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Who Decides Whether to Build It Higher: The Condominium Community or the Court?

Real Property, Probate and Trust Law

    The board of directors of Wetfoot Condominium Association, Inc., has problems. Wetfoot is a fictitious Florida beachfront condominium constructed in the 1970s. Four ground floor units and the recreation room in the five-story, 28-unit Wetfoot condominium apartment structure were recently inundated by storm water surge for the third time in five years. The ground floor unit owners have notified the board that their units are uninhabitable by reason of susceptibility to flooding, and have demanded that the association raise the beachfront seawall four feet to hold out storm surge. One of the ground floor unit owners is an 82-year-old disabled war veteran who has been forced to move to a homeless shelter. Ten of the 28 unit owners have joined in a letter to the association board objecting to alteration of the seawall. The objectors pointed out that the Condominium Act and Wetfoot’s declaration of condominium both require that material alterations to the condominium property receive approval of 75 percent of the unit owner interests. Their stated reasons for objection were that the ground floor units’ vulnerability to flooding was obvious and readily discoverable by a diligent purchaser and that the upper floor owners should not be burdened with the expense, the impaired beach access, and the change of appearance that would result from raising the seawall.

    Wetfoot’s board is concurrently dealing with the need for a major special assessment to fund reconstruction of concrete balconies that are unsafe due to corrosion of reinforcing bars that support balcony decks, a special assessment which many unit owners say they cannot afford. Who should decide — the condominium community or a court — whether to raise the seawall and what priority this project shall be given?

    Issues Raised by Wetfoot’s Predicament
    • Does the board have authority, pursuant to its duty to maintain the common elements, to make a material alteration or substantial addition to the common elements without approval of the unit owners?

    • If the board possesses authority to proceed unilaterally, do individual board members become liable to the unit owners who sustain damage if the board fails to utilize this authority?

    • Does the condominium association have a duty to make material alterations or substantial additions to the common elements as necessary to preserve the habitability of individual units?

    Board Authority to Proceed Without Unit Owner Approval
    The applicable statute, F.S. §718.113, in separate subsections, imposes the duty of maintaining the common elements upon condominium associations and provides condominium unit owners an unqualified right to approve or to reject proposed “material alterations or substantial additions” (hereinafter “improvements”) to the common elements. Some Florida district court of appeal decisions accord condominium boards a right to proceed with such improvements unilaterally when, in the business judgment of the board, such improvements are necessary or beneficial for the maintenance of the common elements.1 A 2002 Third District Court of Appeal decision2 refused to accept this embellishment upon F.S. §718.113 and declared invalid an assessment to pay for a material alteration to condominium common elements which provided significant maintenance benefits, because the alteration had not been approved by the unit owners.

    The relevant portions of F.S. §718.113 state:

    Maintenance; limitation upon improvement [etc.];
    1) Maintenance of the common elements is the responsibility of the association….

    2) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration. If the declaration does not specify the procedure for approval of alterations or additions, 75 percent of the total voting interests of the association must approve the alterations or additions. (The “otherwise” provisions pertain to flag displays and hurricane shutters.)

    The term “maintenance” is commonly held to mean the action of continuing, carrying on, preserving.3 The accepted judicial definition of “material alteration or addition” was provided by the decision of Sterling Village Condominium, Inc. v. Breitenbach, 251 So. 2d 685, 697 (Fla. 4th DCA 1971), in which the court stated that “the term ‘material alteration or addition’ means to 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.” Note the lack of perfect congruence between the statutory phrase “material alteration or substantial addition” and the above quoted “term” defined in Sterling Village v. Breitenbach. The omission of the word “substantial” from the “term” defined by the Fourth District in 1971 does not appear to have been significant in subsequent published appellate decisions in Florida.4

    Notwithstanding the unambiguous language of F.S. §718.113, the Second District Court of Appeal in Tiffany Plaza Condominium Association, Inc. v. Spencer,416 So. 2d 823 (Fla. 2d DCA 1982), held that if improvements were, in the good business judgment of the association,5 reasonably necessary or beneficial6 for the maintenance of the common elements, the board could assess all unit owners for the improvements notwithstanding a provision in the Tiffany Plaza condominium declaration, which required the written approval of 75 percent of unit owners (which was obtained) but also relieved those who did not approve from payment for the initial cost. The proposed improvement was the construction of a rock revetment on Gulf front beach owned by the association, and the questions before the court were: 1) Are the objecting unit owners to be relieved from the assessment as stated in the declaration?; 2) Are the improvements necessary? The first question was answered in the negative and the second was referred back to the trial court for an evidentiary hearing.

