NORMAN H. ROTH, SHIRLEY H. ROTH, ELI SAFFRAN, ANNE W. SAFFRAN, LEO S. WASSNER, PEARL K. WASSNER, JACK MILLER, SHIRLEY MILLER, JACK I. KRAMER, JEANETTE KRAMER, PHILIP BERNSTEIN, CHARLOTTE BERNSTEIN, DAVID BERNSTEIN, AND ELLEN BERNSTEIN, APPELLANTS,
v.
SPRINGLAKE II HOMEOWNERS ASSOCIATION, INC., A FLORIDA CORPORATION NOT FOR PROFIT, APPELLEE
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Unit owners appealed a trial court decision permitting a homeowners association to grant exclusive easements over common areas for patio extensions. The court reversed, holding that the association lacked authority to grant such easements because doing so would divest unit owners of their ownership interests in the common areas without their consent.
The court held that the homeowners association could not grant exclusive easements over the common areas because doing so would materially divest unit owners of their ownership interests in the common areas without the consent of all affected owners. The consent of all 48 unit owners would be required to accomplish such a change.
[1] A homeowners association cannot grant exclusive easements over common areas if such action materially alters the appurtenances to a unit or changes the proportion by whic…
[2] Amendments to declarations of covenants and restrictions that affect the ownership interests of unit owners in common areas require the consent of all affected owners.
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Join FLexlaw to unlock all legal intelligence“a unit owner cannot be divested of his ownership without his consent. The consent of all forty-eight unit owners would be required to legally accomplish what transpired.”
Establishes the core holding that unanimous consent is required to materially alter unit owners' interests in common areas
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Join FLexlaw to unlock all legal intelligenceThe development consisted of 48 units, with warranty deeds and declaration providing that each unit owner held a 1/48 share of common areas and that n…
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LETTS, Judge.
In a struggle between a Homeowners Association and certain unit owners, the latter group appeals the trial court’s decision to permit the grant of exclusive easements over the Common Areas. We reverse.
The development in question is not of the condominium variety. The warranty deeds to the forty-eight units all contain the language, “together with a ¼8⅛ share of the Common Areas.” Similar language appeared in the declaration. In addition, the declaration provided that “[no] fence, wall or other structure shall be erected or maintained upon any portion of the common areas by any lot owner.”
Despite the quoted language above, the trial court upheld an amendment to the declaration, approved by three quarters of the owners, which gave the Homeowners Association authority to grant exclusive easements to allow patio extensions as an adjunct to particular units, over and upon the common areas. We conclude that this was improper. As we have already said, this is not a condominium development, yet a close parallel can be found under section 718.110(4), Florida Statutes (1987), which provides as follows:
Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the owner of the parcel shares the common expenses and owns the common surplus unless the record owner of the unit and all record owners of liens on it join in the execution of the amendment and unless all the record owners of all other units approve the amendment.
Needless to say, the statute is not applicable here. Yet its content comports with basic law. Under the facts presented, a unit owner cannot be divested of his ownership without his consent. The consent of all forty-eight unit owners would be required to legally accomplish what transpired. The Homeowners Association “could convey no greater interest in the property than [it] owned.” Kern v. Weber, 155 So. 2d 619 (Fla. 3d DCA 1963).
The language of the original declaration sub judice was akin to subdivision restrictions which normally cannot be amended without the consent of all the property owners. Harwich v. Indian Creek Country Club, 142 So. 2d 128 (Fla. 3d DCA 1962). “That residential lot owners are the beneficiaries of restrictive covenants is well settled.” Gercas v. Davis, 188 So. 2d 9, 11 (Fla. 2d DCA 1966); Moore v. Dykes, 225 So. 2d 455 (Fla. 1st DCA 1969); also see Downey v. Jungle Den Villas Recreation Association, 525 So. 2d 438 (Fla. 5th DCA 1988).
We, therefore, hold that the Homeowners Association could not grant exclusive easements over the common areas and this cause is reversed and remanded for entry of a judgment in conformance herewith.
Without comment, we reverse the award of attorney’s fees.
REVERSED AND REMANDED.
DOWNEY and STONE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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S & T Anchorage, Inc. v. Lewis, 575 So. 2d 696 (Fla. 3d DCA 1991)…8 So. 14 (1931); Sudduth v. St. Andrews Bay Community Hotel Corp., 99 Fla. 151, 126 So. 302 (1930). The articles and bylaws must be consistent with the provisions of the superior document, the Declaration. See Roth v. Springlake II Homeowners Ass’n, 533 So. 2d 819 (Fla. 4th DCA 1988) (approval of each and every lot owner was required, where declaration provided that no structure could be maintained on common areas, to grant easement in contravention to declaration; homeowners’ association could not grant excl…
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Erick van Loan v. Heather Hills Prop. Owners Ass'n, Inc., 216 So. 3d 18 (Fla. 2d DCA 2016)…use there was no express delegation of authority to the HHPOA to amend the restrictive covenants, the restrictive covenants can only be amended by the consent of all the property owners in the subdivision. See Roth v. Springlake II Homeowners Ass’n, 533 So. 2d 819, 820 (Fla. 4th DCA 1988) (explaining that subdivision restrictions “normally cannot be amended without the consent of all the property owners” (citing Harwick v. Indian Creek Country Club, 142 So. 2d 128 (Fla. 3d DCA 1962))). And because the Homeown…
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Palma v. The Townhomes OF Oriole Ass'n, Inc., 610 So. 2d 112 (Fla. 4th DCA 1992)…and Homeowners’ Inc. v. Dade County, 511 So. 2d 1009 (Fla. [*114] 3d DCA 1987) (Covenant which is substantially ambiguous is resolved against the party claiming the right to enforce the restriction). See also, Roth v. Springlake II Homeowners Ass’n, 533 So. 2d 819 (Fla. 4th DCA 1988). Construing the provisions of the documents against the association, we believe that under these circumstances an amendment to the documents required a vote of all the property owners. REVERSED AND REMANDED, for further consiste…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stieglitz v. City Comm'n, 525 So. 2d 438 (Fla. 3d DCA 1988)
- Harwick v. Indian Creek Country Club, 142 So. 2d 128 (Fla. 3d DCA 1962)
- Gercas v. Davis, 188 So. 2d 9 (Fla. 2d DCA 1966)
- Kern v. Weber, 155 So. 2d 619 (Fla. 3d DCA 1963)
- Moore v. Dykes, 225 So. 2d 455 (Fla. 1st DCA 1969)