Fl Condo What Is Considered Material Change to Design of Building
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Material Alterations
When Is Approving Needed?
By Keith F. Backer, Esq. / Published October 2020
The Condominium Act has long required that associations obtain unit owner approval prior to making material alterations to the common elements. If the condominium's declaration does not provide for a procedure to approve of cloth alterations or substantial additions to the common elements, the Condominium Human activity requires that 75 percent of the full voting interests of the association approve the alterations or additions. The statute was amended in 2018 to clarify that the owners' approval must be obtained prior to the commencement of the material alterations or substantial additions.
Florida courts have construed the phrase "material alteration or improver" to mean to 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 bear upon or influence its function, use, or appearance. Courts have interpreted the phrase broadly and take held that simply irresolute the paint color of a community from multiple colors to a unlike unmarried color constitutes a material alteration requiring approval as described in the condominium'southward proclamation or the Condominium Act. A review of the case law suggests that nearly anything brusk of maintaining a condominium's original advent using the same materials may be construed as a textile alteration.
Anyone who has been involved in a condominium's effort to maintain and improve condominium property has faced the question of whether a seemingly pocket-size alter in what was built originally goes beyond maintenance and enters the realm of a material alteration which may require some level of unit of measurement possessor approval. Inappreciably a condominium association exists that has not considered proceeding with a shut call and figured "if someone sues usa, we will seek the owners' approval so…" Fifty-fifty many attorneys who have counseled their clients on such issues have shepherded communities through the process of ratifying a previously made amending by seeking the approval of the unit of measurement owners afterwards the amending has been made. When the legislature amended Department §718.113 to expressly require any approval to be obtained earlier the alteration was fabricated, it left many questioning whether that meant that the owners could no longer ratify a previously made alteration by obtaining the owners' blessing afterward the work was consummate. On July 15, 2020, the Third District Court of Appeal, the appellate court that considers appeals from Miami-Dade and Monroe County circuit courts, answered that question with a resounding "NO!" in a case styled Bailey v. Shelborne Body of water Beach Hotel Condominium Association, Inc. and all but said ratification every bit an available remedy for failing to obtain accelerate approving of an amending is expressionless.
Photo past iStockphoto.com/Feverpitched
In Shelborne, the court held that §718.113, Fla. Stat., of the Condominium Act requires whatever approval of a proposed material alteration to be obtained before the piece of work was complete and rejected the ex postal service facto approval by more than 75 pct of the unit owners. Interestingly, the court was not even interpreting the 2018 amendment to §718.113, which expressly required the blessing in advance, just was interpreting the pre-amendment 2017 version of the statute. The court held that, even without considering the 2018 amendment, unit owner approving of a material alteration subsequently the alteration was complete was not sufficient to satisfy the requirements of the statute. The court left open the question of what the trial court is supposed to do whe n it sends the case back for farther proceedings. Nosotros are left to speculate about whether the trial courtroom is expected to enter an injunction requir ing the alterations to be removed. Since the appellate court held that the trial court should non consider the effort to approve of the alterations after they were made, curt of ordering the demolition of the alterations, it is hard to imagine what remedy is left.
Since returning the property to its pre-alteration state may be impossible in the Shelborne case without risking damage to the building, information technology will be interesting to see how this case works out. One of the lawye rs for the unit owners involved in the Shelborne example has commented publicly that many of the underlying facts were left out of the courtroom's opinion and that, had those f acts been included, the result may not take seemed so harsh. This could be a classic instance of "hard cases make bad law." Stay tuned.
Keith F. Backer, Esq.
Partner, Backer Aboud Poliakoff & Foelster
Keith F. Capitalist, Esq., is a partner of Backer Aboud Poliakoff & Foelster, a law firm serving customs associations in Palm Beach, Broward, and Miami-Dade Counties. The Business firm was founded by Mr. Capitalist, a Florida Bar Board Certified Specialist in Condominium and Planned Development law with more than 30 years of legal experience in Florida. The constabulary firm was created to provide customs associations with the highest quality legal services with a degree of personal attention often difficult to obtain at larger firms. For more information on Backer Aboud Poliakoff and Foelster, call (800) 251-3562, email kbacker@bapflaw.com, or visit www.bapflaw.com.
Source: https://www.fcapgroup.com/flcaj/flcaj-articles/material-alterations/
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