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CONDOMINIUM MATERIAL ALTERATION ISSUES CAN BE COMPLICATED

Those living in a condominium often differ about how the condominium should look. Owners and their Board of Directors often disagree. Because the purchaser of a condominium often buys because of its appearance, Florida's legislature limits substantial changes to the appearance or what is known as material alterations or additions. Material alterations or additions have been defined by Florida courts as those which palpably or perceptibly vary or change the form, shape, elements, or specifications of a building in such a manner as to appreciably affect or influence its function, use or appearance.

Section 718.113 (2) (a) of Fla. Stat. places limits on material alterations or additions. The statute prohibits material alterations or substantial additions to the common elements, except in a manner provided in the declaration of condominium or if the declaration does not specify procedure for approving material alterations, 75% of the total voting interests of the association must approve before the alterations are commenced. Many newer declarations provide authority for the board of directors to approve alterations or to determine the exterior scheme of a building. Most older declarations do not give board's that authority. That does not stop well intentioned boards from making changes anyway. Many of those efforts end up in court, as owners challenge because they do not like the change, the cost or both.

One might think that the definition of a material alteration or addition would be easy to apply. If it looks different, is changed or functions differently, it would seem easy to spot. Courts, and even arbitrators with the Division of Florida Condominiums, Timeshares and Mobile Homes often agree.

A 1971 case ruled that replacing screen enclosure with glass jalousies was a material alteration. The court explained, it not only changed the appearance but also the function and was certainly different from the original installation. In another case, change from wooden shingles to terra-cotta roofing tiles required unit owner approval even though the tiles would last longer, cost less to maintain and protect the roof.

Courts have routinely held that change in color is a material alteration and must be approved in accordance with the statute. Other court and arbitration decisions have ruled that installation of a golf cart path, adding a radio antenna to a building roof, building storage sheds, painting the lower part of carport posts with "caution yellow," and even placing an "Energizer Bunny" wooden statute on the common elements were material alterations that had to be approved in accordance with the statute.

The statute requires approval prior to the alteration or addition. Approval after the alteration has been completed has been struck by the courts with order the alteration be removed.

The statute often places the association's board of directors in a quandary. Maintenance and repair are needed but the original item is either unavailable or of such poor design that a different product would provide superior service and save maintenance expense. In an effort to promote the best interest of the association, boards often veer from maintaining "as is" into the realm of "maintaining it by making it better." Both the courts and the Division often allow those boards to make changes under their duty to maintain and repair the common elements.

One of the earliest cases ruling that a material alteration was not really a material alteration is the case of Tiffany Plaza v. Spencer. In that case, the board exercised its obligation to maintain and repair the common elements by installing a rock revetment on the beach in front of the condominium to protect the condominium from erosion. The court approved the alteration as necessary maintenance, repair or replacement to protect the common elements. A later court relied on Tiffany to approve a vertical seawall extension without a unit owner vote. The rationale advanced for these decisions is where the change is reasonably necessary to maintain and protect the common elements, unit owner approval is not required.

Other applications the rationale that alterations are okay if defined as maintenance or repair can be found in decisions by arbitrators of the Division of Florida Condominiums, Timeshares and Mobile Homes. Changing ceilings is frequently approved. One case, replacing acoustical tile drywall was approved without unit owner vote because the acoustical tile had performed so poorly. In another, plaster coating was flaking off of the ceiling of a parking structure and was replaced by vinyl, which the arbitrator called "durable pre-finished material." The arbitrator ruled it was a material alteration.

It can be difficult to find a clear path in these cases. Replacement of chattahoochee pool deck with pavers was approved by one arbitrator without unit owner vote, because the chattahoochee was cracking and falling apart and the pavers would be more attractive, have a much longer lifespan and be cheaper to maintain. But, in another case, replacement of a chattahoochee walkway surrounding the building was rejected by the arbitrator because it was not approved by a unit owner vote. Perhaps there is a difference in degree between a pool deck change in appearance and that of a walkway surrounding a building, but that distinction may be lost because it is not explained in the decision.

The statute seems clear; court and arbitration decisions not so much. The lack of clarity seems to encourage boards to proceed with alterations when they can argue the alterations are part of their maintenance and repair responsibility. Those cases often end up in court because some unit owners do not like the change and do not want to pay. In attempting to justify the end, judges and arbitrators have blocked the legislature's effort to require all material alterations or additions be approved in accordance with the declaration of condominium or unit owner vote. Those decisions may make sense in isolation, but they do add uncertainty to the bigger picture.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.