Yardum v. Scalese, 4D00-3097.

• Decision Date: 14 November 2001
• Docket Number: No. 4D00-3097.,4D00-3097.
• Citation: 799 So.2d 382
• Parties: Ara YARDUM, Appellant, v. Andrew SCALESE, an individual; and the Wittington Condominium Apartments, Inc., a Florida not-for-profit corporation, Appellees.
• Court: Florida District Court of Appeals

799 So.2d 382

Ara YARDUM, Appellant, v. Andrew SCALESE, an individual; and the Wittington Condominium Apartments, Inc., a Florida not-for-profit corporation, Appellees.

No. 4D00-3097.

District Court of Appeal of Florida, Fourth District.

November 14, 2001.

David M. Beckerman of David M. Beckerman, P.A., Boca Raton, for appellant.

Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellee Andrew Scalese.

PER CURIAM.

Ara Yardum ("Appellant") sued Andrew Scalese ("Appellee") for trespass, private nuisance, and negligence in connection with renovations to Appellee's condominium unit that Appellant alleges infringed upon the quiet enjoyment of his condominium unit that is located directly below the Appellee's. The trial court granted final summary judgment in favor of the Appellee from which the Appellant now appeals. We reverse and remand.

The Appellant and Appellee were both owner-residents in the Wittington Condominium community. Shortly after moving into the unit directly above Appellant, the Appellee began renovations to replace the bathroom tub with a Roman Tub Jacuzzi. After construction began, the homeowner's association ordered the Appellee to halt construction until proper approval was obtained from the board. The Appellee submitted a written request for permission accompanied by a county building permit, a copy of the plumber's license and liability insurance information covering the repairs. Subsequently, the board granted written permission stating in part, "[w]e are pleased to inform you that since you provided the Association with the necessary documents the Board of Governors hereby grants you permission to replace the section of the main waste line which is common property in your bathroom." After receipt of the letter conveying the board's consent, the Appellee sent a second letter to the board requesting clarification from the association regarding the extent of their permission to commence work. No response from the board was forthcoming.

Construction recommenced and consisted of extensive drilling into the concrete slab that comprised both the floor of Appellee's unit and the ceiling of the Appellant's unit. The Appellee's contractor drilled several enlarging holes in the concrete through which he fitted pipes joining the new tub to the main vent stack. These pipes extended through the slab into the Appellant's apartment into the area above the drop ceiling which concealed them from view.

After the pipes were installed, the Appellant sued Appellee based upon their intrusion into the Appellee's apartment. In defense, the Appellee argues that the declaration of condominium provides an easement in the space through which he may run pipes in order to maintain his apartment. The Appellee further urges that the permission granted by the board authorized him to drill through the floor and alter the existing pipe system.

The Appellant argues that genuine issues of material...