A condo complex’s major renovation includes flooring, paint, furniture and art. Is a single resident vote OK for the entire project, or does each facet require approval?
NAPLES, Fla. – Question: The condominium facilities committee has recommended some major changes to our common areas, including new flooring, paint, furniture, and wall art. The cost will be roughly $100,000. Do the owners need to vote on each change, or can all changes be approved with a single vote? – R.R., Treasure Coast
Answer: The default rule in Florida is that material alterations in a condominium must first be approved by the unit owners. Specifically, Section 718.113 provides that at least 75% of the total voting interest must approve a material alteration unless the condominium documents provide for a different threshold.
The term “material alteration” is also very important and is generally defined as a palpable or perceptive change in the use, function or appearance of the common elements or association property. This means that the default rule is that changing the paint color in the lobby must first be approved by at least 75% of the entire voting interest.
The good news (for many of you) is that most of your condominium documents provide a different procedure. Most condominium associations and developers now realize that it is impractical and expensive to pursue a vote of the owners for small or insubstantial changes. As a result, the first part of this answer is that you first need to determine whether your condominium documents require a vote in the first place for the changes referenced in your question.
Some documents focus on the cost of the entire project. Thus, if your documents only require a vote for projects costing at least $150,000, then the entire project here could be approved at the Board level alone. Conversely, if your documents require a vote for projects costing at least $50,000, then you either need to reduce the scope of the project or seek a vote of the owners. If a vote is required, it is specific to your condominium documents and is generally less than 75% of the entire voting interest.
Some documents also focus on the cost of specific changes. Thus, depending on the language in your particular condominium documents, the analysis could shift to whether the furniture, or the paint, or the flooring, independently exceed a minimum threshold triggering prior approval by the members.
Next, assuming that a vote is required, you could choose to either pursue a single vote for all alterations, or you could choose to pursue separate votes for each item. The advantage of the latter is obviously that you can theoretically obtain approval for most of the alterations if there is one controversial alteration that could jeopardize the entire alteration project.
Either way, I typically recommend including language that also provides some discretion to the board. Sometimes this means including a graphical depiction from the designer and seeking a vote to authorize the board to substantially comply with the graphical depiction and authorizing the board to exercise limited discretion with respect to materials, location and decor.
You can imagine that it would be easy to include paint and flooring specifications in a vote, but you may not have the exact armchair or throw pillow selected at the time of the vote, meaning that the board typically needs some discretion for minor decisions and that discretion should be included in the vote.
In addition, if there is a shortage of materials, you would want to provide the board with some discretion to pick a very similar material or color to avoid the project being delayed due to material availability.
Ultimately, we highly recommend you consult with a Florida licensed attorney to review your specific condominium documents, the specific changes the board wants to pursue and making a recommendation which is specific to your condominium.
This may include first pursuing an amendment to your documents to clarify whether a vote is required or to change the threshold to approve a material alteration project, or it could mean obtaining opinions from licensed contractors to determine whether a proposed alteration is also an exception to the statute or covenant requiring owner approval such as alterations which are necessary for the preservation or protection of the condominium.
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Copyright © 2021 Journal Media Group. Steven J. Adamczyk, Esq., is partner of the law firm Goede, Adamczyk, DeBoest & Cross.