By Ryan D. Poliakoff / Published September 2019
I live in a condominium in Port St. John. When I moved in here, we had a property management company and a board. Recently, the board has been replaced, and the property management company has been fired. The new board president began removing the existing landscaping and replacing it with coquina rock and new plants. I wrote a letter, and it was shown to our attorney, who said the new landscaping must be put to a membership vote. Landscaping has stopped until a vote has been completed. Now the pool deck has been replaced—which was necessary, and I would consider maintenance if they had maintained our cool, white, non-slip pool deck. Instead, they replaced it with a hot, colorful, glittery, slippery liability. Yesterday they brought crews out to resurface the pool deck because four people have fallen.
My questions are as follows: Doesn’t Florida’s condominium statute require a 75 percent vote if these kinds of changes are made? Is this a material alteration or maintenance?
As you are aware, the Condominium Act, at Section 718.113, Fla. Stat., provides that any “material alteration” of the common elements or condominium property must be approved by a vote of 75 percent of the membership, or whatever other percentage is required by the declaration of condominium as originally drafted or amended. I have seen condominium declarations that give boards broad authority to make “material” changes without any vote at all; but many governing documents, like yours, require the same 75 percent vote described in the statute.
A “material” alteration is one that palpably or perceptively changes the use, function, form, or appearance of an element. The word “material” is an antonym of “immaterial”—they are talking about changes that matter, rather than changes to the materials used to modify the common element. On the surface, as you described, your landscaping change would certainly constitute a “material” alteration, and the pool deck change would reasonably constitute a “material” alteration as well.
There is, however, an exception to the material alteration rule that has been recognized by arbitrators, called the “maintenance exception.” When an alteration is made not for the primary purpose of changing the appearance of an element, but is instead made in furtherance of the association’s obligation to maintain, repair, and replace the common elements, it may constitute an exception to the material alteration rule, and as such would not require a membership vote. For example, one “maintenance exception” case involved an association that replaced its chattahoochee pool deck with paver stones. The association argued that it had become impractical to maintain and repair the chattahoochee, particularly when repairs were needed to drainpipes below the pool deck. In contrast, paver stones are easy to maintain, and when repairs need to be made underneath, you simply lift up a section of paver stones, do the needed work, and reinstall the stones. So, the arbitrator ruled that the change was an exception to the material alteration rule and, despite that it was clearly a “material” change to a common element, no membership approval was required. The arbitrator stated that it was reasonable for the board to conclude that the paver stones were more functional, less expensive, and less costly to repair or replace in the future.
It’s difficult to predict exactly how this maintenance exception may be applied in any given case. Our firm has prevailed in a case extremely similar to the one you have described, where a concrete pool deck was changed to a “cool deck” surface in a completely different color. But, I have also seen cases that I would have thought were obvious applications of the “maintenance exception,” but where the arbitrator decided that a membership vote was required. To complicate things even further, I have seen arbitrators apply the rule incredibly broadly, stating that when a common element is at the end of its useful life and must be maintained, the material alteration rule goes out the window, and the condominium can essentially do whatever it wants. Now, that likely was not the intent of the statute, and the majority of cases are not that liberal—but arbitrators are not bound by prior arbitration decisions, so sometimes their decisions are all over the map.
Further complicating the application of the “maintenance exception” is the fact that courts are generally hostile to this principle, and there are very few court cases that have allowed such extensive alterations without a membership vote simply because they constituted “maintenance.” So, even if a particular material alteration were to survive challenge at the arbitration level, I would always be concerned that, if a unit owner were willing to push the matter to court (understanding that the risk of liability for legal fees continues to grow the further the dispute is pursued), a court would be far more likely to require a membership vote. But, because these cases are so costly to litigate, very few challenges actually make it past arbitration—and based on the arbitration cases I’ve seen, your pool deck change might very well fit within the exception.
Ryan D. Poliakoff
Partner, Backer Aboud Poliakoff & Foelster
Ryan D. Poliakoff is a partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods —The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at firstname.lastname@example.org. For more information about his firm, visit www.bapflaw.com.