Ruling shows pitfalls of associations enacting changes without required votes | Opinion

A recent appellate ruling highlights the perils for condominium associations that enact changes and undertake alterations of their amenities without the required favorable votes of the unit owners.

The decision emphasizes the importance of sound interpretation and application of provisions in association governing documents.

The case initially stems from a filing for mandatory non-binding arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes under the Department of Business and Professional Regulation.

Michelle and Kevin Flint, owners of several units at the Lexington Place condominium in Orlando, objected to the condo association’s elimination of a common element dog park and a court for wallyball (i.e., a sport similar to volleyball played on a racquetball court).

They alleged the association performed these material alterations without a vote and majority approval of the unit owners in violation of its own declaration of condominium.

The Flints also challenged a board-enacted rule that prevented tenants from maintaining pets at the condominium, which they claimed violated the pet restrictions contained in the declaration.

Association pursues case

The couple prevailed in these proceedings on both issues. However, the association chose to escalate the matter by filing a lawsuit in Orange County circuit court based on the same arguments originally presented in arbitration.

The circuit court also ruled in favor of the Flints and affirmed the arbitrator’s decision.

After considering the different provisions in the association’s declaration as well as the arguments of the parties, the court found that because the association’s declaration required approval by a majority vote of the unit owners prior to performing the alterations, the association’s board of directors alone lacked the authority to eliminate the community’s dog park and wallyball court.

The circuit court also found that the newly enacted pet rule via a simple vote of the board of directors was void and unenforceable. The court concluded that the rule violated the pet restrictions in the declaration, which did not distinguish between owners versus tenants or other occupants as to maintaining pets.

Taking exception to the circuit court’s ruling, the association chose to further escalate the case by filing an appeal with Florida’s Fifth District Court of Appeal. In the appellate court’s opinion filed in June, the panel affirmed the trial court’s final judgment affirming the initial decision by the arbitrator which ordered the association to restore the dog park and wallyball court, and to void and not enforce its new pet restriction.

Significantly, the appellate court also granted the Flints’ motion for reasonable attorney’s fees as the prevailing party in the matter, as provided under the state’s condominium laws.

The case was remanded back to the trial court to determine the sum the association now owes, and the panel also authorized the lower court to award any additional amounts it determines necessary to reimburse the Flints for their share of any fees that may be levied by the association to fund its expenses in pursuing the litigation.

Condo association on the hook

In the end, the Lexington Place Condominium Association and its unit owners will now be on the hook for considerable legal expenses as well as the costs of restoring the dog park and wallyball amenities.

As this case illustrates and my fellow firm partner Lindsey Thurswell Lehr wrote in her July 3 column, board members should bear in mind that approving changes and amendments without obtaining the required favorable votes of the unit owners at a properly noticed meeting can expose an association to potentially significant legal and financial liabilities from owners who successfully challenge the board’s invalid actions.

Associations should turn to experienced legal counsel to focus their efforts on analyzing their governing documents, evaluating legal options, and pursuing amendments that would update their governing documents to facilitate their own amendments process as well as future changes and alterations.

Jonathan M. Mofsky is a shareholder with the law firm of Siegfried Rivera who is based at the firm’s Coral Gables office. He is board certified in community association law by The Florida Bar, and is a regular contributor to the firm’s association law blog at www.FloridaHOALawyerBlog.com. The firm also maintains offices in Broward and Palm Beach counties, and its attorneys focus on real estate, construction, community association, insurance, and bankruptcy law. www.SiegfriedRivera.com, JMofsky@SiegfriedRivera.com, 305-442-3334.

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