completed division of the Hernstadts' Terrace Suite "A" into two smaller residential units. The Hernstadts complained that failure to amend the Declaration, as had been agreed to, prevented a sale of one of the units to a prospective purchaser. It was uncontroverted, however, that the Association had repeatedly offered to amend the Declaration to reflect the division of the Hernstadts' unit into two apartments so long as the amendment did not include the disputed roof top structure. The Hernstadts refused to execute an amendment which did not recognize the air conditioning room as additional living space for their exclusive use and occupancy. Instead, they submitted to the Association a proposed amendment which provided:

The Structure [the rooftop room] shall constitute a Limited Common Element and the HERNSTADTS, their successors and assigns, shall be entitled to the exclusive use and possession of the Structure....

A fourth proposed Amendment submitted by the Hernstadts, which referred only to the Terrace Suite, was accompanied by a reservation of rights agreement as to the rooftop structure. The Association declined to execute the Hernstadts' proposed amendments or the reservation of rights agreement.

Adopting the arguments advanced by the Hernstadts, the trial court entered a Final Judgment ordering

1. The Hernstadts be and are hereby awarded the exclusive use and occupancy of the structure over the Terrace A ... which they have converted to be an integral part of the living area ... and the Association is estopped to deny them such exclusive use and occupancy.

3. The Hernstadts be and are hereby awarded damages against the Association attributable to the loss of the contract for sale of the smaller apartment made out of Terrace A....

The Hernstadts contend that the failure of the Association to at least attempt affirmatively to prevent the renovations justifies application of waiver and estoppel principles. We disagree.

A Declaration of Condominium is a requirement of section 718.303(1), Florida Statutes (1985), for the governance of relationships between condominium unit owners and the condominium association. The Declaration of Condominium, observed the court in Pepe v. Whispering Sands Condominium Association, 351 So.2d 755 (Fla. 2d DCA 1977),

is more than a mere contract spelling out mutual rights and obligations of the parties thereto--it assumes some of the attributes of a covenant running with the land, circumscribing the extent and limits of the enjoyment and use of real property.

A Declaration of Condominium is strictly construed to preclude any use not explicitly authorized by the Declaration. Fountains of Palm Beach Condo., Inc. No. 5 v. Farkas, 355 So.2d 163 (Fla. 4th DCA 1978).

A starting point in this review of the law of waiver and estoppel is the authorities which hold that the estoppel principle generally has no application to transactions which are forbidden by statute or ordinance or which are contrary to public policy. State ex rel. Schwartz v. City of Hialeah, 156 So.2d 675 (Fla. 3d DCA 1963); Confederation Life Ass'n v. Conte, 254 So.2d 45 (Fla. 3d DCA 19...