Several factors must be considered when considering changes to condominium property, whether unit
or common area changes.
An alteration to any part of the condominium property (common, limited common or unit), may require a Town
of Jupiter building permit. According to Florida Building Code (FBC) 105.1, permits are required for work exceeding
$500 as follows:
Any owner or authorized agent who intends to construct, enlarge, alter,
repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair,
remove, convert or replace any required impact-resistant coverings, electrical, gas, mechanical or plumbing system, the installation
of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official
and obtain the required permit.
Florida Business Code Section 105.2 lists work that is exempt from a permit.
A copy of FBC Sections 105.1 and 105.2 can be downloaded from the following link:
FL Building Code Section 105
Changes within the Condominium Association must be approved by a percentage of owners as
- 75% -- To amend the Declaration of Condominium
- 80% -- To amend the Association's
- 80% -- To materially alter the Association's Common Elements
- Majority of Board Members
-- To amend the Rules
The hierarchy of documents is as follows: Declaration --> ByLaws --> Rules.
This means that Rules and ByLaws must be consistent with the Declaration.
Changes to the Common Elements are known as Material Alterations (requiring 80% owner approval),
and changes to an Individual Unit may or may not require Board approval, depending on the type of change.
Material Alteration is defined as any change or addition that
significantly alters the make up or appearance of the Condominium. This includes, but is not limited to, the addition
or removal of sidewalks, spas, waterfalls, lake water fountains, building lattice, tennis courts, bocce ball courts, horseshoe
courts, et cetera, as well as changing the paint color of a building. Condominium owners purchased their units
based on the current condition of the community, and they are protected against any major physical change affecting
their lifestyle, surroundings or maintenance fees. Further information on Common Area Alterations is provided below.
Unit Alterations are changes to that part of the condominium property
which is subject to private ownership. According to Jupiter Bay's Condominium documents and Florida statutes, individual
condominium units can be altered by the unit owner as long as the change does not impact: the common elements, limited common
elements, structure and safety of the unit, or the condominium unit's neighbors. The Unit Alteration Approval
Form is used for obtaining Board approval for changes and improvements to individual condominium units. This form
was not designed for minor interior unit changes not requiring a town permit. See the Unit Alterations
Common Area Alterations
The following paragraphs clarify what is meant by Material Alteration of the Common Elements
of the Association:
| Declaration of Condominium
- The Declaration's purpose is to define:
- What the Association is,
- How it can be used,
- How it can be changed,
- How it is sustained/funded, and
it can be dissolved.
The Jupiter Bay developer's (and the Declaration's) intent is to ensure that Jupiter Bay
is preserved, maintained and improved so as to make it a stable and desirable place to live and invest. One of the key
provisions to accomplish this is to clearly define procedures to be followed in changing common elements. Jupiter
Bay's Declaration does this, and the following sections will show specific change requirements and restrictions.
Maintenance: Paragraph 6.2 (a) says that "maintenance and operation of the common elements shall be
the responsibility of the Association". This clearly grants the Association the authority to mow the lawn, repair the
parking lots, paint the buildings, maintain the landscaping, etc. This is entirely separate from the Association's authority
to make changes to common elements - i.e., mowing the lawn does not deviate from the developer's design and plan for Jupiter
Alteration and improvement: Paragraph 6.2 (b) says that "After the completion of the improvements included
in the common elements of this condominium contemplated by this Declaration, there shall be no alteration nor further improvement
of the real property constituting said common elements except in the manner and on the conditions set forth in Paragraph
6.1 (c) of this Declaration of Condominium." In other words the developer is saying that after their job is finished
and "improvements are completed", the Association is restricted from making changes.
Impact on Rights of Owners: Paragraph 6.2 (b) goes on to say that "Any such alteration or improvement
shall not interfere with the rights of any owner without their consent". Furthermore it says that "The cost
of such work shall not be assessed upon the unit owner's [financial sponsor] unless the owner shall approve the alteration
or improvement." This language most clearly requires owner participation and approval in changes to common areas. It
belies the idea that a single vote of board members can sanction common area changes.
|Conditions for Changing Common Elements:
Paragraph 6.2 (b) says that common elements can only be altered
and improved after the conditions set forth in Paragraph 6.1 (c) are met. Paragraph 6.1 (c) defines these conditions as follows:
"Any change, alteration, addition or deletion ... may be made only after obtaining in writing the following approvals
in the following order:
- Not less than eighty percent (80%) of the Directors of the Condominium Association at a meeting
called for that purpose: and
- Not less than eighty percent (80%) of the owners of all of the condominium units governed
by the Association at a meeting called for that purpose; ..."
