Unit Owners Letters

Several unit owners have written to Jim Tatora and Vito Senese regarding the situation:

Sent: December 10th, 2021 11:44 AM

Carol Stuart:

Good morning Vito.

Can you please pass this message to the board as well since they might have an interest.

I was informed the other day by an owner that our theater/media room has been demolished and that the Board has decided to make it a mixed media room and renovate the entire space, including drapery, flooring, and replace the seating. This immediately struck me as odd because the BOD agenda that was posted announcing this matter did not contain this information, it merely read “media room updates and/or update of media room” which did not provide enough information to the Association that a majority of the association’s vote would have been required.

As a licensed CAM, you should know, and as the Board should know by now that such revision required an Association vote not only the change, but also the cost.

Section 718.113(2), Florida Statutes, states that there shall be no material alteration or substantial additions to the Common Elements or to real property which is association property except in the manner provided by the declaration. If the declaration is silent, the statute states that such changes shall be approved by 75% of the total voting interests of the association. Therefore, while the default position in the statute is that material alterations or substantial additions to the Common Elements or association property must be approved by a 75% vote of the membership, the declaration can provide for other levels of approval.
With regard to what changes are considered material alterations or substantial additions to the Common Elements or association property, the seminal case in Florida is Sterling Village Condominium Association, Inc. v. Breitenbach, which was decided by the Fourth District Court of Appeals in 1971. In Sterling Village, the Court stated that a change was a material alteration when the change “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 affect or influence its function, use, or appearance.” This is still the test used today.

Our condo documents state:

This section goes on to state that a vote of the Association is required when the cost shall exceed 3% of the budget. Since no information was provided to the Association about this expense, I can only assume that it falls under the 3% criteria.

In addition to the requirement of an Association vote, I would like to think that the Board has considered that the heavy curtains in the media room are specifically designed to dampen the noise emitted from that room, as well as the carpeting on the floor, so any changes that would increase the noise level and disturb neighboring units would cause a nuisance and as such these owners would have cause for a legal lawsuit against the Association.

Last year the Board removed the business center which also required the Association vote. I made no complaint because I did not use the business center. The media room however is another story since I have used it several times in the past. Additionally, I have been asked to help spearhead a complaint against the association with regards to this material change and I am honored to assist in the charge.

I would therefore recommend to the Board that they salvage what is possible including furniture, wall hangings, curtains and what ever else was in that room so that it can be returned to the way it was. Otherwise the Association will face an unnecessary expense to have it replaced.

Please tell the Board to act accordingly.

thanks bunches

Carol Stuart

Date: December 13th, 2021

Carol Stuart: Unit #

It is interesting that our current Association attorney would have differing opinions on the matter from our original attorney Michael Gelfand when my board was considering renovating the media room.

While I am aware that our governing documents allow the Board to make “material changes” that fall below the threshold of 3% of the annual budget ($54,000.00), I do not know what exactly the Board is doing, no minutes have been shared, no emails to the community about this project, but more importantly, its cost. If however it is to be brought back to its original design, and “improved upon” as James has stated below, it has been estimated to cost above the 3% cost requirement that would have required an association vote. If however cheaper materials are to be used, and by default “not approved upon”, but just modified – for example vertical blinds on the windows instead of sound dampening curtains, removal of the luxurious seating and replaced with less comfortable seating etc. then I find it hard to image that it would not fall under a material change.

Regarding material alterations to the common elements of condominiums in Florida, section 718.113(2), Florida Statutes, provides that unless a different procedure is provided for in the Declaration of Condominium, then a vote of 75 percent of all owners is required in order to alter the use, function or appearance of the common elements.

However, certain types of changes which substantially alter the rights of owners to use the common elements have been found to constitute not just an alteration to the common elements, but an amendment to the appurtenances of a unit. Section 718.106(2) provides that the right to use the common elements is one of the “appurtenances” which go with each unit, and these rights cannot be taken away without a 100 percent vote of all owners and lien holders under Section 718.110(4) of the Florida Statutes.

So if the theater room was to be modified to the point where unit owners can no longer enjoy, or use the area as it was before the modifications, I fail to see how this could not be a matter where a vote of the Association would have been required.

But I guess this is a matter for the courts to decide. I only know that many owners are displeased with the decision that the Board has made about the theater room.

carol

James & Valerie Pool: Unit 404

Dear Vito

Re: You can’t change the common area without a unit owner vote

If you choose to more forward without a records inspection by my attorney you need to protect the valuable assets such as the original framed film posters, the curtains, their valences and the carpets.

One of my guests yesterday afternoon is a designer and antique expert and I was given an estimate of the value of the assets. These are not throwaways items but are of classical value and sought after.

Another guest, Elizabeth Sharland, entertainment and food editor of Palm Beach Society Magazine, also attended my meeting and was shocked that there was going to be such changes, pointing out the elegant curtains, their specially designed valance surrounds and the very expensive unmarked carpet that looks like new.

I request that you do not demolish the theatre until my attorney and I review the documents with you. Stripping the wall paper was originally delayed due to time constraints. There is no emergency on your change of décor and we must review the paperwork to make sure it is a proper legal repair.

It seems strange that you have your wall paper workers come in the day before thanksgiving to remove the wall paper. Do you intend to remove anything else? As you probably aware, according to the law, you can’t remove the structure of the room or things of value. So, we request you remover nothing.

When my attorney requested to come today, Wednesday, at 2.p.m you said you were not available until next week. So, can’t any changes be delayed until after this meeting?

It appears to me that the work discussed at the board meeting seemed to go beyond the level of proper legal repairs. Changing the appearance of the theatre in any way would require a unit owner vote.

Regards,

James and Valerie Pool
UNIT 404