    The Tiffany Plaza decision could have been confined to its facts, but this was not to be. In Ralph v. Envoy Point Condominium Association, Inc., 455 So. 2d 454 (Fla. 2d DCA 1984), the court characterized its holding in Tiffany Plaza as having been: “[I]f work was necessary, board authority was sufficient.”7 The Ralph decision held that the Envoy Point Condominium association board possessed authority, without vote of the unit owners, to construct a 42-inch vertical extension to a seawall and to assess the unit owners for the cost. The court’s stated rationale: “Simply because necessary work for maintenance may also constitute alterations or improvements does not nullify a condominium board’s authority and duty to maintain the condominium common elements.”8 The standard of “necessary work” applied in these two cases was, in fact, a standard that the work merely be beneficial (expressly stated in Tiffany Plaza). In both Tiffany Plaza and Ralph, the improvements by their nature were intended to provide enhanced protection to the common elements from possible future storm damage and reduction of future repair expenses. The “business judgment rule” states, absent special factors such as bad faith, courts will not interfere in the decisions of corporate boards of directors as long as the boards acted in a reasonable manner.9 An action is unreasonable if reasonable persons could differ as to its propriety.10

    While undoubtedly well-intentioned, the Tiffany Plaza and Ralph decisions judicially legislated a material diminishment of condominium unit owners’ statutory right to reject improvements proposed by the association’s board of directors. This was not a proper exercise of the court’s jurisdiction and was likely in excess of it. The Florida Supreme Court has repeatedly admonished: “Courts are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.”11 No court has held the statute to be ambiguous. The reasonable and obvious implications which flow from the plain language of the statutory scheme is that ordinary maintenance and replacement12 of common elements is the purview of condominium boards and that board proposals for improvements to the common elements must be approved by the people who will have to pay for those improvements — the unit owners. The reasonableness of this implication is further demonstrated by the presence in the Florida Constitution of a similar right accorded residents of municipalities to approve or reject proposed municipal capital improvements to be funded with bonded indebtedness secured by ad valorem tax assessments.13

    In 2002, the Third District Court of Appeal declined to follow Ralph. In George v. Beach Club Villas Condominium Assn., Inc., 833 So. 2d 816 (Fla. 3d DCA 2002), the court acknowledged that the condominium association had relied upon the Ralph decision to support the validity of an assessment to pay the cost, already incurred, for substitution of terra cotta tiles for the original cedar shingles on mansard roofs. The court, while noting the lower replacement cost and the maintenance benefits this change provided, nevertheless upheld that portion of the trial court judgment, which declared the special assessment for replacing the mansard roof shingles was invalid because the substitution was a material alteration which required unit owner approval pursuant to F.S. §718.113(2) and that such approval had not been obtained.14 The George decision made no mention of a decision in the prior year by another panel of the Third District Court of Appeal which expressly followed Ralph.15

    The court’s strict reliance in George upon the plain language of F.S. §718.113 was well placed. Condominiums are strictly creatures of statute.16 The Condominium Act establishes procedures for the creation and operation of condominiums.17 The term “maintenance” is a word of common usage and when such words are used in a statute, they should be construed in their plain and ordinary sense.18 “Maintenance” does not appear in F.S. §718.113’s subsection 2, which reserves to the unit owners the unqualified right to reject proposed improvements to the common elements. Conversely, unit owners are not mentioned in subsection 1, which imposes the duty of maintenance of the common elements on the association board. Where the legislature has used a term in one section of a statute but omits it in another section of the same statute, the Supreme Court will not imply it where it has been excluded.19

    Neither side in George sought jurisdiction in the Florida Supreme Court. Although conflict ultimately lies in the eyes of the beholder (the Florida Supreme Court), it would appear that George does expressly and directly conflict with Ralph under the conflict standard articulated in City of Jacksonville v. Florida First National Bank of Jacksonville, 339 So.2d 632, 633 (Fla. 1976); specifically that conflict may exist where a rule of law is applied to produce a different result in a case which involves substantially the same controlling facts as a prior case.

