Pepe v. Whispering Sands Condominium Ass'n, Inc.

• Decision Date: 09 November 1977
• Docket Number: No. 76-1982,76-1982
• Citation: 351 So.2d 755
• Parties: Frank W. PEPE, Appellant, v. WHISPERING SANDS CONDOMINIUM ASSOCIATION, INC., Appellee.
• Court: Florida District Court of Appeals

Page 755

351 So.2d 755

Frank W. PEPE, Appellant, v. WHISPERING SANDS CONDOMINIUM ASSOCIATION, INC., Appellee.

No. 76-1982.

District Court of Appeal of Florida, Second District.

Nov. 9, 1977.

As Modified On Denial of Rehearing Nov. 29, 1977.

Henry P. Trawick, Jr., of Trawick, Griffis & Ferrell, P.A., Sarasota, for appellant.

Patrick J. Murphy of Crabtree, Butler, Syprett & Meshad, P.A., Sarasota, for appellee.

McNULTY, JOSEPH P. (Ret.), Associate Judge.

We are asked herein to decide whether a condominium association has the right to consolidate under one budget the budgets of separate condominium sections within a multiple section complex. Under the facts herein we think not and reverse the trial court's ruling to the contrary.

Whispering Sands Condominium Village is a complex comprising seven adjacent condominium sections. Certain easements, facilities and services are mutually enjoyed by and are the responsibility of all sections, and the units respectively therein, equally. But each section is also a separate condominium unto itself and has its own common elements which are the responsibility of and are enjoyed only by the unit owners of that section. All sections were created under identical declarations of condominium (except as to the section number) and Article I of each declaration provides: (Here, we quote from appellant Pepe's declaration.)

" . . . Developer does hereby declare the property . . . to be known as: WHISPERING SANDS CONDOMINIUM VILLAGE, Section Six (Pepe's section), hereinafter referred to as the 'CONDOMINIUM' . . . .

"It is contemplated that there may be additional Sections . . . which said Sections may be operated and managed in conjunction with this Condominium through that certain non-profit corporation known as: WHISPERING SANDS CONDOMINIUM ASSOCIATION, INC., and hereinafter referred to as the 'ASSOCIATION.' The creation of any such further Sections will not merge the common elements of this Condominium with the common elements of such additional Section. Each such Section will be and remain a separate Condominium under the law of Florida, but may be operated and managed, as aforesaid, through the said Association in conjunction with the other Sections of WHISPERING SANDS CONDOMINIUM VILLAGE collectively, so that there may be common control, unity of policy, procedure, management and purpose, among all Sections. . . . All grantees . . . and their successors and assigns . . . do hereby agree to the foregoing." (Italics supplied.)

Article XI of each declaration provides for the developer to manage the condominium for a certain period of time and then to turn the management over to the unit owner's Association (now the appellee herein) provided for and referred to in Article I first above-quoted. Article XI further provides:

"At such time as Developer turns over the management of the Association and Condominium affairs to the Unit owners, the Unit owners shall themselves through the Association determine the monthly maintenance charges and assessments to thereafter be assessed and collected and provide for themselves through the Association the items set forth above as well as all other services, benefits or improvements thereafter determined necessary by the Association. . . ." (Italics supplied.)

It is undisputed that as to the entire complex, the Association is responsible for the budgeting and management expenses common to the whole complex; but as to the budgets of each section, appellant contends, and we agree, that under the quoted provisions of the declarations the unit owners of each section control as to the elements common only to that section and that such budgets are merely to be administered and managed by the Association.

On March 19, 1974, the Association adopted a resolution that made the following findings of fact: That the declarations of condominium of all sections reveal a clear intent to treat the condominium village as though it were one condominium with a single uniform policy; that the declarations required the Association to maintain all buildings and grounds for the benefit of all unit owners; that the value of all units would seriously decline if the common elements of any section were permitted to deteriorate; that there is no practical way to measure the exact value to each condominium parcel of the maintenance of...