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Can the condo board change common areas?

STUART, Fla. – Oct. 26, 2016 – Question: Our bylaws were amended to allow the board to approve material alterations to the common areas that cost $10,000 or less by a majority vote of the board. The amendment was properly adopted by the unit owners. Is this a lawful amendment? Seems as though the board could authorize a number of “material alterations” that cost under $10,000. – G.T.R., St. Lucie
Answer: The short answer to your question is “yes, the amendment is lawful.” Per your scenario, the amendment was duly passed by the correct percentage of unit owners. Section 718.113(2)(a) of Florida’s Condominium Act allows the unit owners to delegate to the board to make such decisions, which, in your community’s case, the unit owners placed a dollar limitation on the board. Section 718.113(2)(a) provides in pertinent part, “[e]xcept as otherwise provided in this section, 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.
In your community’s case, the underlined portion of the statute is what authorizes the amendment you reference.
Now, it’s also important to keep in mind that every change or alteration is not always considered to be “material.” Florida courts have set a standard on what is a “material alteration.” Specifically, a change to the condominium property will be considered material or substantial if it “palpably or perceptively varies or changes the form, shape, elements or specifications” of the common elements “in such a manner as to appreciably effect or influence its function, use or appearance.” Sterling Village Condominium Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971).
The most common example of a material alteration is the change of the exterior color of a condominium building. In some instances, the failure to maintain an existing component of a building, such as a building-wide water filtration system, can be a material alteration. Fortunately, in your case, the severity of the changes is limited by the amount your board can spend.
Question: Recently and historically, our condo association has repaired our patio balustrades and railings. However, a more recent request by an owner was denied by the property management company due to the Association’s attorney letter stating the responsibility to maintain and repair patio balustrades and railings lies with the owners. The owner in question lives on the second floor and is handicapped. – M.L., Stuart
Answer: This is a very complex question. First, I am going to assume that the patio balustrades and railings are limited common elements. To answer this question, we must again refer to 718.113 (a popular section this week!). Section 718.113(1) provides in pertinent part “[m]aintenance of the common elements is the responsibility of the association. The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements.”
So, the answer to your question is entirely dependent on whom your declaration of condominium places the burden to pay for the patio balustrades and railings – the unit owners or the association. Now, it is possible that your association assumed that the association was responsible for the maintenance as a common expense, when your documents provided otherwise, and this was the first time legal counsel was requested to opine on the issue.
I often tell my clients simply because you have been doing something the wrong way for a long time does not mean you can continue to do so once you know you are doing it the wrong way. I recommend you make a request for a copy of the opinion letter from the Association’s counsel in an official records request and then your friend should retain legal counsel competent in the area of community association law.
With regard to your friend being handicapped, in my opinion that does change the analysis. Although a person suffering from a disability might be entitled to certain accommodations, such as the waiver of certain types of restrictions, that’s beyond the scope of this question. I do not think in this scenario it will alter the outcome.
Steven R. Braten Esq., is Managing Partner, Palm Beach of the Law firm Goede, Adamczyk, DeBoest & Cross. Visit www.GADClaw.com or ask questions about your issues for future columns, send your inquiry to: question@GADClaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
© 2016 Journal Media Group, Steven R. Braten
 
Source: Florida Realtors Feed

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