Q. I purchased my condo unit in 2005 with amenities that included 24-hour security, two pools, a parking lot, and a children’s playground. This past summer, our board destroyed the children’s playground to create additional parking, and made those extra spaces available for rent. None of the homeowners were informed about that. When I asked about it, I was told that the playground was in bad shape and costs the board extra money for insurance, and that the kids can use any of the nearby parks for playing. Is this action by the board legal?
—Distressed Unit Owner
A. “The destruction and discontinuation of a children’s playground would be a material alteration of the common elements, requiring approval as provided by state law and the Declaration,” says attorney Dan Lobeck of the Sarasota-based firm Lobeck & Hanson, P.A. “So would its conversion to a parking area.
“Florida case law provides that any perceptible change in the appearance, function or use of the common elements that cannot be justified as necessary for maintenance or protection is a material alteration: Sterling Village v. Breitenbach, 252 So.2d 685 (4th DCA Fla. 1971); Tiffany Plaza Condominium Association, Inc. v. Spencer, 416 So.2d 823 (2d DCA Fla. 1982); Cottrell v. Thornton, 449 So.2d 1291 (2d DCA Fla. 1984).
“In one case, a change in building color was held to be a material alteration: Islandia Condominium Association, Inc. v. Vermut, 501 So.2d 741 (4th DCA Fla. 1987).
“Section 718.113(1), Florida Statutes provides that there shall be no material alteration except as provided by the Declaration of Condominium and that if the Declaration does not provide a manner (such as by a vote of the board or a certain vote of the owners) then approval by 75 percent of all association members is required.
“Subsequent subsections of the statute provide special treatment for American and armed forces flags, hurricane shutters and other hurricane protection, mezuzahs and other small religious objects around doors and for solar collectors, clotheslines and other energy saving devices.
“Disputes between a unit owner and the association over material alterations (and in certain other matters) first go to arbitration before the Division of Florida Condominiums, Timeshares and Mobile Homes. There is an arbitration order which rejected an association’s argument that it could discontinue a pool heater by failing to maintain it as a matter of maintenance discretion: Celentano v. Reflections-On The-River Association, Inc., Arb. Case No. 94-0162, Summary Final Order (December 16, 1994).
“An association’s argument that it could dismantle a playground to save on insurance without approval of that change as a material alteration would almost certainly also be rejected, in arbitration and in any subsequent litigation.”