STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION JOHN W. RODANHISLER and DIANE RODANHISLER, Petitioners, v.
Case No. 2013-01-6757
SAND PEBBLE POINTE I CONDOMINIUM ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER Procedural History On April 15, 2013, John W. Rodanhisler and Diane Rodanhisler (Petitioners) filed a petition for mandatory non-binding arbitration naming Sand Pebble Pointe I Condominium Assoction, Inc,. (the Association) as the respondent. The petition alleges that that the Association has improperly denied Petitioners permission to remove a concrete masonry wall located in their unit. On May 24, 2013, the Association filed an answer contending, due to the structural nature of the wall, it is the Association’s obligation to maintain the wall and Petitioners may not remove it. `
A case management conference was held in this matter on June 17, 2013,
during which the parties agreed that the arbitrator may rely upon engineering opinions stated in Exhibit A of the Petition and Exhibit B of the Answer. On July 12, 2013, the parties filed legal arguments. On August 5, 2013, the Association filed a supplemental response providing the specifications of modifications made to unit 315. Because there
1
are no disputed issues of material fact, it is appropriate to summarily rule in this matter. Fla. Admin. Code R. 61B-45.030. Findings of Fact 1.
Petitioners own unit number 332 located at the Sand Pebble Point I, A
Condominium (the Condominium). 2.
Sand Pebble Pointe I Condominium, Association, Inc. is the corporate entity
responsible for the operation of the Condominium. 3.
On March 16, 2012, Petitioners met with structural engineer, Eric P. Olsen,
P.E., and William Ritchie, the Association’s President, at Petitioners’ unit to discuss the removal of a concrete masonry wall (the wall). 4.
William Ritchie informed Petitioners that they needed to submit a written
request to the Association and informally advised them that the request would most likely be approved. After reviewing the Association’s governing documents, Mr. Ritchie informed Petitioners on March 17, 2012, that Petitioners could not remove the wall because it is a common element wall. 5.
The wall lies between the interior of the unit and unit’s balcony. It originally
contained a sliding glass door which has been removed. The balcony is a lanai style balcony consisting of two concrete sidewalls extending from floor to the ceiling with the floor slab of the above balcony forming the ceiling. 6.
When the Condominium building was originally built, the wall served as an
outside wall. However, hurricane glass sliders have been installed at the outside slab edge of the balcony enclosing the balcony.
2
7.
By letter dated March 26, 2012, addressed to Petitioners, as to whether the
wall could be safely removed, Mr. Olsen opined: On March 16, 2012, I visited your residence to evaluate the existing concrete masonry (CMU) wall that divides your living area from your enclosed lanai. The existing CMU wall has an 8’-0” wide by 6’4” high opening that originally accommodated a sliding glass door. Upon examination, it is clear that the CMU wall is a non-load bearing wall and can be safely removed from the south party wall, cut away from the return CMU wall at the north end of the wall, and removed from the underside of the structural stab above (at the ceiling) I certify that the removal of the CMU wall in question will not impair the ability of the local, nor overall structure to safely support the design gravity loads. 8.
By letter dated March 28, 2012, addressed to the Association, Oliver Tuzark,
P.E., opined that the wall is designed to be a shear wall and is intended to transmit horizontal loading through the wall into the main structural assembly.
Mr. Tuzark
advised that the wall should not be removed. 9.
Mr. Truzak’s evaluation was based upon a review of the building’s plans. It
does not appear that he personally inspected the unit. 10.
Mr. Olsen issued a detailed engineering report dated July 11, 2012 (the
Olsen) report regarding removal of the wall. Mr. Olsen found the wall, as originally designed, does not provide support for the floors above the unit. Mr. Olsen also found that the wall was a shear wall stating: Assuming that all walls of the 3rd floor are contributing to the shear resistance of the building at that level, the Subject Wall segments, 3’-4” (2’-8” + 8”) on one side and 2’-6” on the other side of the SGD opening, are contributing 0.1% and 0.18% of the total shear resistance respectively. That equates to 1/357th of the total shear being resisted by the combined segments of the Subject Wall.1 Any competent structural engineer with knowledge of this minor shear resistance would not even consider these short wall segments in their shear calculations. 1
The walls that are oriented in the north-south (long) direction of the building subject to in-plane shear and moment forces generated from wind pressures acting normal to the north and south (short side) faces of the building.
