Covenant EnforcementAs buildings age and resales create pressure to “modernize,” condominium and homeowners associations see more and more renovations by owners. Most owners and some associations assume what appears to be “inside” is the property of the owner to change as the owner desires without association approval.

What happens if an owner undertakes renovation, such as removing a ceiling, without obtaining approval? Can the association force the owner to replace the ceiling? In Florida, it depends on the documents.

A Florida appellate court recently ruled that whether the removal of drywall from a unit’s ceiling violated a declaration of condominium was a real issue and sent the case back to the trial court, presumably for a trial. In Andrews v. Shipp’s Landing Condominium Association, Inc., 40 Fla. L. Weekly D 1358 (Fla. 2nd DCA, June 10, 2015), an owner of a unit applied for and received permission to renovate portions of its unit. The only specific requirement which the Association had for renovations was that an owner’s request be in writing. The owner’s written request listed some renovations, but did not include removing drywall from the ceiling.

During the renovations, the owner removed the ceiling drywall to give the property a “loft” feel by exposing concrete ceiling beams. After a neighbor complained to the Association, the Association ordered the owner to replace the drywall on the ceiling. The owner sued the Association seeking a judge to declare what were the owner’s and the Association’s rights.

The Association argued that the owner violated the Declaration of Condominium either because: (1) The drywall was outside the boundaries of the unit and therefore its removal was a material alteration of a common element without written permission; or, (2) its removal was a material alteration of the unit without written permission. In opposing the Association’s motion for summary judgment, the owner filed affidavits of an engineer, who was a certified building inspector, and a surveyor, both of whom opined that the drywall was within the unit’s boundaries. Apparently disregarding the engineer inspector and surveyor, the trial court granted judgment for the Association and ordered the owner to restore the drywall on the ceiling.

The Florida appellate court reversed the trial court’s decision, concluding that the Association failed to introduce any evidence showing that the removal of the drywall violated the Declaration. The Association did not prove that the drywall was a limited common element – that is, the Association did not show that the drywall ceiling was outside the boundaries of the unit. Apparently, the Declaration text did not clearly state that the ceiling was outside the unit.

This decision shows the importance for a Florida association to know what unit and common element boundaries are before chasing an owner for violating the Declaration while making renovations. Determining boundaries, especially for maintenance and alteration rights, is a complex effort requiring evaluations of not just one paragraph, but cross-referencing multiple provisions which sometimes appear contradictory, and then referencing case law which frequently leads to a different conclusion than what may be assumed.

Florida homeowners’ associations have many of the same issues as condominiums, especially if the homeowners’ association is responsible to maintain or repair any portion of an owner’s lot. Just because it is not a condominium does not mean that boundaries are not important!

So, the proverbial “moral to the story” is that before an association demands that an owner restore their property, if the demand is based on the claim the change was outside the property, make certain the alteration was in fact made outside the boundaries of the property. If you have any questions, contact your Association’s counsel.

By Michael Gelfand, Esq., Gelfand & Arpe P.A.