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Factual and Procedural Background

Tiffany Plaza Condominium Association, Inc. ("Appellant"), a Florida nonprofit corporation organized under chapter 711, Florida Statutes (1974 Supp.), and governed by the Declaration of Condominium entered in July 1975, imposed an assessment on unit owners for construction of a rock revetment on the beachfront common element between the condominium and the Gulf of Mexico's mean high-water line. The appellees, owners of six units, filed suit to prevent the collection of this assessment, relying on article 5.2(b) of the declaration, which restricts alteration or improvement of common elements without unanimous consent or relief from payment for dissenting owners. The trial court ruled in favor of the appellees, holding that objecting unit owners could be exempted from the assessment costs. The appellant appealed this decision.

Legal Issues Presented

  1. Whether article 5.2(b) of the declaration of condominium exempts dissenting unit owners from paying assessments for alterations or improvements to common elements when such alterations or improvements are reasonably necessary for maintenance, repair, or replacement of those common elements.
  2. Whether the association has the authority to assess all unit owners for costs related to construction of a rock revetment as part of maintaining or improving the common elements under the declaration, bylaws, and applicable Florida statutes.

Arguments of the Parties

Appellant's Arguments

  • The rock revetment constitutes maintenance, repair, and replacement of a common element rather than an alteration or improvement as contemplated by article 5.2(b) of the declaration.
  • The association is responsible for maintenance and repair of common elements under the declaration, bylaws, and statutes, and thus may assess all unit owners for related costs.

Appellees' Arguments

  • Article 5.2(b) prohibits any alteration or improvement of common elements without unanimous consent or relief from initial costs for dissenting owners.
  • They sought exemption from payment of the assessment based on this provision, arguing the rock revetment was an alteration or improvement requiring their consent or exemption from costs.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Trafalgar Towers Association # 2, Inc. v. Zimet, 314 So.2d 595 (Fla. 4th DCA 1975) Maintenance duties of condominium associations include actions reasonably necessary for upkeep, such as hiring a resident manager and purchasing a unit for that purpose. The court found this case analogous and approved its reasoning that maintenance-related expenditures fall within the association’s responsibility and can be assessed to all unit owners.
Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971) Material alterations of common elements require consent of the condominium management and owners; unauthorized changes affecting function, use, or appearance are prohibited. The court cited this precedent to distinguish between prohibited material alterations and permissible maintenance, emphasizing that the rock revetment assessment was for maintenance rather than unauthorized alteration.

Court's Reasoning and Analysis

The court analyzed the declaration of condominium, bylaws, and Florida statutes (chapters 711 and 718) collectively, focusing on the definitions and responsibilities regarding common elements and expenses. It interpreted article 5.2(b) as not intended to exempt dissenting unit owners from assessments for alterations or improvements that are reasonably necessary for maintenance, repair, or replacement of common elements. The court emphasized that if the association, in good business judgment, determines such improvements are necessary or beneficial to maintain the common elements, all unit owners must share the cost proportionally.

The court rejected the trial court’s interpretation that objecting owners should be relieved from initial costs for maintenance-related improvements. It clarified that the association’s authority to assess owners for maintenance and repair costs extends to improvements like the rock revetment if deemed necessary. The court noted that the question of whether the revetment was necessary or would effectively protect the beachfront was not decided, as the trial court did not reach this due to its interpretation of article 5.2(b). The court suggested that fact-finding on this issue may be required on remand.

The court also relied on precedent from Trafalgar Towers and Sterling Village to distinguish permissible maintenance-related expenditures from prohibited material alterations without consent.

Holding and Implications

The court REVERSED the trial court’s judgment and REMANDED the case for further proceedings consistent with its interpretation of the declaration and statutes.

The direct effect is that the condominium association may assess all unit owners for the costs of alterations or improvements to common elements when such actions are reasonably necessary for maintenance, repair, or replacement, even if some owners object. The decision clarifies the scope of article 5.2(b) but does not establish new precedent beyond interpreting the specific declaration and statutes at issue. The necessity and effectiveness of the rock revetment remain factual questions for the trial court to resolve on remand.

TIFFANY PLAZA CONDOMINIUM ASSOCIATION, INC., A FLORIDA NONPROFIT CORPORATION, APPELLANT, v. MR. AND MRS.C.O. SPENCER, JR., MR. AND MRS. RICHARD ETSELL, MR. AND MRS. STANLEY WEINBERG, MR. AND MRS. DEREK HOGG, MR. AND MRS. PETER MILLS, MR. AND MRS. FRED EMPKIE, AND MRS. HILDEGARD V. ARRONETT, APPELLEES.

CAMPBELL, Judge.

