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Article Courtesy of The Daily Business Review
By Raychel Lean
Published July 7, 2018
When the board of directors at Fort Lauderdale’s Regency
Tower Association changed the flooring in of the condominium lobby from
Carrara marble to ceramic tile in 2016, they set in motion a court battle
with unit owner Ronald Lenzi.
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He objected, claiming unit owners were required to vote
to approve the renovation work.
It all hinged on a few words.
The Fourth District Court of Appeal ruled against Lenzi on June 20, deciding
language matters when it comes to the condo declaration.
The 2017 complaint filed by Lenzi maintained the board should not have been
able to alter the lobby flooring on its own, since the declaration did not
include a provision outlining the procedure for approving “material”
alterations.
According to Florida Statute 718.113(2)(a), an owner vote requiring at least
75 percent support is required when material alterations or substantial
additions are made.
“There shall be no material alteration or substantial additions to the
common elements or to real property which is association property, except in
a manner provided in the declaration as originally recorded or as amended
under the procedures provided therein,” the statute reads.
The problem was that the language in Regency Tower’s
declaration did not include the words “material” or “substantial” in
reference to alterations. In this case, the language said the board had the
power to make “such alterations or additions.”
Writing for a unanimous panel, Judge Alan Forst concluded
the language of the declaration “provides a manner for the approval of all
alterations, material and otherwise, by board vote. Thus, the board could,
as a matter of law, vote to alter the flooring in the lobby from marble to
tile without the approval of 75 percent of the unit owners.”
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Regency Tower, Fort Lauderdale.
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What might seem like a small detail on its face could have broad
implications for condo owners, since the decision addressed whether a small
board can decide on its own what happens to a building, or whether it
requires approval from owners.
“The appeal is a very good result for our board of directors, who have been
given a very difficult task of governing the condominiums and dealing with
certain issues as condominiums age, such as replacing common elements,” said
Jeffrey Green of Kaye Bender & Rembaum in Pompano Beach, who represents
Regency Tower along with Josef M. Fiala of Vernis & Bowling in North Palm
Beach.
The decision affirmed a ruling by Broward Circuit Judge David A. Haimes. It
cements Regency Tower’s position that their declaration was broad enough to
encompass any alteration to the common elements.
“There’s also the potential that this clears up some confusion in general
contract law that can extend beyond just the condominium realm of
decision-making,” Green said.
Hollywood attorney Louis Arslanian, counsel to Lenzi, is unsettled by the
decision, insisting the power to affect the appearance of a condominium
shouldn’t be taken lightly.
“If you’re going to put that in the hands of a board, it’s just a few people
making that decision for everybody. It really has a significant impact on
people who live in a condominium,” he said.
As far as Arslanian is concerned, the declaration lacked specificity and
should be construed in favor of the many against the power of a few.
One important aspect to consider in disputes like this is the ambiguity of
the document, according to Michael Gelfand of Gelfand & Arpe in West Palm
Beach.
“If there’s no ambiguity, why should there be an interpretation of the
text?” he said.
Plain language is supreme, said Gelfand, who is not involved in the case.
“There are two competing crystal ball analyses. First, that owners will
realize that a material alteration is an alteration, which may be governed
by their covenants, thus avoiding unnecessary disputes and litigation.
Second, there is a concern that owners will latch onto the dicta and we will
have unnecessary claims until there are further appellate decisions
reinforcing the traditional rules and traditional interpretation,” he said.
Attorneys noted the ruling conflicts with a 1971 decision by the Fourth
District Court of Appeal. In Sterling Village v. Breitenbach, a married
couple who owned two units in Sterling Village Condominiums were denied
permission to replace a porch screen with glass jalousie windows. When they
replaced the screens anyway, the condominium sought an injunction to require
removal. At the appellate level, the windows were ruled to be a material and
substantial alteration.
“In Sterling, they defined what an alteration is, and they defined what a
material alteration is. And a material alteration is more than an
alteration,” Arslanian said.
A material alteration or addition was described by the court as something
that would “palpably or perceptively vary or change the form, shape,
elements or specifications of a building from its original design or plan,
or existing condition, in such a manner as to appreciably affect or
influence its function, use, or appearance.”
The appellate court determined if a declaration mentions the word
alteration, it includes material alteration as well.
“By using the lesser word, somehow the board had the power to do the
greater, the material alteration. I think that’s just not correct,”
Arslanian said.
For Green’s clients, the decision comes as welcomed relief.
“Condominium boards often get a bad rep because they’re making decisions on
behalf of, sometimes hundreds or thousands of people, depending upon the
size of the building,” Green said. “And it’s very stressful when you’re
making these kinds of changes because oftentimes you’ll have unit owners who
disagree and they’ll raise these issues.”
Arslanian’s next move will likely be to file a motion for a rehearing en
banc.
“If this decision conflicts with the prior decision of the Fourth District,
I can ask the whole court to rule on it,” he said. “It’s rare that you get
that, but I believe that this case could present that opportunity.”
RULING OF THE FOURTH
DISTRICT COURT OF APPEALS |
