McAllister v. Breakers Seville Ass'n, Inc.

• Citation: 981 So.2d 566
• Decision Date: 07 May 2008
• Docket Number: No. 4D07-2003.,4D07-2003.
• Parties: Steven McALLISTER, Appellant, v. BREAKERS SEVILLE ASSOCIATION, INC., Appellee.
• Court: Court of Appeal of Florida (US)

981 So.2d 566

Steven McALLISTER, Appellant, v. BREAKERS SEVILLE ASSOCIATION, INC., Appellee.

No. 4D07-2003.

District Court of Appeal of Florida, Fourth District.

May 7, 2008.

Jessica Slatten and Robert Rivas of Sachs & Sax, Tallahassee, for appellant.

Mark S. Mucci of Benson, Mucci & Associates, LLP, Coral Springs, for appellee.

HAZOURI, J.

Steven McAllister appeals the final judgment entered in his action for disparagement of title, loss of rental income, and declaratory relief, against Breakers Seville Association, Inc. ("Association"). The Association cross-appeals. We affirm in part and reverse in part.

The Association is a non-profit cooperative association that owns an eight-unit apartment building in Fort Lauderdale, Florida. McAllister owns the real property upon which the building sits, and leases the property back to the Association through a 99-year ground lease. McAllister also owns shares representing ownership in two of the units, units 1 and 2. Unit 1, purchased by McAllister in 1995, is the only two-bedroom unit in the building. Unit 2, purchased in 1994, is an efficiency.

In 1996, a dispute arose between McAllister and the Association over his right to park more than one vehicle in the parking space assigned to unit 1 and his right to park his motorcycle at the apartment building pursuant to the cooperative's bylaws. Another dispute arose regarding McAllister's alleged failure to pay a special assessment to upgrade the plumbing system and unit screen enclosures. McAllister was assessed various fines for his violations, which resulted in liens following non-payment. In late 1996, the Association filed suit to foreclose on a lien recorded against McAllister for failure to pay the special assessment.

McAllister filed a third amended counterclaim alleging three counts. Count I asserted disparagement of title. McAllister alleged that the Association recorded a false lien which induced others not to rent his unit, thus, causing special damages. Count II sought damages for loss of rental income from the date the lien was recorded through 2004, when the Association allegedly stopped interfering with McAllister's ability to rent his units without cause. Count III sought declaratory relief regarding McAllister's entitlement to the parking space allegedly assigned to unit 1.

In 1999, the trial court dismissed the foreclosure action with prejudice on McAllister's motion for summary judgment, finding that the Association prematurely filed the foreclosure action and failed to obtain the required votes to file the action under the bylaws. The trial court ordered that the case proceed to trial on McAllister's counterclaims. Thereafter, the trial court held a final hearing and found for the Association on Count I of the counterclaim, and rendered Counts II and III moot. McAllister appealed the final judgment. This court reversed, finding that "entry of a final judgment was error because no notice of trial was properly given." McAllister v. Breakers Seville Ass'n, 891 So.2d 1155, 1156 (Fla. 4th DCA 2005).

After a trial on remand, the trial court found that the Association had no authority to prohibit the parking of the motorcycle and demand its removal until 2000, when it enacted a "valid" and "proper" amendment. Because the trial court deemed the 2000 amendment concerning the motorcycle valid, it found that McAllister cannot keep a motorcycle on the premises.

The trial court determined further that bylaw amendments passed in 1996 and 1997 were not properly passed, and therefore, unenforceable. The trial court stated that although it had questions concerning the validity and enforceability of amendments enacted in 2000, it found them valid and enforceable, including the amendment restricting each parking space to one vehicle. The trial court found that the driveway to the east of unit 1 is not an appurtenance to the unit, is not a part of the unit, and that section 719.1055, Florida Statutes, does not prevent the Association from amending the bylaws to restrict the use of the parking space to one vehicle.

On the disparagement of title claim, the trial court found in favor of McAllister. It concluded that there was evidence and testimony to support the claim that the Association disparaged title to his unit by its actions and improperly prevented him from renting his units. Specifically, the trial court stated: "[T]he Board of Directors of [the Association], through various actions, treated McAllister as if he had a target on his back that the Board was shooting at, and the evidence supports an award of these damages." McAllister was awarded $44,880 in damages, plus interest.

