[1] |
COURT OF APPEAL OF FLORIDA,
FOURTH DISTRICT |
[2] |
No. 85-351 |
[3] |
1987.FL.40577; 501 So. 2d 741;
12 Fla. Law W. 460 |
[4] |
Filed:
February 4, 1987. |
[5] |
ISLANDIA CONDOMINIUM ASSOCIATION, INC., A FLORIDA
CORPORATION, BARRY BRAUN, NANCY EDRICH, GAIL BRAVERMAN, BRUCE GREENBERG,
ROZ BELLMAN, JERRY KRAMER, BARBARA KRANTZ, EILEEN BRAUN, AND BRUCE SANKIN,
APPELLANTS,
v.
DANIEL H. VERMUT AND SUSAN H. VERMUT, APPELLEES |
[6] |
Appeal from the Circuit Court for Broward
County; Linda L. Vitale, Judge. |
[7] |
Allen M. Levine, of Becker, Poliakoff
& Streitfeld, P.A., for appellants. |
[8] |
Regina F. Zelonker of Scherman and
Zelonker, P.A., for appellees. |
[9] |
Anstead, Glickstein, JJ., and Goderich,
Mario P., Associate Judge, concur. |
[10] |
Per Curiam |
[11] |
This is an appeal of a partial final
judgment as to Count I of plaintiffs' third amended complaint and
defendants' amended counterclaim. We affirm and address herein only some
of the issues, having considered all of them. |
[12] |
Islandia Condominium development consists
of forty-seven buildings, each building being composed of several
two-story townhouses. The development was originally laid out in clusters
of buildings grouped by color. There were approximately seven different
color groups and coordinations, with each group of buildings having
matching trim and roof. The Islandia development was and is operated by
one Board of Directors and one set of officers. One monthly Board of
Directors meeting is held. |
[13] |
Plaintiffs/Appellees Daniel and Susan
Vermut purchased a condominium at Islandia in December, 1977 in Building
15, Unit 8. At the time of this purchase, buildings of different colors
were already constructed. These series of colors appealed to the Vermuts
and they believed the community was beautiful. For example, some buildings
were in gray tones, some in reddish tones, some in greenish tones and so
forth. The Vermuts purchased their particular unit because of the exterior
color scheme planned for the building. When they took title to their unit,
and until the most recent paid job, all of the wood surfaces, including
the wood siding, trim, fence, gate and trellises, were dark brown; and the
stucco was an off-white color. |
[14] |
The basis of the present lawsuit began on
June 17, 1982, at the regular monthly meeting, when the Islandia Board of
Directors approved a "painting program" presented by the
maintenance committee. Color was not discussed or decided at that meeting
nor was there a decision made to give the community a more uniform
appearance. In fact, neither color nor the uniform appearance issue were
discussed at any Board of Directors meeting. As stated specifically in the
judgment, the "(t)he minutes of subsequent Board of Directors
meetings reflect a discussion of commencement date for painting (July 15,
1982), pressure cleaning (September 23, 1982), illegal assessments
(November 18, 1982) and painting in general (February 10, 1982) but on no
occasion is there a discussion of changes in color or more uniform look
for the community. |
[15] |
The amount of the painting contract
entered into by Islandia was close to Two Hundred Thousand ($200,000.00)
Dollars. Only one contract was made for all forty seven buildings at
Islandia. The June 17, 1982 minutes reflect that a special assessment for
the painting was discussed, but, as noted in the judgment, the minutes do
not reflect that an assessment was voted on and passed. |
[16] |
The dispute between the parties is the
choice of color and how it was made. The board decided that for the sake
of uniformity, all the buildings would be painted in the same color
scheme, light brown. There is a letter in the record from the board
president to the association's attorneys which indicates he selected the
color himself. No notice was given to the unit owners regarding the color
choice. |
[17] |
The Vermuts first found out about the
painting when Daniel Vermut saw Buildings One and Two being painted the
new light color brown. Subsequently, on February 2, 1983, they filed the
present action against Islandia seeking, among other items that their
building be restored to its original color. They contended that the
decision to change the exterior color scheme at a cost of $200,000 was the
type of change and improvement which required a two-thirds vote of the
unit owners, as state in Article XIV(D) of the Declaration of Condominium.
We agree. |
[18] |
The trial court, after notice and
hearing, issued a preliminary injunction to prevent the painting of the
Vermuts' building while this suit was pending. This court reversed solely
on the ground of no showing of irreparable harm at the preliminary state
of their lawsuit. slandia Condominium Association, Inc. v. Vermut,
438 So.2d 89
(Fla. 4th DCA 1983). The Vermuts' building was painted; and they
disapproved not only because it did not appear as it did when they
purchased it in 1977, but also because they had made improvements upon
their unit based upon the color scheme they purchased. The color of these
improvements including tile on the front walk and storm roll-ups, had been
carefully chosen to insure uniformity of the outside of the unit with the
other units in the building. |
[19] |
The trial court made extensive findings
of fact set out in the final judgment. On the plaintiffs' claim, the trial
court ordered that a vote be taken of all the unit owners as required in
order to obtain approval of the color change. If there was not approval by
two-thirds of the owners, then the association was ordered to repaint all
the buildings to their original color schemes. On defendants'
counterclaim, the trial court ordered that the association's special
assessments were null and void, that the claims of lien filed by it
against the Vermuts were cancelled; and it dismissed the claim for
foreclosure of the Vermuts' unit. |
[20] |
This court has discussed the definitions
of alteration, addition, material and substantial, in Sterling Village
Condominium, Inc., v. Breitenbach,
251 So.2d 685
(Fla. 4th DCA 1971). Changing the color scheme of the development from one
of multi-color clusters to one uniform color clearly fits within the
Sterling definitions of substantial, material alteration. We therefore
affirm the partial final judgment in favor of the Vermuts and against the
association. |
[21] |
ANSTEAD, GLICKSTEIN, JJ., and GODERICH, MARIO P., Associate
Judge concur. |
|