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|MATERIAL ALTERATION OF THE COMMON ELEMENTS: OWNERS DON'T ALWAYS HAVE A RIGHT OF APPROVAL|
|Section 718.112(2) of the Condominium Act provides as follows: "Except as otherwise provided in this Section, there shall be no material alteration or substantial addition to the common elements ...except in the manner provided in the Declaration." Most Declarations specify that a vote of the unit owners is necessary to approve such a change, and the number of votes needed, typically from 50% to 75 % of the total voting interests, is also usually specified. If the Declaration does not specify the procedure for approval, the Condominium Act provides that 75% of the total voting interests must approve the alteration or addition. Examples of a material change to the common elements that have required a vote of the owners are changing the color of the building, replacing an asphalt tennis court with a clay court and irrigation system, and remodeling of the clubhouse.
However, not every material alteration or substantial addition must be approved by a vote of the owners. An exception has been recognized in the case law when the change is shown to be necessary to preserve, protect or repair the common elements. Judges and Arbitrators in the Division of Condominiums have concluded that the duty of the Board of Directors to preserve, protect and repair the common elements is of paramount importance to the owner's right of approval.
One of my recent cases (in which I represented the Association) illustrates this situation. The Board of Directors concluded after consulting their experts that it was necessary to replace all the wood siding on the south side of the building. Water intrusion had been a problem for many years. Before the work was commenced, the wood studs on which the window frames were attached were inspected on some of the windows and found to be rotten. The Board then learned that since the windows had to be "unseated" during the work, the replacement windows had to meet the requirements of the current building code. Without a vote of the owners, the Board decided to use hurricane compliant windows with white frames even though the color of the old window frames was black. A unit owner challenged the decision of the Board to change the color without a vote of the owners, arguing that it was a material alteration. The Association contended that the white frames were more energy efficient and the white paint was more durable than black. In addition, white framed windows were available immediately, while black frames were not obtainable for several weeks, so to use black windows would have delayed the project further. The Arbitrator ruled that the Board was free to install white window frames without a vote of the owners, even though the change is considered a material alteration. He further ruled that once a change to the common element windows became necessary, the Board was not required to use the same product or material. It is not unreasonable to choose newer, improved materials when replacing common elements and this sort of "upgrade" does not trigger the statutory provision requiring a vote of the owners. An association does not have to replace a material that has performed poorly with the identical material, when it has an alternative that is comparable in function. Obtaining the approval of the owners was unnecessary. The unit owner was denied all the relief she requested and was ordered to pay the Association's legal fees.
Other examples of a material alteration to common elements that did not require approval of the owners are the construction of a seawall fronting the common elements to protect them, and the strategic placement of large landscaping stones to prevent erosion.
As with any other type of legal issue, it is strongly advised that you consult with your attorney on the particular facts and circumstances of your own situation.
And Good luck!
Michael E. Rehr, Esq.
9500 So. Dadeland Blvd
Miami, FL 33156
Telephone (305) 670-8993
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