Alterations, Small or Large, Are Still Alterations

June 29, 2018

There are many considerations when making changes to the common areas of your condo association.  How much will it cost? Are bids required? What materials are needed?

Before any of these questions can be answered, however, the first question a Board should ask is:

Whether a board vote or membership vote is needed to approve the proposed alteration?

It is advised that Board members first look into their declaration to determine whether any procedures for alterations are already in place.  If so, the declarations will set forth the voting requirements needed for alterations.  However, what happens when the declaration’s procedures account for “alterations” but does not explicitly provide procedures for “material alterations?”  Luckily, the decision by the Fourth District Court of Appeals in Lenzi v. The Regency Tower Ass’n, Inc., Case No. 4D17-2507 (Fla. 4th DCA June 20, 2018) may have provided a concise method of analysis.

In Lenzi v. The Regency Tower Ass’n, Inc., a unit owner challenged the Board’s approval to alter the common area’s flooring from marble to tile, arguing that a membership vote of 75 percent is required as per The Condominium Act (F.S. Chapter 718).  However, Regency Tower’s declaration states that the Association had the power to make “such alterations or improvements to the common property” with merely the approval of the Board.

The unit owner relied on Section 718.113(2)(a), Florida Statute, which provides that if the declaration “does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interest of the association must approve the alterations or additions.” However, Section 718.113(2)(a), also states that “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 original recorded or as amended under the procedures provided therein.”

The Court ultimately ruled that only a Board vote was required, reasoning that, although Regency Tower’s Declaration used the term “alteration”, the Condominium Act’s adding the adjective “material” does not change the target noun “alteration.”  Thus, a “material alteration” is still an “alteration.”

As a result, the association must first look at its declaration to determine whether any procedures are set forth regarding alterations to the common areas.  If procedures are in place, the association must comply with the declaration, whether it specifies material or non-material alterations.  However, if the declaration is silent as to procedures for altering common areas, then Section 718.113(2)(a) requires 75 percent of the total voting interest of the association to approve alterations.

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