Image result for Section 718.113(2)(a), Florida StatutesCan a Board of Directors vote on material alterations to a condominium building without a member vote?  You may be surprised by the answer.

Section 718.113(2)(a), Florida Statutes, contains a well-known restriction on “material alterations” to the common elements of a condominium building, which provides as follows:

Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property,except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018.

(Emphasis added) Thus, unless the condominium association’s declaration (either originally or through amendment) expressly provides for another method of making “material alterations or substantial additions,” a seventy-five percent (75%) vote of the total voting interests of the association is required, and, as of July 1, 2018, is required to be taken before the material alteration or substantial addition is commenced.

On June 20, 2018, the Fourth District Court of Appeal, which hears appeals from state court cases originating from Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties, issued a decision interpreting a condominium association’s documents and the above statute.  In that case, Lenzi v. The Regency Town Association, Inc., the declaration provided that “such alterations or improvements” to common property could be made simply with approval of the Board of Directors, and there was no separate provision specifically addressing “material alterations.”  In the Lenzi case, the Board voted to change the flooring in the lobby from Carrara marble to ceramic tile.  An owner filed a petition for arbitration arguing that the Board vote was improper, because the declaration did not address material alterations; thus, the owner argued that section 718.113(2)(a) controlled and a seventy-five percent (75%) unit-owner vote was required.

After Division and trial court proceedings, the owner appealed to the Fourth District Court of Appeal. That Court found that “it is clear that ‘alterations’ refers to all alterations, not only non-material alterations.”   The District Court explained that unless terms are expressly defined, “terms ‘should be given their plain and unambiguous meaning as understood by the “man-on-the-street.”  The Fourth District concluded that because the declaration included a provision providing for Board approval of alterations, this included material alterations, and the Board could approve material alterations without a seventy-five percent (75%) unit-owner vote.

We recommend all condominium Board members and unit owners examine their declarations, and any amendments to the declaration, to see what authority the Board of Directors has over material alterations—it may be broader than you think.  Keep in mind that the declaration can also be amended to reduce the stringent seventy-five percent (75%) requirement, which in some circumstances, can be a substantial benefit to the association.  Finally, keep in mind that as of July 1, 2018, if a vote of the unit owners is required, it must be obtained before the material alteration begins.

by Lauren B. Feffer, Shareholder, Rosenbaum PLLC

  1. Robert Wood says:

    We are in our 70s and bought our condo on the second floor of a two-story building because there is an elevator. Although it was never disclosed to us, the president of the condo board had failed to properly maintain the elevators in several buildings, including ours and there were several breakdowns during her tenure. Although a new president and board have been elected and seemed to be trying to catch up with deferred maintenance on the elevators as well as the clubhouse and other areas that the former president had also neglected, this evening a member of the board told us that the board is discussing phasing out the elevators because board members feel that, at an estimated special assessment of $4,000 per unit to pay for refurbishing, that would be too much. While my belief is that not doing the refurbishment would completely destroy the our condo community property values, I want to know if the board could legally “phase out” elevators, an act that I’m certain could severely limit access for disabled and elderly residents.

    • FAN says:

      Based on the fact described by the inquirer, the Board of Directors could not eliminate the operation of the elevators by electing not to repair them so that they are not operational. By “phasing them out”, I am assuming the elevators would be rendered inoperable and non-accessible. This may be considered a material alteration of the common elements. This may also be in violation of a Unit Owner’s or rights of other residents under state and federal fair housing laws. The inquirer should seek out the advice of a qualified attorney to ascertain his or her legal rights.

  2. Margaret Somerville says:

    Without a stockholder vote or agenda item, the current Board has changed the use of 2 common area spaces: 1) removed appliances from a kitchen area to install workout area; and 2) removed table and chairs from area to house bikes as an overflow from the bike bay. Are these alterations a violation of 719 protocols?

  3. James Ciliberti says:

    My current condo board is contemplating replacing all the water pipes in a condominium my position is that it is a capital improvement in their position is that it’s a maintenance according to our docs capital improvements required that 75% of the members attending the meeting can vote on it their position is That the board can vote this for us without the 75% who is right

  4. Martin E. Moore says:

    What are the likely repercussions if a Board is found to be be in violation of making material alterations without the proper membership vote?

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