3
11.
Mr. Olson concluded: Based on the results of this evaluation, I hereby certify that the removal of the CMU wall in question will not impair the ability of the local structural elements, nor the overall structure to safely resist wind induced lateral forces and support the design gravity loads.
12.
At the request of Petitioners, Brian F. Kean, P.E., issued a report dated
September 1, 2012, regarding the feasibility of removing the wall. The report states that he visited the unit on August 30, 2012. Mr. Kean states that the wall is non-load bearing wall and that he agrees with Mr. Olsen’s evaluation. 13.
Unit 315, located at the Condominium, has had the sliding glass door leading
onto the unit’s balcony removed.
The dimensions of this wall as compared to its
originally built dimensions are as follows: Wall, when facing rear of Present unit Left Side 21 inches wide
As Originally Built
Right Side
24 inches wide
28 inches wide
Height of opening
8 feet high
7 feet high
14.
In 1998, Article 6, Section E,
31 inches wide
of the Declaration of Condominium, San
Pebble, I (the Declaration) was amended to read as follows: The porch or balcony which serves an individual unit is included within the unit. The unit owner shall be responsible for all maintenance of the interior surfaces and floor covering of the porch or balcony. Maintenance or replacement of all screens and glass shall be the unit owner’s responsibility. Every unit porch or balcony shall keep water off the porch or balcony by installing vinyl windows. Glass, windows or hurricane shutters, which are installed, maintained, repaired and replaced at the expense of the unit owner. Unit owner’s [sic] shall be responsible for any damage to other units or the common elements
4
from their failure to properly use vinyl windows, glass windows or hurricane shutters. 15.
Article 3, section C, of the Declaration defines “common elements” as: The portions of the condominium property not included in the individual units. The common elements are more particularly described, to include definitions of easements through units, at §718.108, Florida Statutes, as amended, to the date of this declaration.
16.
Article 7, section A, of the Declaration, provides as follows: A. Common Elements. The common elements include all the land and buildings submitted to the condominium form of ownership pursuant to this declaration except: (1) The condominium units. (2) Windows, doors, sliding glass doors and screens which serve a single unit. The common elements are more particularly described, to include definitions of easements through units, at §718.108. Florida Statutes, as amended to the date of this declaration. The common elements include bearing walls located within a unit from their centers to their undecorated finished surfaces.
17.
Article 9 section A(1) of the Declaration provides as follows: 9. MAINTENANCE, ALTERATION AND IMPROVEMENTS Responsibility for the maintenance of condominium property, including restriction upon alterations and improvements thereof is as follows: A. Units. By the Association: The Association shall maintain, repair and replace at the Association’s expense: (1) All portions of the unit (except interior surfaces) contributing to the support of the unit, the outside walls of the unit building and all fixtures on the exterior thereof, boundary walls of units, floor and ceiling joists and slabs, load-bearing columns and load-bearing walls. The association shall not be obligated to maintain, repair and replace at Association expense, the interior surfaces of a unit, glass or screens.
18.
Article 9, section B of the Declaration provides as follows: B. Alteration and Improvement
5
Except as reserved to the Developer herein, neither a unit owner nor the Association shall alter any portion of a unit or the condominium building which is to be maintained by the Association or remove or replace any portion thereof or make any additions thereto, or do anything which would jeopardize the safety or soundness of the condominium building or impair any easement without first obtaining approval in writing of the Board of Directors of the Association. 19.
Article 9, section C(2) of the Declaration provides as follows: Except as reserved to the Developer, after the completion the improvements included in the common elements, there shall be no alteration nor further improvement of the common elements without prior approval by the record owners of a majority of the units. Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant
section 718.1255, Florida Statutes. Petitioners seek an order declaring that the Declaration does not prohibit them from removing the wall, and that the wall may be removed without Association approval. The Association contends that the wall is part of the common elements, and therefore, a vote of the unit owners is required for approval to remove it. All the parties’ experts agree that the wall is a non-load bearing wall, in that it does not support the building structure above it. They also agree that the wall is a shear wall in that it provides support against lateral forces such as wind and sway. Article 9, section A(1), of the Declaration provides, in pertinent part, that the Association is responsible for maintenance, repair and replacement of all portions of the unit (except interior surfaces) contributing to the support of the unit, the outside walls of the unit building and all fixtures on the exterior thereof.
