Question: Hi. My condo complex board decided to let everyone change out their sliding doors and windows to hurricane proof type, only for the owners who wanted them. Now they are talking about forcing the rest of the owners to this upgrade. My question is can the condo board vote on that or should all the owners be allowed to vote on this Thank you, Love your articles in the paper.
Answer: Replacement of windows and doors is generally subject to Section 718.113(2)(a) of Florida Statutes, which deals with material alterations or substantial additions to the Common Elements. The statute basically provides that any such alterations must be in accordance with provisions of the governing condominium documents and, if the documents do not have a governing provision, must be approved by 75 percent of the total voting interests of the association. Your board of directors may not have authority to approve installation of windows and doors if they are a material alteration.
Material alteration has been defined by court cases “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 appreciatively effect or influence its function, use, or appearance.”
One case that may bear on the replacement issue is Brickell Townhouse Association, Inc. v. Bagdan, Arbitration Case 00-1683, decided by an arbitrator with the Division of Florida Condominiums, Time Shares and Mobile Homes. In that case, a condominium suffered hurricane damage to many windows. The board decided the old windows would not provide protection in the event of another hurricane and also allowed water intrusion to the units. The board decided, without membership vote, to replace the old windows with hurricane rated windows instead of repairing the old windows. The new windows had the same appearance and structure of the old windows and the arbitrator upheld the board’s decision because it ensured the structural safety and soundness of the condominium. The case does not address replacement where the windows have not been damaged.
Florida statutes treat hurricane shutters differently. In 1992, the Legislature amended the Condominium Act to mandate that every board of directors of a condominium approve hurricane shutter specifications and allow owners to install hurricane shutters meeting those specifications. The only limit on specifications is that they meet or exceed the applicable building code.
The statute also provides that the board of directors may install hurricane shutters, impact glass or other code compliant windows or hurricane protection that equals or exceeds the applicable building code if approved by a majority of voting interests of the condominium. Responsibility for maintenance, repair and replacement of hurricane protection will be as established in the declaration of condominium for either owner or association, even if the association installed the hurricane protection. The board may not install hurricane protection without approval by a majority vote of the voting interests.
Section 115(1)(e) of the condominium act addresses previously installed hurricane protection when the association votes to install throughout the building. If a unit owner has previously installed hurricane protection that complies with current applicable building code, the owner receives a credit equal to the pro rata portion of the assessed installation cost assigned to each unit. That means the unit owner is excused from paying that portion of installation that would otherwise be applicable to his or her unit, but is not excused from the pro rata portion of installation cost for the common elements.
The statute does not specifically state that the association can mandate unit owners install hurricane protection. But, that issue was resolved in the case of Seascape Club Condominium Association, Inc. v. Frankel, Arb case number 98-3541 and 98-3543. In that case, the board adopted a rule, approved by a vote of the unit owners that required each owner to install hurricane shutters meeting specifications adopted by the board. The arbitrator ruled against an owner who was unwilling to install shutters. Mandating owner installation removes the board from issues of contracting and payment.
Window and door installation and repair is a frequent issue in condominiums. Hurricane protection and the cost of that protection is something associations are facing more frequently. Although the general issues are not technical, it is recommended you retain an experienced attorney to be sure the association complies with applicable statutory requirements.
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.