STATE OF FLORIDA

Department of Business and Professional Regulation

 Stephen McWilliam,

V.

Maya Marca Condomnium Association, Inc.,

Case No. 2003-09-4466

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

 

IN RE: PETITION FOR ARBITRATION  

Stephen McWilliam

Petitioner,

v.                                                                                                          Case No.  2003-09-4466

Maya Marca Condominium Association, Inc., 

             Respondent.

_____________________________/

AMENDED SUMMARY FINAL ORDER

Due to an inadvertent error contained within the certificate of service on the summary final order issued in this matter, an amended summary final order is entered. 

This final order is entered pursuant to Rule 616-45.030, Florida Administrative Code, which permit the arbitrator to enter a summary final order where there are no disputed issues of material fact.

FACTS

On December 8, 2003, Stephen McWilliam, petitioner/unit owner, filed a petition for mandatory non-binding arbitration, naming Maya Marca Condominium Association, Inc. 89 respondent/association.

 

The petition alleges that the association has permitted an ineligible individual to serve as a member of the board of governors in violation of the condominium governing documents. Specifically, Mr. McWilliam contests the authority of Kenneth Grant to serve as a member of the board of governors. Pursuant to a warranty deed dated March 30, 2001, the condominium unit in question was conveyed by the previous owners to Renee Benjamin, Mr. Grant's spouse. The petitioner claims this conveyance is evidence that Mr. Grant is not a unit owner and because the condominium documents do not allow for non-deeded spouses of owners to be members of the board of governors, Mr. Grant is not eligible to be a board member. As relief, the petitioner has requested an order nullifying the election of Mr. Grant to the board. 

As the association had filed a request for a declaratory statement from the Division on this matter, the arbitration proceeding was abated until such a resolution was issued. On January 28, 2004, the petitioner informed the arbitrator that the association's request for a declaretory statement had been denied. In response thereto, the arbitrator re-activated the case and issued an order on January 30, 2004, requiring the association to file an answer. The association filed its answer on March 2, 2004, contesting the Division's jurisdiction over the dispute and asserting defenses to the allegations presented by the petitioner.

CONCLUSIONS OF LAW

In support of a dismissal of the petition for arbitration, counsel for the association argues that the petitioner's dispute seeks an interpretation of the association's governing documents, over which the Division lacks jurisdiction citing to the decisions of Pecic: Plaza v. Division of Florida Land Sales and Condominiums, 371 So.2d 152 (Fla. 1st DCA 1979) and Point ManaQement, Inc. v. Division of Florida Land Sales and Condominiums, 449 So.2d 306 (Fla. 4th DCA 1984) as legal support. As counsel has attempted to advance this unpersuasive argument in a previous arbitration proceeding, Wine, et. al. v. Lighthouse Colony, Inc., Arb. Case No. 2003-09-6012, Order Striking Motion to Dismiss and Order Requiring Amended Answer (March 19, 2004), incorporated and attached hereto, counsel's motion/defense is hereby stricken for the reasons set forth therein.  

 

The association also argues as a defense that as the spouse of the record title owner, Mr. Grant possesses a marital interest in the property which qualifies as an "interest therein'" and enables him to be rightfully elected to the board of governors pursuant to article 3.1 of the association's by-laws. Article 3.1 of the association's by-laws provides the following: 

The Board of Govemors shall consist of not less than three persons nor more than nine as is determined from time to time by the members. Each member of the Board of Governors shall be either the owner of an apartment. have en interest therein or in the event of a corporation ownership, any officer or designated agent thereof. [emphasis added).

In support of this argument, the association contends that the board has interpreted this section to allow for spouses of deeded owners to serve on the board based on this "marital interest. rr The association further suggests that pursuant to both Florida State and Illinois State law (Mr. Grant and Ms. Benjamin were married in Illinois), an individual married to a record owner of a property has marital interest in that property. Counsel for the association paraphrases the Illinois Complied Statutes (ILCS), Ch. 40 503 (e) and argues that under the statute, a spouse has species of common ownership and an interest in marital property.

However, even if Illinois State law was applicable to this case, counsel neglected to include within his analysis the entire relevant section from the Illinois statute. 1 Chapter 750, ILCS 5/503 (e), which is entitled "Illinois Marriage and Dissolution of Marriage Act," actually provides the fallowing:

Each spouse has a species of common ownership in the marital property which vests at the time dissolution proceedings are commenced and continues only during the pendency of the action. Any such interest in marital property shall not encumber that property so as to restrict its transfer, assignment or conveyance by the title holder unless such title holder is specifically enjoined from making such transfer, assignment or conveyance. [emphasis added].

