Material Alterations Matter

By Keith Backer, Esq. / Published February 2023

It should come as no surprise to regular readers of this magazine that Florida condominium law requires associations (according to F.S. 718.113(2)(a)) to obtain the approval of the unit owners before making a material alteration to the common elements. A recent Florida appellate court interpreted a condominium’s declaration that included language which seemed to only require unit owner approval for alterations in excess of a specific dollar amount.

     The declaration of condominium in this case provided approval of a majority of those owners in attendance at a meeting where a quorum was present when “capital additions, alterations, or improvements costing more than $100,000.00 …” were determined to be needed by the board. The board interpreted the language to mean that no unit owner approval was required for those capital additions, alterations, or improvements costing less than $100,000. Based upon that interpretation, the board shut down a dog park and a wallyball court without a vote of the unit owners, and an owner filed suit. 

     The appellate court focused on the fact that removing two amenities such as the dog park and the wallyball courts undoubtedly fell within the definition of the words “material alterations” and referred to the oft-cited definition of material alterations as “to palpably or perceptively vary or change the form, shape, elements, or specifications of a building … in such a manner as to appreciably affect or influence its function, use, or appearance.” The court held that the language which authorized a lesser (or no) level of unit owner approval was intended to “deal with day-to-day matters subject to a dollar limit.” Since the court found that the elimination of the two amenities at issue in this case was so clearly a material alteration, the court did not elaborate on what circumstances would allow the board to make the “capital additions, alterations, or improvements” that were authorized in the section which authorized the board to act within the stated dollar limit. In this author’s opinion, it seems as though the court’s conclusion eliminated the declaration’s exception entirely since it is hard to conceive of any “capital additions, alterations, or improvements” which would not fall within the very broad definition of a material alteration. 

     This case is the latest in several rulings from Florida appellate courts which have strictly construed the language of the Condominium Act and condominiums’ declarations on the issue of the authority of a board of directors to make changes to the common elements without unit owner approval. Given the lack of liberality in construing the law and documents on this issue, condominium associations should take heed and apply the same conservative approach when considering whether to change the common elements without obtaining whatever level of unit owner approval is required by the declaration or Condominium Act.

Keith F. Backer, Esq.

Partner, Backer Poliakoff & Foelster

     Keith F. Backer, Esq., is a partner of Backer Poliakoff & Foelster, a law firm serving community associations in Palm Beach, Broward, and Miami-Dade Counties. The Firm was founded by Mr. Backer, a Florida Bar board certified specialist in condominium and planned development law with more than 35 years of legal experience in Florida. The law firm was created to provide community associations with the highest quality legal services with a degree of personal attention often difficult to obtain at larger firms. For more information on Backer Poliakoff and Foelster, call (800) 251-3562, email kbacker@bapflaw.com, or visit www.bapflaw.com.