    Board Member Liability
    Assume that Wetfoot is located in the Second Appellate District or any other district where Ralph20 is followed. Combine the board authority to proceed with improvements to the common elements unilaterally, as part of their statutory duty to maintain the common elements, with the statutory provision which renders board members who willfully neglect their duties individually liable to unit owners damaged by such neglect.21 Arguably, a unit owner claiming damage as a result of inadequate common elements would have a cause of action against board members whose votes or abstentions, taken with knowledge of the board’s authority under Ralph v. Envoy Point, caused the neglect of allegedly necessary improvements to the common elements. Such a claim would have to overcome the deficiencies in the Ralph decision, discussed above, and the high barrier to imposition of individual liability upon condominium association directors raised by Florida courts.22 A board member who sought to preserve for the collective unit owners their statutory right to approve such projects will be exposed to personal liability. This unintended consequence of the holdings in Tiffany23 and Ralph24may provide another reason for the Florida Supreme Court to reject those decisions if the occasion arises.

    Is There an Association Duty to Maintain Habitability of Individual Units?
    An expanded statement of this question has two parts: Is the condominium association’s duty respecting the common elements limited to maintaining them in the configuration and to the quality standards provided by the developer, or, can the unit owners collectively, by way of a judgment against their association, be compelled to fund improvements to the condominium property as may be required to restore or to preserve habitability of an individual unit? The Condominium Act does not expressly state that a condominium association has a duty to make improvements to its common elements. Well-established principles of statutory construction and deference to a co-equal branch of government, together with a compelling analogy to the law of municipal corporations, militate against judicial legislation of an association duty to make improvements.

    The principles that apply to the question of the authority of a condominium board to proceed, without unit owner approval, with improvements to the common elements apply with equal force here. Condominiums are creatures of statute.25 Courts are without power to construe an unambiguous statute in a way which would extend its express terms or its reasonable and obvious implications.26 The Condominium Act addresses the subject of habitability of condominium units through a developer warranty of fitness and merchantability for the purposes and uses intended for the individual units and all other improvements27 for the use of the unit owners.28 This has been interpreted to include a warranty that the units are reasonably habitable.29 The Condominium Act declares that board of administration officers and directors have a fiduciary relationship with the unit owners.30 Under this statutory scheme, the association officers and directors, upon turnover of control of the association by the developer to the unit owners, can be expected to investigate the adequacy of the common elements and to timely pursue claims against the developer for correction of inadequacies in the common elements which jeopardize habitability of units. This statutory protection may be frustrated by the failure of defects to manifest themselves within applicable statutes of limitation or repose and by developer insolvency, but such gaps will not justify judicial legislation of an association duty to improve the common elements as may be necessary to ensure habitability of individual units. The courts may not graft onto legislation something that is not there.31

    This is not a question of board authority; it is a question of whether any individual unit owner has a right to compel the condominium association to make improvements to the common elements as necessary to preserve the habitability of his or her unit. Assume that Wetfoot’s board proposed such improvements and the unit owners rejected the proposal. If the language of the Condominium Act is followed, the final decision was made by Wetfoot’s unit owners. If the courts supplement the Condominium Act with a duty upon condominium associations to improve the common elements as necessary to preserve habitability of individual units, the Wetfoot community’s future course will be plotted by a circuit judge or a jury.32 The law of municipal corporations provides a compelling analogy, which would logically deny the courts such a role in the governance of condominium communities.

    Consider the Florida city of X. X has homes on hills and homes down by the creek. X has a drainage system that is adequate most of the time, but not all of the time. The homes on the hills are never flooded. The homes by the creek occasionally are flooded, damaged, and rendered uninhabitable by reason of the inadequate drainage system. When a home buyer comes to town, that buyer must make many choices including those of location and price. If our hypothetical buyer subsequently finds that his or her house by the creek floods due to the city’s inadequate drainage system, the buyer has no cause of action against the city. A governmental entity is not liable for its failure to build, expand, or modernize a capital improvement. A governmental entity’s decision not to build or modernize a particular improvement is a discretionary judgmental function with which the courts cannot interfere.33 Such discretionary functions are inherent in the act of governing.34 On the other hand, once a governmental entity builds an improvement, it has the same common law duty as a private person to properly maintain and operate it.35 If our hypothetical creek side homeowner in X could have demonstrated negligent maintenance by X of its drainage system to be the cause of the homeowner’s losses, his or her claim would be good. Similarly, a condominium association is liable to a unit owner whose unit is damaged by the association’s negligent maintenance of its common elements.36

