Question: Recently, my condominium association installed a bike rack and bench on the property. Following the installation, I questioned the board whether these changes should have been approved by 75% of all unit owners. In response, the board stated that our documents allow the board to spend up to 5% of the association’s budget on alterations to the condominium property without additional unit owner approval. Can that be correct? (M.W. by e-mail)
Answer: Possibly. Section 718.113(2), Florida Statutes, states that there shall be no material alteration or substantial additions to the Common Elements or to real property which is association property except in the manner provided by the declaration. If the declaration is silent, the statute states that such changes shall be approved by 75% of the total voting interests of the association. Therefore, while the default position in the statute is that material alterations or substantial additions to the Common Elements or association property must be approved by a 75% vote of the membership, the declaration can provide for other levels of approval.
With regard to what changes are considered material alterations or substantial additions to the Common Elements or association property, the seminal case in Florida is Sterling Village Condominium Association, Inc. v. Breitenbach, which was decided by the Fourth District Court of Appeals in 1971. In Sterling Village, the Court stated that a change was a material alteration when the change “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.” This is still the test used today. Based on the language from the Sterling Village case, the changes referenced in your question would likely be considered material alterations.
However, in order to determine whether a unit owner vote was required, it would be necessary to review the condominium documents. It is not uncommon for such documents to give the board of directors the discretion to make alterations to the condominium property within specific parameters, such as up to a specific dollar limit or a specific percentage of the association’s budget. The declaration could also provide that when unit owner approval is required, it is not necessary to obtain 75% approval of all unit owners; instead, a lower percentage of approval may be used.
Therefore, depending on the specific language in the declaration of condominium for your association, your board of directors may be correct.