By: Aaron Swimmer, Esq.,

Many Florida condominium associations face the problem of individual owners who have made changes to common, or limited common elements, to enhance their individual unit. An example could be when a condo owner encloses a hallway or balcony to expand her total space under AC. Commonly, this taking of common area may have been done with some sort of quasi association approval, allowing the condo owner to obtain the required municipal building construction permits. The association may not even be aware of changes for many years. At some point in time, the association then becomes faced with the situation of forcing the condo owner to return the unit to its original design. This may come about for reasons such as neighborly pressure or because of governmental code compliance issues.

So what can the association do; what is the law? Florida Statutes state that a person who owns a condo subjects her interest in the condominium property to the provisions of the condominium declaration. Further, Florida Statutes also say that all provisions of the declaration are enforceable equitable servitudes, run with the land, and are effective until the condominium is terminated.

Therefore, under the law, unit owners are prohibited from making any alterations or additions to the common elements, except in a manner provided by the condominium’s Declaration. The condo owner would most certainly need the condominium document’s specified approval process, in the affirmative, to make alterations to the common areas. Commonly, this means the condo owner cannot make or cause to be made any structural additions to his unit or common elements without prior written consent of the Association. In order to gain association consent, it is not uncommon that 75% of the unit owners, together with their respective mortgagees, give written consent. Consent such as this should be recorded in the proper public records. Without such documentation the presumption arises that the proper approval was never received.

A Declaration of Condominium is a requirement of Florida Statutes for the governance of relationships between condominium unit owners and the condominium association. The Declaration of Condominium, courts have observed, is more than a mere contract spelling out mutual rights and obligations of the parties, it assumes some of the attributes of a covenant running with the land, circumscribing the extent and limits of the enjoyment and use of real property. Further, courts have determined that a Declaration of Condominium is strictly construed to preclude any use not explicitly authorized by the Declaration.

Florida courts have uniformly refused to apply estoppel principles to permit alterations of condominium property without written permission of the Association. Not even a favorable attitude of a management firm or board members can justify ignoring the requirements of the Declaration of Condominium, that condo owners obtain the prior written consent of both management and the association before altering the common elements. Courts have interpreted this to mean, even years later, that if the condo owner did not get the proper approval, then she would have to dismantle alterations and return the common area to its original state. Further, no estoppel by silence can arise unless the party asserting the estoppel claim is ignorant of the truth. This is a pretty hard condition to prove, since all condo owners should have signed a document attesting to the fact that they received the condominium documents.

Concluding, unless a condo owner can prove she had the requisite approval to make changes to common or limited common property, the association should be able to force the property returned to its original design.

We at Swimmer Law Associates, P.A., are experienced in issues such as those described above. Should your association face a similar situation, please feel free to contact us for help.