McAllister's first argument on appeal is that the trial court erred in declining to enter a declaratory judgment that the parking space assigned to unit 1 was an appurtenance to the unit, thus allowing the 2000 bylaw amendment creating a "one vehicle per space" parking restriction to stand. We agree.

In Lawyers Title Insurance Co. v. Novastar Mortgage, Inc., 862 So.2d 793 (Fla. 4th DCA 2003), this court stated:

It is well-settled that a trial court's ruling comes to this court clothed with a presumption of correctness and the burden is on appellant to demonstrate error. A trial court's findings of fact in a declaratory judgment action will be upheld if supported by competent substantial evidence. Conversely, any conclusions of law are reviewed de novo.

Id. at 796-97 (citations omitted).

This issue turns on whether the parking space in question is an appurtenance to unit 1. Section 719.1055(1), Florida Statutes (2000), provides:

Unless otherwise provided in the original cooperative documents, no amendment thereto may change the configuration or size of any cooperative unit in any material fashion, materially alter or modify the appurtenances of the unit, or change the proportion or percentage by which the owner of the parcel shares the common expenses and owns the common surplus, unless the record owner of the unit and all record owners of liens on it join in the execution of the amendment and unless the record owners of all other units approve the amendment. Cooperative documents in cooperatives created after July 1, 1994, may not require less than a majority of total voting interests for amendments under this section, unless required by any governmental entity.

Therefore, if the parking space is an appurtenance, the Association cannot materially alter or modify it without McAllister's consent. Section 719.105(1), Florida Statutes (2000), addresses appurtenances in the context of cooperatives:

(1) Each cooperative parcel has, as appurtenances thereto:

(a) Evidence of membership, ownership of shares, or other interest in the association with the full voting rights appertaining thereto. Such evidence must include a legal description of each dwelling unit and must be recorded in the office of the clerk of the circuit court as required by s. 201.02(3).

(b) An undivided share in the assets of the association.

(c) The exclusive right to use that portion of the common areas as may be provided by the cooperative documents.

(d) An undivided share in the common surplus attributable to the unit.

(e) Any other appurtenances provided for in the cooperative documents.

"Cooperative documents" are defined as:

(a) The documents that create a cooperative, including, but not limited to, articles of incorporation of the association, bylaws, and the ground lease or other underlying lease, if any.

(b) The document evidencing a unit owner's membership or share in the association.

(c) The document recognizing a unit owner's title or right of possession to his or her unit.

§ 719.103(13), Fla. Stat. (2000).

Further, several cases cited by McAllister support the notion that courts must look to the governing documents to determine what constitutes an appurtenance.¹ In Maass v. Christensen, 414 So.2d 255 (Fla. 4th DCA 1982), this court noted that an assigned parking space was an appurtenance to the unit to which the space was assigned because all of the condominium documents at issue, including the declaration and bylaws, "tie[d] assigned parking spaces to apartment ownership." Id. at 257. Consequently, this court concluded that the assigned parking space was an appurtenance to the unit. Id.

Similarly, in Tower House Condominium, Inc. v. Millman, 410 So.2d 926 (Fla. 3d DCA 1981), the Third District held that the condominium documents established that a unit owner's undivided share in the parking area, a common element, constituted an appurtenance to his unit. Id. at 930. Accordingly, no material alterations or modifications could be made to the parking area without the vote of all record owners of the condominium. Id.

Finally, in Brown v. Rice, 716 So.2d 807 (Fla. 5th DCA 1998), the Fifth District held that a garage that had been assigned to a specific condominium unit by the developer was appurtenant to the unit and, therefore, could not be conveyed separately from the unit. Id. at 810. In so holding, the court relied upon the condominium documents and the following definition of "appurtenant" from the Sixth Edition of Black's Law Dictionary: "belonging to; accessory or incident to; adjunct, appended, or annexed to...." Id.

Although the trial court stated that it considered the cooperative documents in determining that the parking space was not an appurtenance, this court reviews that question de novo. See Lawyers Title, 862 So.2d at 797. We reverse on this issue because we agree with McAllister's contention that the cooperative documents establish that the parking space in question is an appurtenance to unit 1, and therefore, the Association could not materially alter the space without McAllister's consent.

Under the proprietary lease, which constitutes a "cooperative document" under section 719.103(13)(a), shareholders take title to their units and "the [unit's] appurtenances." Further, each assignment of the proprietary...