Even if marriage to a record title owner qualified as a legitimate, legal interest according to Illinois State law, this interest clearly vests when dissolution proceedings are commenced. As this proceeding is not within the context of dissolution matter, counsel's argument, based on Illinois law, is rejected.

Similarly, counsel argues that Florida State law supports a "marital interest" and cites two cases as authority, Reyes v. Reyes, 714 So.2d 646 (Fla. 4th DCA 1998) and Gaetani-Slade v. Slade, 852 So.2d 343 (Fla. 1st DCA 2003), While these cases, both of which resulted from dissolution of marriage proceedings, may recognize some type of marital interest, such interest, like the Intent recognized in the Illinois statute set forth above, was identified in the context of dissolution proceedings. It is arguable that Mr. Grant may be entitled to a legal interest in the condominium property within a dissolution atmosphere, but that interest is not a present legal interest and is merely contingent upon whether dissolution proceedings are commenced in the future.


1 The arbitrator is certain that this omission was inadvertent and not intentional.


Based on the foregoing, the arbitrator finds that the petitioner has demonstrated that Mr. Grant, as a spouse to the record title-holder, is not eligible to be a member of the board of governors. Simply being married to a deeded unit owner is not sufficient. Even though the by-laws do not define "interest therein," it is unlikely that the intent of the language refers to just any type of interest. If an individual married to a deeded unit owner were deemed eligible, other family members might argue their qualifications under a familial interest, a tenant might argue that he or she qualifies pursuant to a leasehold interest or a beneficiary to the property might assert a devisee interest. As the list could go on indefinitely, it is improbable that the drafters intended for this broad application. It is more reasonable to interpret this language as to apply to current, legal interest, such as an individual named as a trustee or one who holds a present a life estate interest in the property. See Sky Lake Gardens Condominium No.4, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2003-04-8669, Order Requiring Additional Information (June 17, 2003)(where a unit is titled in the name of a life tenant and remainderman, the remainderman does not have current ownership rights and, therefore, cannot serve as a board member). Contrary to counsel's argument, where a couple chooses to hold title to property in only one spouse's name based on tax planning or other reasons, it is justifiable to preclude the non-deeded spouse from certain benefits if those benefits derive from legal ownership or a legal interest In the property end that spouse is unable to sufficiently demonstrate such ownership or interest. Furthermore, counsel's contention that it would be improper for the arbitrator to overturn the will of the people who elected Mr. Grant onto the board is not a legal argument at all, and is in any event wholly unsound, as the will of the people cannot be allowed to supersede the clear intent of the controlling condominium documents. In such a case, the association's governing documents would be hollow and meaningless. If the will of the people desire for spouses of non-deeded owners to be permitted to serve as board members, then the documents must support such a will. Accordingly, because it is clear that marriage to a record title-holder does not in and of itself suffice as a legal interest within the nature of this type of proceeding, Mr. Grant cannot occupy a seat on the board.

It is therefore ORDERED: The arbitrator finds that notwithstanding his marriage to the record title owner, Kenneth Grant is neither a unit owner nor an individual with a legal interest entitling him to be eligible to sit on the board of governors. Accordingly, Mr. Grant shall step down from the beard immediately and turn over any association records he may have in his possession to another board member. The remaining board members may appoint a replacement to fill Mr. Grant's vacancy.

DONE AND ORDERED this 12th day of April 2004, at Tallahassee, Leon

County, Florida.

 
                                                                                     (SIGNATURE)              .

Melissa Mnookin, Arbitrator Department of Business and

             Professional Regulation

Arbitration Section

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1029

   

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Summary Final Order has been sent by U.S. Mail to the following persons, on this 12th day of April 2004.  

Stephen McWilliam

3000 Holiday Drive

Apt. #1401

Fort Lauderdale, Florida. 33316

Fax (954) 765-1022 

Stuart J. Zoberg, Esq. 

Becker & Poliakoff, P.A. 

3111 Stirling Road

Fort Lauderdale, Florida 33021 

Fax: (954) 985-4176

                    (SIGNATURE)                       .

Melissa Mnookin -- Arbitrator

Right to Appeal

As provided by section 718.1255, F.S., a party which is adversely affected by this final order may appeal by filing a petition for trial de novo with II court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal.

Attorney's Fees

As provided by section 71 B. 1255, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney's fees. Rule 61 a-45.048, F.A.C., requires that a party seeking an award of costs and attorney's fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 616-45.048, F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney's fees.

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