Sole Reliance on Board Member Approval: By requiring 80% owner approval for common element changes, the developer
was protecting owners from changes that a prejudiced board may contemplate. With the difficulty that most Associations have
getting owners to serve on the Board of Directors, nearly all candidates get elected. With Jupiter Bay's five-member board
(as defined in paragraph 4.1 of the by-laws), any three candidates with a common agenda, could make any common area changes
that they want as long as they're within the annual budgeting restrictions (15% growth). At our $1.8 million budget, this
means that the BOD could authorize a $270,000 change to common elements without any owner input or concurrence (vote). This
is certainly not what the developer had in mind, and it would of course be absurd for the Condominium Documents to allow this
(which they don't).
Owner Impact: The Declaration is very clear on concerns related to "owner impact". Changes to common
areas impact all owners and can change the culture/environment of the association. By making changes this significant and
possibly this costly (up to $270,000) without 80% owner approval, the BOD would be acting irresponsibly. Remember that the
budget just requires BOD, and not owner, approval.
Literal Interpretation: The alteration and improvement restrictions of Paragraphs 6.1 and 6.2 are to
be taken literally. Other sections of Jupiter Bay's Declaration of Condominium have been interpreted literally by courts.
In fact the Paragraph 10.1 which says "Leasing or renting of a condominium unit by a Unit Owner is permitted" has
been interpreted as: Jupiter Bay cannot impose rental restrictions, perform renter background checks or charge a transfer
fee. All that the courts allow is for us to know who's in our units and what vehicles are parked in our lots.
Historical Precedent: The Jupiter Bay Condominium Association has always interpreted our Declaration of Condominium
as requiring an 80% vote for common element changes. We used this requirement in determining whether we have a lake water
fountain, an association clubhouse, or other common features/items. Many/most owners are aware of this requirement and would
take issue with the BOD's independent action. This could result in community unrest, owner infighting and possibly lawsuits.
|Florida Condominium Statute:
FL Statute 718.113 (2) (b) says that: "There shall not be any material
alteration of, or substantial addition to, the common elements of any condominium operated by a multi-condominium association
unless approved in the manner provided in the declaration of the affected condominium or condominiums as originally recorded
or as amended under the procedures provided therein. If a declaration as originally recorded or as amended under the
procedures provided therein does not specify a procedure for approving such an alteration or addition, the approval of 75
percent of the total voting interests of each affected condominium is required. This subsection does not prohibit a
provision in any declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures
provided therein requiring the approval of unit owners in any condominium operated by the same association or requiring board
approval before a material alteration or substantial addition to the common elements is permitted."
This 75% default
value for owner approval of common area changes shows that it's typical for condominium documents to require such approval.
Obviously the developer(s) of Jupiter Bay were even more intent in keeping the common areas as originally established in that
they set the approval value at 80%.
Conclusion: All owners or prospective owners are provided information about Jupiter Bay and have
access to Jupiter Bay's Condominium Documents. The documents assure them that "what they see is what they get" and
that Jupiter Bay won't change appreciably without their input. This assurance is essential in protecting current and future
1. Unit owners have exclusive possession and use of their condominium units, and they own a proportional (undivided) share
of the common elements.
2. Owners can do whatever they want within their unit as long as:
- It's legal - They
are complying with the law. (e.g., building codes).
- It doesn't interfere with the rights of other owners.
does not compromise the integrity or safety of the unit.
3. Unit Alteration Approval (usually requires a building
permit). It includes:
- Changes to the adjacent common elements (windows, screen doors, hurricane shutters).
to limited common elements - Patios (Screening, colors, floor covering, glass enclosures)
- Material alteration of Unit
(moving of walls, hard surface flooring, moving water/sprinkler lines, etc.)
- Like kind replacement does not constitute
alteration (similar to common element alteration).
4. Per Paragraph 2.9 of Jupiter Bay's Declaration:
Condominium Parcel means a unit together with the undivided share in the common elements which is appurtenant to the
(a) Each condominium parcel is deemed a separate parcel of real property, the ownership of which
is in fee simple.
(b) There shall pass with each unit as appurtenances thereto:
undivided share in the common elements.
- The exclusive right to use such portion of the common elements as provided
by this Declaration.
- An exclusive easement for the use of the air space occupied by a unit as it exists at any particular
time and as a unit may be lawfully altered or reconstructed from time to time, which easement shall be terminated automatically
in any air space which is vacated from time to time.
- An undivided share in the common surplus.
- Such other
appurtenances as may be provided herein.
(c) The owner of a unit is entitled
to the exclusive possession of such unit. The owner shall be entitled to use the common elements in accordance with the
purposes for which they are intended, but no such use shall hinder or encroach upon the lawful rights of owners of other units.