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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).

 

 

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4 Comments
  • Avatar
    Ann Allen
    May 25, 2010

    Can a home owners association, board of directors, treat different communities in the master association differently? If a master association is composed of several smaller communities that have their own association dues in addition to dues for a master association, can the master board provide a different level of security, and other services if all communities pay the same dues to the master association? Can the master board discriminate against one community and not provide security or other services if that community pays the same dues as other communities?

  • Avatar
    Alice
    November 14, 2010

    Has anyone ever had an issue with a condo association over the installation of a removable child safety gate on their townhouse unit? The rules and regs are very broad and states that no changes are to be made without condo approval. However, this gate was installed several years ago and no mention of an issue until now (4 years later). It is a safety issue as our townhouses sit on a canal. There are several units with safety gates as well.
    RESPONSE: Architectural control powers are set forth in the governing documents. Enforcement is up to the board of directors of the association. I recommend hiring counsel if you intend to challenge the association’s enforcement of the architectural control provisions.

  • Avatar
    Lyne Melancon
    February 7, 2011

    we are 40 units in our building and we are around 10 units of french canadian. We would like to have a satellite to have more chanels in our unit. The association install a satellite with shaw direct and we can have 5 chanels only. Last year we ask and they said no. And this year we ask and they still said no. The other unit use cable concast but it is only in english. We ask concast to add french channels and they said no. Each unit as a space for his air conditioner, so if we have a piece that we are owner can we place a satellite on the air conditionner.
    RESPONSE: The association is within its right to deny your request for a satellite dish. I know of many associations that have allowed an owner to install one dish for the community and run the wiring to several units – all at the expense of those owners of course.

  • Avatar
    jeff
    May 21, 2011

    Has anyone ever had an isssue where there is a delinquent owner in a building-significant arrears of common expenses. The unit remains in the state delivered by the developer to the owner-“decorator ready”-with unfinished cement floors etc. The owner has however allowed occupants to reside in the unit on unfinished floors causing noise transmission and nuisance etc. The condominium declaration clearly states that “floors shall always be covered either with wall to wall broadloom or tiling with required soundproofing…” The Association only after several requests by the owner affected by the noise issued a letter to the owner rquesting compliance, but the defaulting owner has done nothing. The Association refuses to take any further action-arbitration or otherwise. The indication being that you can’t prevent someone from living on unfinished floors. This is clearly inconsistent with the terms of the declaration. Does the Association not have an obligation to take steps to require owners to comply with the declaration. If the owner(s) affected are left with no alternative but to go to court (as the summary arbitration proceedinds would not be aavailable to them as petitioners) would they have any claim against the Association for failing to take steos itself to require compliance with the declartion.
    RESPONSE: From what you’ve said it seems like the developer (or related entity) still has involvement with building operations. Management is so wrapped up with emergencies sometimes that dealing with nuisance issues isn’t the priority. Nonetheless, it IS the priority for owners and a unit owner board should be strongly encouraged (if not compelled) to take appropriate action.