Daytona Beach, Florida - Real Estate lawyer represented Appellees with challenging to the material alterations and new rules enacted by Appellant.

Without conducting a vote of the owners, Appellant, Lexington Place

Condominium Association, Inc. ("Association”), through its Board of

Directors ("Board”), made material alterations to the common elements by

eliminating an existing dog park and a wallyball court. The Board also

enacted a new rule restricting tenants' rights to have pets that conflicted with

an express provision of the Declaration of Condominium ("Declaration”).

Appellees, Michelle and Kevin Flint ("Flints”), own several units at Lexington

Place, and their challenge to the material alterations and new rule was

successful during non-binding arbitration. The Association sought review of

the arbitration decision by pursuing a trial de novo in circuit court. The circuit

court ruled in favor of the Flints and affirmed the arbitration award. We agree

with the arbitrator and trial court that the Board ignored clearly relevant and

controlling provisions of the Declaration. The Board lacked authority to make

the material alterations to common elements or enact the new restrictive pet

rule absent sufficiently favorable votes of the unit owners. Accordingly, for

the reasons set forth below, we affirm the final summary judgment the trial

court entered in favor of the Flints, and we grant their motion for appellate

attorney's fees.

Material Alterations

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Following the Association and its Board's actions, the Flints promptly

filed a Petition for Mandatory Non-Binding Arbitration with the Department of

Business and Professional Regulation Division of Florida Condominiums,

Timeshares and Mobile Homes ("DBPR”) against the Association, alleging,

inter alia, that the Association in 2019 had violated its governing documents

by removing two common elements, the dog park and wallyball court,1

without a vote of the unit owners. In February 2020, the DBPR arbitrator

filed his Summary Final Order, which ruled in favor of the Flints. The

Association filed a Motion for Rehearing And/Or Motion for Clarification,

which was denied by the arbitrator. The Association then filed a complaint

for trial de novo in circuit court in which it repeated the same arguments

made to the arbitrator. The circuit court ruled in favor of the Flints and

affirmed the arbitrator's decision.

From arbitration through appeal, the Association has argued that they

were authorized to eliminate the dog park and wallyball court by Article 8 of

the Declaration which states:

8. Additions, Alterations, or Improvements by the Association.

Whenever in the judgment of the Board of Directors, the

Common Elements, the Association Property, or any part of

1 Wallyball is volleyball played on a racquetball court where the players

can hit the ball off of the walls. As noted by the Association, the removal of

the wallyball court here involved removing the volleyball net from the

racquetball court so the court could be used to play racquetball.

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either, shall require capital additions, alterations or

improvements (as distinguished from repairs and replacements)

costing in excess of $100,000 in the aggregate in any calendar

year, the Association may proceed with such additions,

alterations or improvements only if the making of such additions,

alterations or improvements shall have been approved by a

majority of the Unit Owners represented at a meeting at which a

quorum is attained.

On the other hand, the Flints have consistently argued that the Association

and its Board's power to make material alterations to common elements was

governed and restricted by Section 6.4 which states:

6.4 Material Alterations or Substantial Additions. The

Association shall not make any material alterations or substantial

additions to the Common Elements or to real property which is

Association Property, without the approval of a majority of the

voting interests of the Unit Owners.

"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.” § 718.113(2)(a), Fla. Stat. (2019). "A declaration of

condominium is 'the condominium's constitution.'” Beachwood Villas Condo.

v. Poor, 448 So. 2d 1143, 1145 (Fla. 4th DCA 1984) (quoting Schmidt v.

Sherrill, 442 So. 2d 963, 965 (Fla. 4th DCA 1984)).

The terms "material alteration” or "materially alter” in condominium

declarations, when not otherwise defined, mean "to palpably or perceptively

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vary or change the form, shape, elements, or specifications of a building [or

common element] . . . in such a manner as to appreciably affect or influence

its function, use, or appearance.” Sterling Vill. Condo., Inc. v. Breitenbach,

251 So. 2d 685, 687 (Fla. 4th DCA 1971); see also Tower House Condo.,

Inc. v. Millman, 410 So. 2d 926, 928 (Fla. 3d DCA 1981). It is indisputable

that elimination of the dog park and wallyball court were material alterations

of then-existing common elements.

