Lexington Place Condo. Ass'n v. Flint

Decision Date24 June 2022
Docket Number5D21-2644
PartiesLEXINGTON PLACE CONDOMINIUM ASSOCIATION, INC., A FLORIDA CORPORATION NOT FOR PROFIT, Appellant, v. MICHELLE FLINT AND KEVIN FLINT, Appellees.
CourtCourt of Appeal of Florida (US)

Appeal from the Circuit Court for Orange County, LT Case No 2020-CA-3981-O, Reginald K. Whitehead, Judge.

James E. Olsen, of The Law Offices of John L. Di Masi, Orlando, for Appellant.

Karen S. Cox and Michelle T. Reiss, of Appletone Reiss, PLLC Tampa, for Appellees.

EDWARDS, J.

Without conducting a vote of the owners, Appellant, Lexington Place Condominium Association, Inc. ("Association") through its Board of Directors ("Board"), made material alterations to the common elements by eliminating an existing dog park and a wallyball court. The Board also enacted a new rule restricting tenants' rights to have pets that conflicted with an express provision of the Declaration of Condominium ("Declaration"). Appellees, Michelle and Kevin Flint ("Flints"), own several units at Lexington Place, and their challenge to the material alterations and new rule was successful during non-binding arbitration. The Association sought review of the arbitration decision by pursuing a trial de novo in circuit court. The circuit court ruled in favor of the Flints and affirmed the arbitration award. We agree with the arbitrator and trial court that the Board ignored clearly relevant and controlling provisions of the Declaration. The Board lacked authority to make the material alterations to common elements or enact the new restrictive pet rule absent sufficiently favorable votes of the unit owners. Accordingly, for the reasons set forth below, we affirm the final summary judgment the trial court entered in favor of the Flints, and we grant their motion for appellate attorney's fees.

Material Alterations

Following the Association and its Board's actions, the Flints promptly filed a Petition for Mandatory Non-Binding Arbitration with the Department of Business and Professional Regulation Division of Florida Condominiums, Timeshares and Mobile Homes ("DBPR") against the Association alleging, inter alia, that the Association in 2019 had violated its governing documents by removing two common elements, the dog park and wallyball court,[1]without a vote of the unit owners. In February 2020, the DBPR arbitrator filed his Summary Final Order, which ruled in favor of the Flints. The Association filed a Motion for Rehearing And/Or Motion for Clarification, which was denied by the arbitrator. The Association then filed a complaint for trial de novo in circuit court in which it repeated the same arguments made to the arbitrator. The circuit court ruled in favor of the Flints and affirmed the arbitrator's decision.

From arbitration through appeal, the Association has argued that they were authorized to eliminate the dog park and wallyball court by Article 8 of the Declaration which states:

8. Additions, Alterations, or Improvements by the Association. Whenever in the judgment of the Board of Directors, the Common Elements, the Association Property, or any part of either, shall require capital additions, alterations or improvements (as distinguished from repairs and replacements) costing in excess of $100,000 in the aggregate in any calendar year, the Association may proceed with such additions, alterations or improvements only if the making of such additions, alterations or improvements shall have been approved by a majority of the Unit Owners represented at a meeting at which a quorum is attained.

On the other hand, the Flints have consistently argued that the Association and its Board's power to make material alterations to common elements was governed and restricted by Section 6.4 which states:

6.4 Material Alterations or Substantial Additions. The Association shall not make any material alterations or substantial additions to the Common Elements or to real property which is Association Property, without the approval of a majority of the voting interests of the Unit Owners.

"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." § 718.113(2)(a), Fla. Stat. (2019). "A declaration of condominium is 'the condominium's constitution.'" Beachwood Villas Condo. v. Poor, 448 So.2d 1143, 1145 (Fla. 4th DCA 1984) (quoting Schmidt v. Sherrill, 442 So.2d 963, 965 (Fla. 4th DCA 1984)).

The terms "material alteration" or "materially alter" in condominium declarations, when not otherwise defined, mean "to palpably or perceptively vary or change the form, shape, elements, or specifications of a building [or common element] . . . in such a manner as to appreciably affect or influence its function, use, or appearance." Sterling Vill. Condo., Inc. v. Breitenbach, 251 So.2d 685, 687 (Fla. 4th DCA 1971); see also Tower House Condo., Inc. v. Millman, 410 So.2d 926, 928 (Fla. 3d DCA 1981). It is indisputable that elimination of the dog park and wallyball court were material alterations of then-existing common elements.

While Article 8 of the Declaration gives the Association and its Board certain authority to deal with day-to-day matters, subject to an annual dollar limit, it does not mention "material alterations." The Association's reliance upon Lenzi v. Regency Tower Ass'n, 250 So.3d 103 (Fla. 4th DCA 2018), is misplaced. Regency Tower's declaration explicitly authorized its board of directors to make material alterations to common elements with no requirement of owner approval, while the Association's Declaration, specifically Section 6.4, explicitly requires a majority vote of owners prior to the material alteration of any common element. Thus, under the circumstances present here, the Association and its Board lacked authority to eliminate the dog park and wallyball court in the absence of the majority of owners voting their approval.

Rule Restricting Pet Ownership by Tenants

In their DBPR petition, the Flints also successfully challenged the Association and its Board's 2019 adoption of Rule IX which states:

IX. PET RESTRICTIONS
Notwithstanding the provisions of Section 17.4 of [the Declaration]. Tenant(s) or Occupant(s) are not permitted to maintain household pets in a Unit. Section 17.4 of [the Declaration] permits "Unit Owners" to maintain pets within a Unit, and subjects only 'Unit Owners" [sic] for the fines and penalties for violations of Section 17.4.
Any pets residing in units with a Tenant(s) or Occupant(s) at the time and date these rules are adopted, are considered "grandfathered" and not subject to the Pet restrictions herein. Existing pets are grandfathered in as to that
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