Appellant, Tiffany Plaza Condominium Association, Inc., defendant below, is an association organized pursuant to chapter 711, Florida Statutes (1974 Supp.), and the Declaration of Condominium of Tiffany Plaza Condominiums entered into in July 1975. Tiffany Plaza Condominium is a forty-two unit residential condominium located at Longboat Key, Florida. Appellees, plaintiffs below, are the individual owners of six of the residential units in the condominium. Their action in the trial court was to prevent the collection of an assessment imposed upon them by the association for construction of a rock revetment on the sand and beach between the condominium and the mean high-water line of the Gulf of Mexico. The beach between the condominium and the mean high-water line is a "common element" of the condominium as defined in the declaration of condominium and chapter 711, Florida Statutes (1974 Supp.), and its successor statute, chapter 718, Florida Statutes (1981).

At an annual meeting on February 7, 1981, a vote regarding construction of the rock revetment was taken by members of the association. Thirty-two voted for and eight voted against. Two members were absent. The board of directors of the association then voted to assess all members for their pro rata share of the cost of constructing the rock revetment. Appellees objected and filed their action seeking an exemption from payment by reason of article 5.2(b) of the declaration of condominium. The association defended on the basis that the rock revetment was not an alteration or improvement of a common element as contemplated by article 5.2(b), but was part of the maintenance, repair and replacement of a common element which the association had responsibility for under several provisions of the declaration, bylaws and statutes.

The trial court's final order found for appellees, holding that article 5.2(b) of the declaration of condominium "prohibits any alteration or improvement of the common elements for any reason, including but not limited to the maintenance of the common elements, unless those unit owners who do not consent to the alteration or improvement are relieved from the initial cost thereof." We reverse.

Both parties urge the applicability of certain sections of chapter 718, Florida Statutes (1981). They argue and we agree that there is no essential difference between the relevant sections of chapter 718, Florida Statutes (1981), and chapter 711, Florida Statutes (1974 Supp.), in effect at the time of the adoption of the declaration of condominium. The relevant parts of the declaration, bylaws and statutes are as follows:

Declaration of Condominium 2.6 Common expenses include

(a) Expenses of administration; expenses of maintenance, operation, repair or replacement of the common elements, and of the portions of apartments to be maintained by the Association.

(b) Expenses declared common expenses by provisions of this Declaration or the Bylaws.

(c) Any valid charge against the condominium as a whole.

. . . .

3.6 Common Elements: The common elements include the land and all other parts of the condominium not within the individual apartments. All common elements shall be available for use by all apartment owners without discrimination. Such use shall be without charge except where specifically authorized by this Declaration.

. . . .

4.5 Liability for Common Expenses or Limited Common Expenses: Each apartment owner shall be liable for a proportional share of the common expenses or limited common expenses, such share being the same as the undivided share in the common elements which is appurtenant to his apartment.

5. Maintenance, Alteration and Improvements: Responsibility for the maintenance of the condominium property and restrictions upon the alteration and improvement thereof, shall be as follows: . . .

. . . .

5.2 Limited Common Elements and Common Elements:

(a) By the Association: The maintenance and operation of the limited common elements and the common elements shall be the responsibility and expense of the Association.

(b) Alteration and Improvement: After the completion of the improvements included in the limited common elements and the common elements which are contemplated by this Declaration, there shall be no alteration nor further improvement of the limited common elements and common elements, without prior approval in writing of the record owners of the apartments; provided, however, that any alteration or improvement of the limited common elements or the common elements bearing the approval in writing of the record owners of not less than 75% of the common elements, and which does not interfere with the rights of any owners without their consent, may be done if the owners who do not approve are relieved from the initial cost thereof. The share of any cost not so assessed shall be assessed to the other apartment owners in the shares which their shares in the common elements bear to each other. There shall be no change in the shares and rights of an apartment owner in the common elements which are altered or further improved, whether or not the apartment owner contributes to the cost thereof. Nothing in this section shall contravene the rights as established in Section 3.2 hereof.

6. Assessments: The making and collection of assessments against apartment owners for common expenses shall be pursuant to the Bylaws and subject to the following provisions:

6.1 Share of common expense: Each apartment owner shall be liable for the proportionate share of the common expenses, and shall share in the common surplus, such shares being the same as the undivided share in the common elements appurtenant to the apartments owned by him.

. . . .

9. Reconstruction or Repair after Casualty:

9.1 Determination to Reconstruct or Repair: If any part of the condominium property shall be damaged by casualty, whether or not it shall be reconstructed or repaired shall be determined in the following manner:

(a) Common element and limited common element: If the damaged improvement is a limited common element or common element the damaged property shall be reconstructed or repaired, unless it is determined in the manner elsewhere provided that the condominium shall be terminated.