The wall is a shear wall that
provides support for the unit and the building. Furthermore, when the Declaration was adopted and the Condominium building was originally built, the balconies were not
6
enclosed and the wall was an outside wall.
Accordingly, the wall is the Association’s
responsibility. Article 9. section B, of the Declaration prohibits unit owners from altering any portion of a unit or the condominium building which is to be maintained by the Association without first obtaining the written approval of the Association’s Board of Directors.
Therefore, in order to modify the wall, Petitioners must at least have the
approval of the Association’s Board of Directors. The Association argues that Petitioners, in addition to Board approval, need the approval of unit owners because the wall is a common element. Article 9, section C(2) of the Declaration prohibits alteration or further improvement of the common elements without prior approval by the record owners of a majority of the units. Article 3, section C, and Article 7, section A2, of the Declaration describe the common elements. Both provisions incorporate section 718.108. Florida Statutes, as amended to the date of the declaration.3 Section 718.108(c), Florida Statutes, provides that “common elements” includes within its meaning an easement of support in every unit which contributes to the support of the building.
The wall Petitioners seek to
remove provides support against lateral forces. Therefore, it is a common element. Since it is a common element, it may not be altered without the prior approval by a majority of the record owners the units. Petitioners raise the claim of selective enforcement relying upon modifications made to Unit 315, located at the Condominium. Selective enforcement is established if 2
The provision specifically excludes sliding glass doors that serve a single unit from the common elements. Therefore, the sliding glass door that was removed was not part of the common elements and modification of the door does not require unit owner approval. Furthermore, it appears that the unit owner is responsible for maintenance of the sliding glass door, and, therefore, approval of the board of directors is not necessary to modify it. 3 The statute has remained unchanged since its adoption in 1976.
7
the facts show that the association is enforcing a restriction against one unit owner while knowingly allowing other unit owners to violate the same restriction.
An
association may not enforce restrictions in a selective or arbitrary manner. White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979). Selective enforcement will not be found absent a showing that the subject violation was comparable to the type of violation which the association has failed to enforce. Scarfone v. Culverhouse, 443 So. 2d 122 (Fla. 2d DCA 1983); Schmidt v. Sherrill, 442 So. 2d 963 (Fla. 4th DCA 1983). Unit 315 has had the sliding glass door leading onto the unit’s balcony removed in order to accommodate an 8 foot high sliding glass door. However, the entire wall has not been removed. This substantially differs from Petitioners’ intended modification. Moreover, until the Association was informed of the modification to unit 315 by Petitioners, there is no indication that the Association was aware of the modifications or approved them. This does not support a finding that the Association should be barred from objecting to Petitioners’ modification. Finally, it may be argued that removal of the wall will have a de minimis effect on the building’s structural integrity. In order to determine whether the Association’s actions are unreasonable, a petitioner must show that the Association’s actions were arbitrary or irrational. Holiday Apartments Condo. Ass'n., Inc., Arb. Case 02-4660, Final Order (September 11, 2002). It is not arbitrary or irrational for the Association to object to the removal or modification of the wall. If the Association permits Petitioners’ requested modification, then, arguably, it would have to permit similar modification to every unit resulting in a cumulative deterioration in the building’s shear wall system. Based upon the foregoing, it is ORDERED:
8
Petitioners’ requested relief is denied. DONE AND ORDERED this 16th day of September, 2013, at Tallahassee, Leon County, Florida. _________________________________ James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Telephone: (850) 414-6867 Facsimile: (850) 487-0870 Trial de novo and Attorney’s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, Florida Statutes. As provided by section 718.1255, Florida Statutes., the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney’s fees. Any such request must be filed in accordance with Rule 61B-45.048, Florida Administrative Cod. Certificate of Service I hereby certify that a true and correct copy of the foregoing Summary Final Order has been sent by U.S. Mail to the following persons on this 16th day of September 2013: Robert M. Burrell, Esq. UAW Legal Services Plans 2454 McMullen Booth Road Bldg. B – Suite 425 Clearwater, FL 33759 Fax: (727) 669-0978 Attorney for Petitioners
Daniel J. Greenberg, Esq. JOSEPH R. CIANFRONE, P.A. 1964 Bayshore Boulevard, Suite A Dunedin, FL 34698 Fax: (727) 733-0042 Attorneys for Respondent
_________________________________ James W. Earl, Arbitrator
9
