In Re: Petition For Arbitration: Cypress Bend IV Condominium Association, Inc., v. Cheryl Pepper and Richard Frisbie, Arbitration Case No. No. 00-0417 (Final Order 6/26/00)
A. Facts:
In this case, the Cypress Bend IV Condominium Association (“Association”) filed a petition for arbitration against unit owners Cheryl Pepper and Richard Frisbie (“Respondents”). The Association alleged that the Respondents violated Article XIII, Section E of the Declaration of Condominium (“Declaration”) and Federal Law by installing a satellite dish on the common element roof of the condominium building. As relief, the Association sought the removal of the satellite dish from the common element roof. The Respondents admit they have installed the satellite dish upon the common elements, however, they claim that the Association has allowed other unit owners to install satellite dish antennas on the roof. Thus, the Respondents assert several defenses, including the affirmative defenses of selective enforcement and estoppel. The Respondents also argued t hat the Association, in prohibiting the placement of the satellite dish upon the common element roof, frustrated the purpose and intent of the Federal Telecommunications Act of 1996. The Association denied that it has ever allowed satellite dish antennas to be placed upon the condominium roof and submitted photographs of the roof showing no such satellite dishes. The Respondents claimed that satellite dish antennas did previously exist but that the unit owners had removed them in response to the Association’s attorney’s demands for removal.
B. Issue:
Whether a Condominium Association may restrict the placement of satellite dish antennas upon association common property?
C. Holding:
Yes.
D. Rationale:
The Arbitrator ruled that the Respondents admitted to installing and maintaining a satellite dish on the roof of the building, which is a part of the common elements. Therefore, by installing and maintaining the satellite dish on the roof, the Respondents violated Article XIII, Section E of the Declaration which provides in part: “No Apartment Owner shall erect any exterior antennas or aerials upon his Apartment or the Common Elements; and no Apartment Owner shall cause anything to project out of any window or door except as may be approved in writing by the Association.” Additionally, there was no evidence presented to support the Respondents’ allegations that the Association approved such installation or that they had selectively enforced this provision. Finally, the Respondents argued that their unit contained no separate patio or other limited common element upon which they could place their satellite dish. They claimed that the inability to place the dish upon the common property resulted in their inability to receive access to television signals and contended that, as such, the Association was frustrating the purpose and intent of the Telecommunications Act of 1996. The Arbitrator concluded that while a unit owner may have the right to own a satellite dish, there is no right of a unit owner to install the dish on the general common elements of the condominium. The Respondents were ordered to remove the dish from the condominium roof and to restore the area to its prior condition; failing which, the Association was empowered to remove the dish, restore the area and bill the cost of removal and restoration to the Respondents. In support of its findings, the Arbitrator cited FCC Rule 98-273 and Egret Pointe Condominium Association, Inc. v. Luciano, Arb. Case No. 99-0598, Summary Final Order (August 1999).