. . . .

9.5 Assessments: If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction and repair by the Association, or if at any time during reconstruction and repair, or upon completion of reconstruction and repair said proceeds are insufficient, assessments shall be made against the apartment owners in the case of damage to limited common elements and common elements, in sufficient amounts to provide funds for the payment of such costs. Such assessments against apartment owners for damage to apartments shall be in proportion to the cost of reconstruction and repair of their respective apartments. Such assessments on account of damage to limited common elements and common elements shall be in proportion to the owner's share in the common elements.

Bylaws of the Association ARTICLE 4 — POWERS AND DUTIES OF THE BOARD OF DIRECTORS

4.1 Powers and Duties of the Board of Directors. All of the powers and duties of the Association existing under the Condominium Act, the several Declarations of Condominium, Articles of Incorporation and these Bylaws shall be exercised exclusively by the Board of Directors, its agents, contractors or employees, subject only to approval by apartment owners when such is specifically required.

4.2 Assessments. To make and collect assessments against members to defray the costs and expenses of the condominium properties. The Board may allocate or apportion to particular apartment buildings such costs and expenses as may be appropriate; and to make special assessments consistent with such allocation or apportionment.

4.3 Disbursements. To use the proceeds of assessments in the exercise of its powers and duties.

4.4 Maintenance. To maintain, repair, replace and operate the condominium properties.

. . . .

4.6 Reconstruction and Improvements. To reconstruct improvements after casualty and to further improve the condominium properties.

Chapter 718, Florida Statutes (1981) 718.103

(1) "Assessment" means a share of the funds required for the payment of common expenses, which from time to time is assessed against the unit owner.

. . . .

(6) "Common elements" means the portions of the condominium property not included in the units.

(7) "Common expenses" means all expenses and assessments properly incurred by the association for the condominium.

718.111

(6) The association has the power to make and collect assessments and to lease, maintain, repair, and replace the common elements.

718.113 Maintenance; limitation upon improvement. —

(1) Maintenance of the common elements is the responsibility of the association. The declaration may provide that limited common elements shall be maintained by those entitled to use the limited common elements.

(2) There shall be no material alteration or substantial additions to the common elements except in a manner provided in the declaration.

Construing the declaration, bylaws and statutes as a whole, we conclude that article 5.2(b) of the declaration is not intended to relieve an objecting unit owner of the pro rata assessment for the cost of an alteration or improvement when it is reasonably necessary for the maintenance, repair or replacement of a common element. If, in the good business judgment of the association, such alteration or improvement is necessary or beneficial in the maintenance, repair or replacement of the common elements, all unit owners should equally bear the cost as provided in the declaration, bylaws and statutes. The trial court erred when it concluded that objecting owners should be relieved from the initial costs thereof even when the alteration or improvement was for the purpose of maintenance of the common elements.

From the cited provisions of the declaration, it is clear to us that the association could properly assess all unit owners for the replacement or repair of the beachfront common element if it was damaged by erosion or otherwise. Likewise, it seems to us that if, in the good business judgment of the association, alteration or improvement of the beachfront by the addition of a rock revetment would protect the beach from damage and the necessity of subsequent repair or replacement, then that cost also should be borne equally by all unit owners. Our holding should not be construed as finding that the construction of the rock revetment by the association was, in fact, necessary or that it would protect the beachfront from erosion or damage. That issue was not reached by the trial court because of its interpretation of article 5.2(b) of the declaration. The issues were submitted to the trial court on a stipulated statement of facts which set forth that both parties had experts who would testify on both sides of the issue regarding erosion and the necessity for a rock revetment. We feel that it may be necessary for the trial court to hear those witnesses to properly conclude that issue.

In Trafalgar Towers Association # 2, Inc. v. Zimet, 314 So.2d 595 (Fla. 4th DCA 1975), the court found that the hiring of a resident manager and the purchase of a condominium unit to house the resident manager was in furtherance of the association's duty to maintain the common elements of the condominium. This case is analogous to Trafalgar, and we approve the reasoning of our colleagues in the fourth district as applied to this case.

Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971), is also helpful. There the court disapproved of the substitution by two unit owners of glass jalousies for wire screening around the porches or screen enclosures that constituted common elements without the consent of the management representing the other unit owners of the condominium. In doing so, the court held that the substitution was a material alteration prohibited without the consent of the management since it was a change, not merely for maintenance, but one which affected and influenced the function, use and appearance of the common elements.

REVERSED and REMANDED for treatment consistent herewith.

HOBSON, A.C.J., and BOARDMAN, J., concur.

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TIFFANY PLAZA CONDOMINIUM v. SPENCER
(Jul 16, 1982)