Laguna Tropical, a Condominium Association, Inc. v. Barnave , 2017 Fla. App. LEXIS 732 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed January 25, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1531
Lower Tribunal No. 13-16460
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Laguna Tropical, a Condominium Association, Inc.,
Appellant,
vs.
Katia Marie Barnave,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Robert C. Eber, for appellant.
The Strauss Law Firm, and David A. Strauss (Fort Lauderdale), for appellee.
Before WELLS, SALTER and LOGUE, JJ.
SALTER, J.
Laguna Tropical, a Condominium Association, Inc. (“Association”), appeals
a final judgment in favor of a condominium unit owner, Ms. Barnave (“Owner”),
and her tenant, Ms. Garcia (“Tenant”). The Association sought injunctive and
other relief to enforce provisions of certain rules and regulations applicable to the
94 units in the condominium development under the recorded Declaration of
Condominium. We reverse the final judgment and remand the case to the trial
court for enforcement of the applicable rules as against the Owner, the Tenant, and
the condominium unit.
Flooring and Noise
The applicable rule is captioned “Noise.” It states, in pertinent part:
Unless expressly permitted in writing by the Association, no floor
covering shall be installed in the units other than any carpeting or
other floor covering installed by the Developer. In any event, each
unit owner shall have the duty of causing there to be placed
underneath such floor covering, so as to be beneath such floor
covering and the concrete slab,[1] generally accepted and approved
materials for diminution of noise and sound, so that the flooring shall
be adequately soundproof.
Another provision, this one in Article X, Paragraph D of the recorded
Declaration of Condominium, prohibits a unit owner from altering, modifying or
replacing the interior of a unit without the prior consent of the Association’s Board
of Directors. Paragraph B of that Article further requires that maintenance, repairs,
and replacements within a unit’s interior “shall be done without disturbing the
rights of other unit owners.”
1 The provision only makes sense if the padding would be placed beneath the
carpeting but above, not beneath, the concrete slab, or “between,” not beneath the
carpeting and slab.
2
In 2010, the Owner concluded that it would be necessary to replace the
carpeting in her unit. A previous tenant had allowed a pet (prohibited by the rules
and regulations, but kept in the unit without the Owner’s knowledge) to ruin the
original carpet. The Owner replaced the soiled carpeting with laminated flooring.
In 2011, the resident in the unit below the Owner’s second-story unit
complained that the noise was disturbing his occupancy. Ultimately, the
downstairs resident complained to the Association that the Owner and Tenant were
in violation of the rules and asked the Association to enforce the noise and
carpeting provisions. After a written notice by the Association, exchanges of
letters, and an unsuccessful mandatory alternative dispute resolution process before
the Division of Florida Condominiums,2 the Association filed a lawsuit against the
Owner and Tenant to enforce the flooring restrictions.
Selective Enforcement; Prior Written Approval
In the pleadings, at trial, and here, the Owner asserted affirmative defenses
alleging (1) “selective enforcement” of the flooring restrictions and (2) an alleged
approval of the laminated flooring by the president of the Association. The Owner
assumed the burden of proof as to each of these issues. The trial court found the
2 § 718.1255(4), Fla. Stat. (2013). The parties engaged in a further unsuccessful
attempt to mediate the dispute before the non-jury trial.
3
selective enforcement defense to be well taken, and entered a final judgment in
favor of the Owner. This appeal ensued.
The interpretation of the statutes, rules, and declaration of condominium
provisions are reviewed here de novo.3 The Owner’s selective enforcement
defense asserts that the Association only actually enforced the flooring (carpeting)
restriction as against eleven of the condominium development’s 94 units. It is
undisputed, however, that those eleven units were the only exclusively upstairs
units. Eleven other units were exclusively downstairs units below the upstairs
units, while the remaining 72 units were configured to include both first-floor and
second-floor residential space within the same unit.
The record also (and predictably) includes no evidence that occupants of the
72 upstairs-downstairs units ever complained to the Association about the noise
coming from upstairs, since they owned or leased the upstairs portion of the same
unit. Further, there were a handful of prior noise complaints by downstairs-only
occupants below upstairs-only units that had culminated in successful enforcement
action by the Association (i.e., the replacement of prohibited tile or wood flooring
in the upstairs-only unit by the specified carpeting and underlying “generally
accepted and approved materials for diminution of noise and sound”). Finally,
3 “Hence, because condominiums are a creature of statute courts must look to the
statutory scheme as well as the condominium declaration and other documents to
determine the legal rights of owners and the association.” Woodside Vill. Condo.
Ass’n v. Jahren, 806 So. 2d 452, 454 (Fla. 2002).
4
there was no evidence that the Association had declined to enforce a noise
complaint regarding a downstairs-only unit based on a replacement of carpet with
tile or wood flooring.
This case is readily distinguishable from the selective enforcement cases
relied upon by the appellees. In Prisco v. Forest Villas Condominium Apartments,
Inc., 847 So. 2d 1012 (Fla. 4th DCA 2003), for example, an association bylaw
prohibited any pets other than fish or birds. A unit occupant who kept a dog in her
unit was sued by the association to enforce the bylaw. The unit owner submitted
evidence that another owner kept two cats on the premises, and other occupants
also kept cats within their units. The trial court granted summary judgment for the
Association on “selective enforcement,” concluding that there were rational
differences regarding enforcement as against cats versus dogs (“[d]ogs clearly
bark, cats do not, dogs need to be walked outside of their home, cats do not as they
use litter boxes for the most part,” as the trial judge found). Id. at 1014. The
Fourth District reversed and remanded:
The restriction is clear and unambiguous and states that, other than
fish and birds, “no pets whatsoever” shall be allowed. The fact that
cats are different from dogs makes no difference. What does matter is
that neither a cat nor a dog is a fish or a bird, so both should be
prohibited.
Id. at 1015.
5
In the present case, the prohibition on floor coverings other than padded
carpet is plainly intended to avoid noise complaints. No selective enforcement was
proven, as no complaints have been shown to have arisen regarding any units
except second-floor only units like the Owner’s unit. It cannot be said that the
enforcement action in the present case “constituted unequal and arbitrary
enforcement of the restriction.” White Egret Condo., Inc. v. Franklin, 379 So. 2d
346, 352 (Fla. 1979).
The Owner also argues that the Association president confirmed in an
exchange of emails that the Owner’s laminated wood flooring was acceptable.4
This argument likewise fails, as the rules and declaration of condominium plainly
require consideration and written approval by the Association’s board of directors,
not merely one of its officers. Curci Vill. Condo. Ass’n, Inc. v. Maria, 14 So. 3d
1175 (Fla. 4th DCA 2009) (condominium association not estopped from enforcing
a restriction where written consent was not obtained from the board of directors (as
specified), as opposed to a verbal consent from the president). The record in the
present case contains no delegation by the Association of authority to approve
installations of the kind involved in this case by its president. The Owner admitted
that she did not submit a request for approval of the wood flooring to the
Association’s board.
4 This testimony was disputed, and the Owner did not introduce into evidence the
alleged emails, as her computer had crashed.
6
For all these reasons, we reverse the final judgment in favor of the Owner
and remand the case for enforcement of the flooring restrictions as sought by the
Association.
7