Material Alterations: The Board May Not Have Final Say Over Changes to Condominium Common Elements
Is your association thinking of making a few updates to the condominium as part of its next project? Perhaps changing the exterior color of the buildings or replacing carpet in the clubhouse with tile? Before making any changes or additions to the common elements or association-owned property of a condominium, keep in mind that the Board may not have the final say in whether those changes can be made. The Florida Condominium Act provides that a condominium association may not make “material alterations or substantial additions” to common elements or association property except as provided in the Declaration of the Condominium, and if the Declaration is silent on the approval required, then 75% of all of the voting interests of the association must approve the changes or additions.
The leading case on the issue states 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 function, use or appearance.” Disputes over whether a particular change or addition is “material” or “substantial” and trigger the member vote requirement are regularly submitted to arbitration with the Division of Florida Condominiums, Timeshares, and Mobile Homes, resulting in a number of decisions where arbitrators have broadly interpreted this definition. For example, the installation of a pool heater, changing of exterior or interior paint color, and substitution of a concrete slab for stepping stones have all been interpreted by Division arbitrators to be “material alterations” or “substantial additions.”
There are, however, a few exceptions to the statutory member vote requirement. For example, where an improvement is required to comply with a local ordinance or where the exact or similar replacement of a particular improvement is not available, a member vote may not be required. In addition, where changes are necessary to fulfill the Board’s duty to maintain, repair, preserve, and/or replace the common elements, a member vote may not be required. For example, where an association constructed a sea wall where there had been a noticeable loss of beach front property, and where an association made changes to common elements necessitated by criminal intrusions, Division arbitrators found that such changes could be made without member approval.
The bottom line is that while many changes or additions to the common elements or association property of a condominium will be considered either a material alteration or substantial addition, and may (unless your documents provide otherwise) require the approval of 75% of the voting interests, there are exceptions. Whether a proposed change or addition is material or substantial, or whether it fits within one of the existing exceptions, will need to be evaluated on a case by case basis, and if a board intends to rely upon one of the exceptions or exclusions, the basis for the Board’s decision and the claimed exception should be well-documented and supported, including by written expert opinion if necessary. If you have any questions about whether your next project would constitute a material alteration and requires a unit owner vote, contact your Community Association Attorney for guidance.