Can the Board of Directors decide to change the color of your condominium building or the interior hallways from carpet to white marble tiles? What limits are placed on the Board of Directors’ authority to change the design or elements of a condominium building?

These questions all involve the ins and outs of material alterations – and often requires analysis of the association’s governing documents (especially declaration and bylaws), the Condominium Act (Florida Statute Chapter 718), and applicable case law and arbitration decisions.

What is a “material alteration” at a condominium association? “[T]he term ‘material alteration or addition’ means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.” See Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685, 688 (Fla. 4th DCA 1971).

But what if it is a minor change to the building? More often than not, even relatively small changes are considered material alterations. For example: an association replacing a four foot fence with a six foot fence. See In re Petition for Arbitration, Sonley v. Southwind Owners Association, Inc., Case No. 17-02-3725 (Simms, Summary Final Order, 2017); and the mere change in the visual appearance of a roof was a material alteration. See In re Petition for Arbitration, Parker v. Spinnaker Cove Condominium Ass’n, Case No. 17-00-1420 (Jones, Summary Final Order, 2017).

 

What does the Florida Condominium Act say about material alterations? 

 

Section 718.113(2)(a), Fla. Stat. “(2)(a) 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.”

As you can see from the statute above, the FL Condo Act only controls when the association’s declaration does not already provide the procedures to approve of material alterations. Does your declaration require approval by a percentage of the entire membership or only of the members attending the special meeting (in person or by proxy) where a quorum was established? 

Do all declarations contain the same requirements for approval of material amendments? No! Each declaration must be analyzed on a case by case basis to see the specific procedural and voting requirements. All declarations were not created (drafted) equal. When planning a proposed material alteration project, it is important to confirm what your association’s specific requirements are for: special meetings, advanced notice timing, quorum requirements, voting/approval minimums, and potential restrictions on the maximum amount of funds or the specific source of funds to pay for the material alteration. 

Understanding, planning, and executing material alteration projects at condominium associations is a complex process. From the outset of the proposed project, associations should seek professional advice from their management company, legal counsel, and accountant in order to avoid some of the pitfalls and potential legal liability. To learn more contact David Podein at dpodein@haber.law.