While Article 8 of the Declaration gives the Association and its Board

certain authority to deal with day-to-day matters, subject to an annual dollar

limit, it does not mention "material alterations.” The Association's reliance

upon Lenzi v. Regency Tower Ass'n, 250 So. 3d 103 (Fla. 4th DCA 2018), is

misplaced. Regency Tower's declaration explicitly authorized its board of

directors to make material alterations to common elements with no

requirement of owner approval, while the Association's Declaration,

specifically Section 6.4, explicitly requires a majority vote of owners prior to

the material alteration of any common element. Thus, under the

circumstances present here, the Association and its Board lacked authority

to eliminate the dog park and wallyball court in the absence of the majority

of owners voting their approval.

Rule Restricting Pet Ownership by Tenants

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In their DBPR petition, the Flints also successfully challenged the

Association and its Board's 2019 adoption of Rule IX which states:

IX. PET RESTRICTIONS

Notwithstanding the provisions of Section 17.4 of [the

Declaration]. Tenant(s) or Occupant(s) are not permitted to

maintain household pets in a Unit. Section 17.4 of [the

Declaration] permits "Unit Owners” to maintain pets within a Unit,

and subjects only 'Unit Owners” [sic] for the fines and penalties

for violations of Section 17.4.

Any pets residing in units with a Tenant(s) or Occupant(s) at the

time and date these rules are adopted, are considered

"grandfathered” and not subject to the Pet restrictions herein.

Existing pets are grandfathered in as to that specific pet. The

right to a pet is not grandfathered. If the specific pet ceases living,

a new pet is not permitted.

(emphasis added).

The Flints argued that Rule IX amounted to an unauthorized

amendment of the Association's Declaration, specifically Section 17.4, which

provides in pertinent part:

17.4 Pets. No more than two (2) housed pets (as may be defined

and re-defined by the Association) shall be maintained in any

Unit or and Limited Common Element appurtenant thereto.

Section 17.4 also restricted the maximum total weight of pets to an aggregate

of eighty pounds, prohibited any commercial activity involving pets, and

provided for removal of pets that were dangerous, noisy, or otherwise a

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nuisance. Section 17.4 did not distinguish between owners versus tenants

or other occupants when it came to pets.2

The Association and its Board's adoption of Rule IX amounted to an

attempt to amend the existing pet ownership rights set forth in Section 17.4.

Article 6 of the Declaration governs amendments to the Declaration and

includes two separate provisions: one for amendments done by the

association and one for amendments done by the Board. Under Section 6.1,

two-thirds of the voting interests of the unit owners must vote in favor of the

amendment to the Declaration when proposed by the association. Under

Section 6.2, if the Board wishes to amend the Declaration, it can do so upon

unanimous vote of all directors; however, the amendments can only relate to

very limited topics: (1) mortgages, (2) requirements by any governmental

authority, or (3) "provisions of this Declaration to any provisions of the

[Florida Condominium Act] or any rule promulgated thereunder, or any other

applicable statute or regulation now or hereafter adopted or amended.”

It is undisputed the Board is authorized to enact rules and regulations,

but that power is not unlimited. "Clearly, a condominium board may not adopt

rules modifying the provisions of a declaration without proper amendment [of

2 During oral argument, the Association withdrew its contrary and

inaccurate assertion found in its reply brief that Section 17.4 "expressly limits

the right of pet ownership exclusively to unit owners.”

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the declaration].” Mohnani v. La Cancha Condo. Ass'n, 590 So. 2d 36, 37–

38 (Fla. 4th DCA 1991) (quoting Gordon v. Palm Aire Country Club Condo.

Ass'n, 497 So. 2d 1284, 1285 (Fla. 4th DCA 1986)). However, that is exactly

what the Board attempted to do by adopting Rule IX. Given that the

requirements of Section 6.1 for amending the Declaration were not followed,

and Section 6.2 was inapplicable, the Association and its Board lacked

authority to adopt Rule IX.

Accordingly, we affirm the trial court’s final judgment that affirmed the

arbitrator’s decision and specifically ordered the Association to restore the

dog park and wallyball court and further ordered the Association to

immediately void, revoke, withdraw, and not enforce Rule IX.