Condominium Associations are in the maintenance game it seems at times. Just when one project ends, another is beginning. Maintenance is simply a fact of life for all condominiums. A big problem arises in many condominiums, however, when the maintenance project is deemed by the membership to be too expensive as they believe the cost triggers their right to vote on whether the project can proceed. This hiccup in condominium living usually comes up when the contract for the project is being discussed at a board meeting or when the dreaded special assessment notice gets posted.
It is of crucial importance that both owners and board members understand that just because a project carries a hefty price tag that does not make it subject to member approval. Maintenance (which for purposes of this article includes repair and replacement work as well) of the common elements simply falls to the association no matter the cost. Note that I said maintenance rather than material alterations or additions.
Material alterations or additions occur for the most part, when you “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 functions, use or appearance.” Sterling Village v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971). Simply put, changing the lobby carpet to tile and changing the building’s color from white to gray are usually considered material alterations. Even then, however, a member vote may not always be required. The Condominium Act provides that if a material alteration is to occur, the association must first obtain the vote of the membership authorizing the alteration. If the condominium’s declaration is silent as to the approval required, the statute requires it to be by 75% of the total voting interests. If the declaration, however, touches on the issue of material alterations one applies its requirements. In such a situation, if the declaration allows the association to undertake material alterations without a member vote then it can proceed. If it allows material alterations up to a specific financial limit then the association can proceed within that financial limit without a member vote. The declaration can however still require a member vote and have the vote be a much lower threshold than the 75% set forth in the statute. It can also be higher.
Note that the cost of a project which is otherwise purely maintenance does not factor into whether a member vote is required. Nor is cost a consideration when a material alteration is going to occur unless the declaration specifically takes cost into consideration.
Something else for associations to consider is that the same project may have elements of maintenance for which a member vote is not required and elements of work which rise to the level of material alterations where a vote is required. To figure out if your project has elements of both requires an understanding of what the law deems a material alteration coupled with the findings of any industry professionals and the involvement of the association’s counsel.
There are also exceptions to the material alteration doctrine which make a project maintenance despite it obviously palpably and perceptively changing the common elements in the manner described in Sterling Village. If you feel your condominium’s project might be subject to one of these exceptions, you should discuss it with the association’s attorney who will help create a roadmap for determining if the exception really exists.
Originally posted on floridacondohoalawblog.com. Written by Marilyn Perez-Martinez