I recently walked into the lobby of my condo building greeted by a new décor theme. I was completely caught off guard as there had been no correspondence
to the homeowners that this change would be taking place. I'm wondering if
there's any legal precedent that gives my condo's board the power to make such
changes without any vote. Is there any way to challenge it now, after the
renovations have already been made?
—Confused in Clearwater
“The answer to your question will depend upon the scope of the changes made to
the lobby and the authority granted to the board contained within the
association’s governing documents,” says Attorney David Muller, a shareholder attorney with the law firm of Becker & Poliakoff in Sarasota. “In general, the board is empowered with authority to maintain the common
elements. However, certain changes to the common elements may be considered a 'material
alteration' which may require unit owner approval. Florida courts have held
that a material alteration is one which 'palpably or perceptively varies or
changes the form, shape, elements or specifications” of the common elements “in such a manner as to appreciably effect or influence its function, use or
appearance.' “Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA
1971). If the change in the new décor theme of the lobby is considered a material alteration (as opposed to
routine maintenance/replacement), approval of the unit owners may be required.
Section 718.113(2)(a), Florida Statutes, requires 75% of the total voting
interests to approve a material alteration unless the declaration, articles of
incorporation or bylaws provide for an alternative approval method/standard. Most condominium association governing documents contain a provision which sets
the approval standard for material alterations to the common elements.
“The governing documents may require a specific approval threshold of the unit
owners be obtained before the alteration is allowed. Other governing documents specifically carve out exceptions whereby the board of
directors alone can approve certain material alterations without the need to
obtain unit owner approval. For example, many governing documents will grant the board discretion to approve
a material alteration if the cost of said alteration is below a specific dollar
amount. Unit owners may take legal action against an association if the unit
owner believes an unauthorized alteration to the common elements has occurred.
“This area of condominium law is complex and there are additional considerations
which may impact the ultimate analysis (e.g. what if the alteration is required
to comply with code, etc.), which are beyond the scope of this article. It is recommended that a licensed Florida attorney, with experience in community
association law, be consulted to fully evaluate your specific situation and the
legal remedies available.”