Q&A: No Vote on New Lobby Décor

Q&A: No Vote on New Lobby Décor
Q 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

A “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.”