    Florida’s Condominium Act is analogous to Florida municipal law. This analogy has been recognized by courts.37 Municipalities and condominiums are both creatures of statute.38 Obvious common attributes are defined geographic boundaries, representative forms of governance, power to compel payments from residents to fund maintenance of community property and operations, and the power to impose reasonable regulations governing conduct within the community. As noted above, both municipalities and condominium associations have liability to their respective residents for damages caused by deficient maintenance of existing capital improvements. Municipalities are prohibited by art. VII, §10 of the Florida Constitution from incurring, without a referendum, indebtedness to fund capital improvements secured by pledge of their power to impose ad valorem taxes; similarly the Condominium Act prevents assessment of the unit owners to fund material alterations or substantial additions to the condominium property without unit owner approval, the functional equivalent of a referendum.39

    The congruence of the Condominium Act and the well-settled law of municipal corporations demonstrate that the act is reasonable, logical, and complete with respect to the question of who decides whether the residents are to be assessed for improvements to the common elements. A legislative philosophy that declines to shift to the condominium community the losses associated with a condominium purchaser’s random misfortune or inadequate pre-purchase investigation is not unreasonable, particularly in light of the common law duty imposed upon sellers of Florida residential property to notify buyers of hidden defects known to them.40

    Individual hardship does not create a right to have a court order a municipality to make capital improvements to relieve the plight of some members of the community.41 The Condominium Act imposes no duty upon a condominium association to maintain habitability of units. Absent such a duty, there is no wrong to remedy, as between the unit owner and his or her condominium association, when that association’s members decide not to assess themselves to make improvements to common elements which have proven to be inadequate. It follows that courts lack subject matter jurisdiction to consider claims against condominium associations to compel improvements to its common elements or to award damages by reason of an association’s not having made alterations or additions to the common elements, even if the lack of such improvements leaves an individual unit vulnerable to damage or uninhabitable.42

    Let the Political Process Work
    The Condominium Act became law in 1963.43 Thirty- to 40-year-old condominium buildings such as Wetfoot’s will inevitably need replacement or substantial restoration of essential elements of the building. Boards of administration are duty bound to accomplish such maintenance.44 Replacement and restoration projects typically require special assessments, except in the few instances where adequate reserves have been established. Condominium communities become sharply divided and often dysfunctional when confronted with a combination of large special assessments and the physical disruption associated with the construction activity.45 Another likely problem of older condominium communities will be functional obsolescence of the common elements — the community will lose its appeal despite adequate maintenance. Such obsolescence will necessitate decisions within the community as to whether to assess themselves to upgrade the condominium property in order to maintain its value. At some point in its existence, nearly every condominium community, unless destroyed by disaster, will have to weigh competing courses of action — implementation of substantial improvements to the common elements so as to preserve a community of unit owners who are willing to and financially capable of maintaining the community, or a course of progressive obsolescence and social deterioration leading to abandonment of the structure and ultimately, termination of the condominium.46 These difficult decisions are political decisions to be made by the affected condominium community. The Condominium Act specifies no role for the courts in their resolution other than when vacancies in an association’s board preclude a quorum,47 after a natural disaster when the association board cannot or will not function,48 or if substantial damage to or destruction of the condominium property remains uncorrected after a reasonable time.49

    Consider the possible consequences of a judicial mandate that condominium associations must improve the common elements if necessary to preserve habitability of individual units. Using the situation at Wetfoot as an example, the improvements required to ensure the ground floor units are not periodically flooded might require a special assessment of such magnitude that it would exceed many unit owners’ equity in their units. Those unit owners would be likely to abandon their units to foreclosure. The association may not collect maintenance fees or special assessments due for those units for many months, if not years. The burden on more solvent unit owners would increase; likely some of them would sell out cheaply to less solvent buyers. The resulting owner group may lack the capability of funding the routine maintenance needs of aging common elements and the certain future special assessments to replace or restore portions of the common elements. A well-intentioned court seeking to alleviate the hardship of one unit owner could inadvertently accelerate the collapse of a condominium community. The aphorism “hard cases make bad law” would be demonstrated by such a sequence of events.

