Q: Our condominium association is thinking about changing roofing materials. Our bylaws say that a majority of the unit owners who participate in a meeting can decide any issue, “unless a specific voting percentage is stipulated in the declaration, these bylaws or law.” Does this mean that a majority of the unit owners can approve a roofing change? (L.T., via e-mail)
A: Section 718.113(2) of the Florida Condominium Act requires the approval of at least 75% of the total voting interests to approve any “material alteration or substantial addition” to the common elements unless the declaration of condominium provides otherwise.
So, there are a series of questions that must be asked and answered. First, are the roofs part of the “common elements” as opposed to being part of the “units?” In most cases, roofs are common elements.
Second, is the change of roofing materials a “material alteration or substantial addition?” The test used to answer that question comes from an appeals court decision from over 50 years ago, which is still cited today. In a 1971 case called Stirling Village Condominium Association v. Breitenbach, the court said: “We hold that as applied to buildings, the 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 functions, use or appearance.” Obviously, this is a very broad standard.
The third question to answer is whether, even if the work is a material alteration, can the association forego a vote under the “necessary maintenance exception” to the “material alteration rule?” In a 1984 case called Ralph v. Envoy Point Condominium Association, a Florida appeals court ruled that if work involving an alteration to condominium common elements is “necessary” in order to maintain the common elements, and approval of condominium unit owners is required by the condominium documents for alterations or improvements, but only board approval is required for maintenance, the work may be treated as maintenance for the purpose of determining the necessary authority for the work.
However, in a 2002 Florida appeals court decision called George v. Beach Club Villas Condominium Association, the association had been warned by the City of North Miami Beach that it would be fined if the mansard roofs were not painted and repaired. The mansards were covered with cedar shingles, which were over 25 years old. The association received several estimates and determined that changing to terra cotta tiles would be half the cost of replacement with new cedar shingles. Because the shingles were at the end of their useful life, the association argued that it was reasonable for the board to determine that replacement was the proper course of action. Furthermore, the association asserted that the board’s decision to use tile, which was half the cost of new shingles, was not only reasonable but prudent as well. Nevertheless, the court concluded that the change from cedar shingles to barrel tiles constituted a material alteration in appearance, which should have been subjected to a vote of the owners, and that the “necessary maintenance exception” did not apply.
Finally, assuming that the roof material change is a material alteration and not exempted from owner vote under the “necessary maintenance exception,” what does the declaration say about “material alterations?” If it is silent, then you need 75% of all voting interests. If the declaration is not silent, then the board must follow the guidance in the declaration, not the bylaws.
The bylaw language you cite, which is a common clause applicable to general voting, is not applicable here because the issue is otherwise addressed “by law” and because material alteration authority must be contained in the declaration.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.