MATERIAL ALTERATIONS – LOOK BEFORE YOU LEAP

Today we discuss an often litigated topic, “material alterations.”  As many of you know, a board of directors in a condominium can’t make “material” changes to the common areas unless a vote of the community is obtained.  Usually, a 75% vote in favor of the change is required.  You may be surprised to learn though that the Board can circumvent that 75% requirement in certain circumstances if the change can be classified as a “repair.”

Here are some decisions by Florida arbitrators who determined whether or not a change was “material” or not and whether or not a vote of the community was required.

Capistrano Condominium vs. Jochim where the board, in furtherance of their duty to protect the common elements determines that landscaping stones are needed to address erosion problems, the board’s statutory duty to preserve the common elements overrides any requirement requiring unit owner consent.

Cundiff vs. Flamingo K Apartments the installation and expansion of a sprinkler system did not require unit owner approval where the Board was able to show that the area in question had a system in place that was inoperable and the vegetation was dying.

Barnhim vs. Vista Harbor Association, Inc  unit owner approval not required for installation of a chain linked fence where the fence provided security from activities occurring in an adjacent public parking lot and it was shown to be reasonable and necessary for the security of the association.

Krietman vs. The Decoplage Condominium  replacement of common element acoustical ceiling tiles with drywall,   and replacement of ceramic floor tiles with marble,  was determined to be necessary maintenance and did not require a unit owner approval.  The Board was able to show that drywall is more durable and cost effective.   The association should not be required to replace material that has done poorly with the identical material which may also be expected to perform poorly when it has an alternative that has a comparable function.

Lamar vs. Peppertree Village the board determined to replace deteriorated wood siding with stucco siding, and the arbitrator held that no vote of the owners was required. The changes are primarily maintenance related and wood siding is particularly inappropriate in South Florida where it attracts insects and is vulnerable to frequent tropical rains.

Midman vs. Sun Valley East Condominium Association the repair of a pool deck which was accomplished by a removal of an existing deteriorated Chattahoochee deck and replaced with paver brick was held to be a necessary repair and not a material alteration where the paver bricks required less maintenance and had a service life of two or three times that of Chattahoochee decking.

Baran vs. Romont South Condominium K the association’s decision to allow a unit owner to plant a garden behind his unit was not a material alteration of the common elements requiring a vote of the unit owners and the association may make day to day decisions on landscaping questions without seeking unit owner approval.

Ivanovski v Golden Horn: no unit owner vote needed for association to change from carpeting to tile in a room adjacent to the pool, because tile was superior.  And….the association can change the style of lighting to provide for more energy efficient lighting without a vote of the unit owners.

However, when it came to changing the color of the building, both inside and out, here is what the order actually said…..

Accordingly, it is ORDERED that the association shall have 60 days in which to prepare and obtain the proper unit owner approval for the changes in lobby (other than the flooring replacement) and the color in the hallway wall paint and the exterior paint color scheme, failing which the association shall have 90 days thereafter to return the hallway walls and building exterior to their origina, color and restore the lobby walls to their original form and/or condition.

That’s right.  Failure to obtain a vote for a material alteration, when required, may result in the actual un-doing of the change.  If a Board spends money to paint a building a different color, without a vote, the arbitrator can make the board paint it back to the original color.  Talk about the potential for wasting money!  All boards should be careful and get the advice of counsel BEFORE making the change.

In an HOA, the law is a little different.  The statute says:

All common areas and recreational facilities serving any homeowners’ association shall be available to parcel owners in the homeowners’ association served thereby and their invited guests for the use intended for such common areas and recreational facilities.

In other words…..don’t turn the tennis court into a parking lot.

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