    Relief for Unit Owners Whose Units Are Uninhabitable
    The Florida Legislature could provide some form of relief to remote50 purchasers of residential condominium units whose units are not habitable due to inherent, as opposed to maintenance-related, defects in the common elements. One such form of relief would be a provision compelling the association to purchase, at fair market value determined without reference to the lack of habitability caused by the inherent defect, any unit which remains uninhabitable for a specified time period. Such remedial legislation may require inclusion of the sanction of termination of the condominium for failure to complete a compulsory purchase; otherwise a recalcitrant association might seek to avoid its purchase obligation through bankruptcy proceedings.51

    This proposed right of the owner of an uninhabitable unit to “put” the unit to the association, cash out his or her equity, and acquire another home shifts the risk of inherent defects in the condominium property to all the unit owners. This statutory remedy would, in the case of Wetfoot, reduce the emotional pressure on a judge who would find it hard to rule that an 82-year-old disabled veteran should remain homeless; however, it is not a perfect, consequence-free solution. The burden upon the 24 unit owners at Wetfoot who would have to fund the association’s purchase of the four ground floor units while concurrently funding the balcony restoration project may lead to economic collapse of the community and the displacement of many, if not all, of its residents.

    If Wetfoot’s case reaches the Florida Supreme Court, that court would likely rule that Wetfoot’s board, through invocation of the association’s statutory duty to maintain the common elements, cannot lawfully circumvent the statutory right accorded the unit owners to disapprove material alterations or substantial additions to the common elements. Presently, Florida’s district courts of appeal are in conflict on this issue.52

    Neither the Condominium Act nor any appellate level case in Florida imposes a duty upon condominium associations to improve the common elements from their original design and quality if necessary to maintain the habitability of individual units. Judicial legislation of such a duty would displace the community political process mandated by the Condominium Act. Absent a superior constitutional or statutory right, or duty to be sustained, judicial intervention to compel improvements to the common elements would be improper and in excess of the jurisdiction of the court.

    The legislature should consider amending the Condominium Act so as to require an association to purchase a unit which is uninhabitable by reason of inherent defects in the common elements. Such a statutory remedy would reduce the possibility of a court, confronted with a homeless unit owner, fashioning a remedy which would create statewide uncertainty with respect to the clearly articulated rights and duties of condominium associations and unit owners provided by the Condominium Act.

