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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 This
final order is entered pursuant to
Rule 616-45.030, Florida FACTS On
December 8, 2003, Stephen McWilliam, petitioner/unit owner, filed a
The
petition alleges that
the
association has permitted an
ineligible individual to serve as
a member of 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.
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 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 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
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 Similarly,
counsel argues that Florida State law supports a "marital interest" 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 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 DONE AND
ORDERED this 12th
day of April 2004, at Tallahassee,
Leon
Melissa Mnookin, Arbitrator Department of Business and 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. |