Did You Get It in Writing?

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Did You Get It in Writing?

By Eric Glazer, Esq. / Published December 2019

Photo by iStockphoto.com/SARINYAPINNGAM

We have all been in circumstances where someone promised something, reneged on that promise, and we wished we had the original promise in writing. “Getting it in writing” can also be crucial in the condominium and HOA context.

     Several years ago, our firm successfully argued the case of Curci Village Condominium Ass’n, Inc. v. Maria, 14 So.3d 1175 (Fla.App. 4 Dist.,2009). We represented the condominium association. The unit owner made landscaping modifications to the backyard of her condominium unit after having purchased her unit directly from the developer. Before control of the association was transferred to the homeowners, she inquired whether she could put “decorative improvements” in her backyard. The manager of the developer, who was also the president and director of the association at the time, told her that he “didn’t see a problem with it” as long as it did not impede the water runoff, was not permanent in nature, and did not require a permit. He told her that stones and mulch would be fine. When he gave her his “opinion” that it would be fine to make these modifications, he did so as president and director of the association. The owner never requested or obtained written permission from the association to make the modifications. The board of directors did not discuss during any meeting the decision to grant the owner permission to make modifications. Relying on this president’s verbal representations, the unit owner installed mulch beds, small paver stones, and crushed rock along the outside of the property. She also placed chairs and other leisure furniture in the area.

     Shortly after control of the association was turned over to the homeowners some four months later, the association sent a letter to the owner stating that the modifications were causing damage and flooding to the common areas and were in violation of the declaration. The unit owner sued the association, alleging a claim for declaratory relief and requesting that the court enter an order finding that she was not required to remove the landscaping modifications. She also sought damages pursuant to section 718.303, Florida Statutes, due to her being forced to defend the landscaping modifications.

     The association claimed that the unit owner was in violation of the declaration of condominium. Section 22.14 of the declaration provides that “[n]o balconies, patios or terraces shall be extended, enclosed or decorate[d] in any way whatsoever by a unit owner without the prior written consent of the Board of Administration.” Likewise, section 22.06 states that “every unit owner shall … [m]ake no alteration, decoration, repair, replacement or change of the common elements or to any outside or exterior portion of the building without the prior written consent of the association.”

     The trial court ruled in favor of the unit owner. The association then appealed. On appeal, the 4th District Court of Appeal held
     The declaration of condominium, which is the condominium’s “constitution,” creates the condominium and “strictly governs the relationships among the condominium unit owners and the condominium association.” Woodside Vill. Condo. Ass’n v. Jahren, 806 So.2d 452, 455-56 (Fla.2002). A declaration of condominium must be strictly construed. Palm Beach Hotel Condo. Ass’n v. Rogers, 605 So.2d 143, 145 (Fla. 4th DCA 1992). Two sections of the declaration required the owner to obtain written permission of the board prior to making improvements or alterations to her property or the common elements. She was required to comply with the provisions of the declaration pursuant to its own terms and section 718.303, Florida Statutes.

     Continuing, the court said, the board of directors did not give Santa Maria permission to make the modifications, and Santa Maria could not reasonably rely on a verbal representation to constitute the specific requirement of a written approval from the board. Santa Maria did not request or obtain written consent from the board prior to making the modifications as required by the declaration. Further, the president stated that when he spoke with Santa Maria about the modifications, he told her that he “didn’t see a problem with it,” and it was his “opinion” that the modifications would be fine. Santa Maria received merely a verbal opinion from one member of a three member board of directors. The fact that he was also president of the association and a member of the developer does not change that result. It is of no consequence that the modifications were made before the transfer of the association took effect, because the declaration was already in effect at the time Santa Maria spoke with him. Because the declaration explicitly required the prior written consent of the board of directors, Santa Maria could not have reasonably or justifiably relied on his verbal statements.

       The bottom line is that if a declaration or section of the bylaws requires that permission or approval of an action must be in writing, make sure to get it and never rely on an oral approval— especially if it’s only from one member of the board.

Eric Glazer

Owner, Glazer and Sachs PA

     Eric Glazer is a graduate of NYU and The University of Miami School of Law.  He is a member of the Florida Bar since 1992 and is Board Certified in Condominium and Planned Development Law.  He is the owner of Glazer and Sachs PA., with offices in Fort Lauderdale, Orlando, and Tallahassee.  Eric has certified in excess of 16,000 members of condominiums and HOAs and has hosted the Condo Craze and HOAs radio show each Sunday for the past 10 years.
     For more information, call (954) 983-1112 or visit www.condo-laws.com, condocrazeandhoas.com, or hoa-condoblog.com