Palma Sola Harbour Condominium, Inc. v. Huber, s. 78-1403
| Decision Date | 14 September 1979 |
| Docket Number | Nos. 78-1403,78-1882 and 79-300,s. 78-1403 |
| Citation | 374 So.2d 1135 |
| Parties | PALMA SOLA HARBOUR CONDOMINIUM, INC., Appellant, v. James C. HUBER and Joyce W. Huber, husband and wife, Appellees. James C. HUBER and Joyce W. Huber, his wife, Appellants, v. PALMA SOLA HARBOUR CONDOMINIUM, INC., Appellee. |
| Court | Florida District Court of Appeals |
Clyde H. Wilson, Jr. and John S. Jaffer of Wilson, Wilson & Namack, Sarasota, for Palma Sola Harbour Condominium, Inc.
William A. Dooley, of Conley & Dooley, Sarasota, and Gregory C. Meissner and Douglas A. Wallace, Bradenton, for the Hubers.
These consolidated appeals concern the phased development of Palma Sola Harbour Condominium. In 78-1403 and 78-1882 Palma Sola Harbour Condominium, Inc., the condominium association, contests final and amended final judgments in favor of James C. Huber and Joyce W. Huber, owners of the undeveloped portion of Palma Sola. Those judgments declared easement rights and encroachment liabilities with respect to the condominium property and determined ownership interests in condominium recreational facilities. We remand for a determination of Palma Sola's entitlement to damages for the encroachment; otherwise we affirm those judgments.
While these appeals were pending, on motion of the Hubers this court relinquished jurisdiction to the trial court to determine if Palma Sola should be required to amend its Declaration of Condominium. Instead, the trial court declared that a condominium unit which had been improperly located by the Hubers was a part of Palma Sola's common elements. In appeal 79-300 the Hubers argue that the trial court's order exceeded the scope of our relinquishment. We agree and reverse the order granting supplemental relief.
Beginning in 1974, I.Z. Mann & Associates, Inc., developed Sections 1 through 3 and partially developed Section 4 of the Palma Sola complex and built units 1 through 141 in these sections. Mann then ceased operations because of financial difficulties. At that time Mann had not started construction of units 142 to 151 in Section 4 or of 24 units planned as Section 5. In 1977 the Hubers acquired title to the undeveloped portion of Section 4 and all of Section 5 from the Westside National Bank of Bradenton which had received a conveyance of these sections from Mann in lieu of foreclosure.
The Hubers sued Palma Sola seeking a declaratory judgment that they had a right of access to Sections 4 and 5 across the common elements of Sections 1 through 3 which were then occupied. The Hubers also sought to require Palma Sola to amend its Declaration of Condominium to include Sections 4 and 5 in the complex.
Palma Sola answered and counterclaimed for a declaratory judgment that the Hubers could not build an eleventh unit on Section 4 because the Declaration permitted only 10 units in that section. Despite warnings from Palma Sola, the Hubers proceeded with construction of 11 new units on Section 4. At trial the evidence revealed that the 10 authorized units under construction (units 142-151) exceeded the boundaries of those units as platted although it did not establish the precise difference. Palma Sola then amended its pleadings to seek removal of all 11 units under construction on the ground that they encroached upon its common elements.
At the conclusion of the trial, the court found that the 10 units in Section 4 did not violate the Declaration which stipulated that the unit boundary lines would be the "as actually built" lines. 1 The court, however, declared the eleventh unit to be an encroachment on Palma Sola's common elements and reserved jurisdiction to determine damages for the encroachment.
Palma Sola appealed contending that the trial court erred in refusing to order removal of the 11 units. Palma Sola argues that the trial court erred in failing to order removal of the 10 authorized units because the units were not located according to the boundaries set out in the plat and exceeded the size of the units as platted. The court, however, because of its conclusion that the "as actually built" clause controlled, not only refused to order removal of these units but declined as well to award damages for their encroachment on the common elements even though the units also exceeded in size the platted units.
The purpose of an "as built" clause is not to eliminate any possibility of encroachment on common elements where a declaration of condominium contains such a clause, but is to ensure that minor irregularities in the location or size of units do not become a cloud on the titles of individual units. Thus, we reject the Hubers' argument that there could have been no encroachment in this case. We accept, however, the Hubers' rationale that relocation of the units was required to align these units with units 1 to 141 which had previously been built by Mann, the original developer, but not in accordance with their platted location.
Unfortunately, the record does not indicate the magnitude of the size deviation, and we are unable to determine whether damages are appropriate. If the deviation was de minimis, then the trial court was within its discretion in withholding damages. If it was material, that is, if the actual size exceeded substantially the platted size, then the court should have awarded damages for the encroachment. We believe the trial judge erred in failing to determine the materiality of that deviation.
The court did find an award of damages appropriate for the encroachment of the eleventh unit. Palma Sola, however, contends that the trial court was required to order removal of this unit because its construction was an intentional...
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