    1 See, e.g., Tiffany Plaza Condominium Association, Inc. v. Spencer, 416 So. 2d 823 (Fla. 2d D.C.A. 1982); Ralph v. Envoy Point Condominium Association, Inc., 455 So. 2d 454 (Fla. 2d D.C.A. 1954); and Reuter v. Courtyards of the Grove Association, 785 So. 2d 687 (Fla. 3d D.C.A. 2001).
    2 George v. Beach Club Villas Condominium Association, Inc., 833 So. 2d 816 (Fla. 3d D.C.A. 2002).
    3 The American Heritage Dictionary of the English Language, Houghton-Mifflin Company, 1981.
    4 See, e.g., Islandia Condominium Association v. Vermut, 501 So. 2d 741, 743 (Fla. 4th D.C.A. 1987).
    5 More specifically, the association board.
    6 Tiffany Plaza, 416 So. 2d at 826.
    7 Ralph, 455 So. 2d at 455.
    8 Id.
    9 See Farrington v. Casa Solana Condominium Association, Inc., 517 So. 2d 70, 72 (Fla. 3d D.C.A. 1987).
    10 Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
    11 See McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla. 1998); Public Health Trust of Dade County v. Lopez, 531 So. 2d 946, 949 (Fla. 1988); and Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).
    12 Common usage includes replacement within the definition of maintenance; you don’t repair a burned out light bulb. See Fla. Stat. §§718.111(4) and 718.112(2)(f)(2).
    13 Fla. Const. art. VII, §10.
    14 For an understanding of the complications which attend a failed special assessment for completed work on condominium common elements, see Four Jays Construction, Inc. v. Marina at Bluffs, 846 So. 2d 555 (Fla. 4th D.C.A. 2003).
    15 Reuter v. Courtyards of the Grove Association, 785 So. 2d 687 (Fla. 3d D.C.A. 2001).
    16 See Woodside Village Condominium v. Jahren, 806 So. 2d 452, 455 (Fla. 2002); Century Village, Inc. v. Wellington, etc., 361 So. 2d 128, 133 (Fla. 1978).
    17 Fla. Stat. §718.102(2) (2005).
    18 See Florida Dept. of Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954, 961 (Fla. 2005); Francis v. State, 808 So. 2d 110, 138 (Fla. 2001).
    19 See Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995).
    20 Ralph, 455 So. 2d 454 (Fla. 2d D.C.A. 1984).
    21 Fla. Stat. §718.303(1) (2005).
    22 See Sonny Boy, L.L.C. v. Asnani, 879 So. 2d 25 (Fla. 5th D.C.A. 2004); but see Judge Sharp’s dissent at 879 So. 2d at 30.
    23 See note 1.
    24 Id.
    25 See note 15.
    26 See note 11.
    27 “Improvements” in the developer warranty statute means structural enhancements to real estate, not the shorthand term for material alteration or substantial addition utilized in this article. See Black’s Law Dictionary, sixth ed.
    28 Fla. Stat. §718.203(1) (2005).
    29 See Schmeck v. Sea Oats Condominium Ass’n, Inc., 441 So. 2d 1092, 1097 (Fla. 5th D.C.A. 1983).
    30 See Fla. Stat. §718.111(1)(a) (2005).
    31 See Public Health Trust of Dade Cty. v. Lopez, 531 So. 2d 946, 949 (Fla. 1988).
    32 Breach of statutory duty to maintain is negligence. See Coronado Condominium Association, Inc. v. Scher, 533 So. 2d 295 (Fla. 3d D.C.A. 1988).
    33 See Trianon Park Condominium Ass’n, Inc. v City of Hialeah, 468 So. 2d 912, 920 (Fla. 1985); Birge v. City of Eagle Lake, 614 So. 2d 550, 551 (Fla. 2d D.C.A. 1993).
    34 Trianon Park, 468 So. 2d at 918 (citing Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1020 (Fla. 1979)).
    35 Id. at 921.
    36 See, e.g., Coronado Condominium Ass’n v. Scher, 533 So. 2d 295 (Fla. 3d D.C.A. 1988).
    37 See Shorewood West Condominium Association v. Sadri, 92 Wash App. 752, 756, 966 P.2d 372, 374 (Wash. App. Div. 2 1998). The Florida Supreme Court relied on municipal cases in its seminal decision in White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979).
    38 See City of Miami v. Stewart, 104 So. 2d 70, 72 (Fla. 1958); Woodside Village Condominium v. Jahren, 806 So. 2d 452 (Fla. 2002).
    39 Fla. Stat. §718.113(2) (2005).
    40 See Johnson v. Davis, 480 So. 2d 625, 629 (Fla. 1986).
    41 Trianon Park, 468 So. 2d 912 (Fla. 1985).
    42 A caveat: If the community decision not to make such alterations or additions to the common elements can be shown to have been in derogation of a constitutional or superior statutory right, subject matter jurisdiction to consider such claim may exist. See Woodside Village Condominium, Inc. v. Jahren, 806 So. 2d 452, 463 (Fla. 2002) (stating that there is doubt whether the actions of a condominium association constitute the state action necessary to support a constitutional claim).
    43 Ch. 63-35, Laws of Florida (1963).
    44 Fla. Stat. §§718.111(4) and 718.113(1) (2005).
    45 See, e.g., Waveney Ann Moore, Legal Storm Brews at Condo, St. Petersburg Times, June 18, 2006, available at
    46 Termination procedure is provided by Fla. Stat. §718.117. Voluntary termination requires consent of 100 percent of unit owners. This permits “holdouts” to prevent the sale of a deteriorated condominium community to a redeveloper and may prevent realization of maximum value for all unit owners.
    47 Fla. Stat. §718.1124 (2005).
    48 See Fla. Stat. §718.117(4) (2005), which is predicated upon a natural disaster. It would seem that the legislature, in light of the current proclivities of terrorists, should broaden this predicate.
    49 Fla. Stat. §718.118 (2005).
    50 Purchasers other than first purchasers from the developer. First purchasers have the benefit of the developers warranty. See note 27.
    51 Bankruptcy is available to condominium associations. See, e.g., In re Bayshore Yacht & Tennis Club Condominium Association, Inc., 336 B.R. 866 (Bkrtcy. S.D. Fla. 2006); Matter of Condominium Association of Plaza Towers South, Inc., 43 B.R. 18 (Brtcy. S.D. Fla. 1984).
    52 See notes 1 and 2.

    William C. Ballard is of counsel to Fisher & Sauls, P.A., in St. Petersburg. He received his B.S. from the U.S. Naval Academy and his J.D. from the University of Florida College of Law. He is experienced in condominium litigation, representation of associations and contractors in construction claims, and claims against associations relating to inadequate common elements.

    This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Rohan Kelley, chair, and Richard R. Gans and William P. Sklar, editors.

Real Property, Probate and Trust Law