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Specifics: I am a board member of a condominium association in Florida, U.S. Our governing documents (articles of incorporation, declaration of condominium, by-laws) are completely silent on the ownership and/or responsibility for maintenance, repair, or replacement of windows and exterior doors. Additionally, no other meeting minutes, board-adopted rules/regulations, etc., provide any guidance on the subject of windows.

We have been plagued with arguments and differing opinions regarding the responsibility of the doors and windows. There are merits to the differing opinions, many of them specific to our situation (wholesale replacement of all windows and doors 14 years ago due to near-catastrophic hurricane damage; the need to maintain the windows to hurricane-impact standards for both code and insurance reasons; the inability of owners to obtain insurance on windows; etc.). I am not seeking to argue or resolve those specific issues.

The problem I'm trying to solve is that we are unable to amend our documents to be definitive, one way or the other, on the window & door responsibility. Amending the governing documents requires a supermajority of the owners to approve the change. In the past I organized the required number of owners, but when I petitioned the board to bring amendments before the owners, I lost a few votes to opposing arguments. So we're stuck in a null state, with the responsibility undefined, but unable to modify the documents to define the responsibility.

In Florida, condominium complaints can be referred to the Department of Business and Professional Regulation (DBPR), Division of Condominiums, Timeshares, and Mobile Homes. In years past, the DBPR made many rulings interpreting association documents on a case-by-base basis. However, for the last 15-20 years, the DBPR has specifically rejected any interpretation of condo docs, instead only ruling on statutory infractions such as board election irregularities, providing access to official records, etc. So the DBPR can't provide a solution here.

Can I seek a declaratory judgment, so that until we modify our docs, the position of a court is that the responsibility is "X"?

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In a word, no. One path that you could try is to employ a mediator who will suggest a solution, and maybe you can get a supermajority to actually modify the agreement based on that. The mediator's opinion is not binding, so you could just waste money and not get a definitive change. You could seek binding arbitration, but unless there is a binding arbitration clause in the agreement (I assume there isn't), that would not actually be binding (and they would recognize their decision is not binding, telling you that it's a wast of money). In some cases, state Attorneys General may render advisory opinions, but this is not that kind of case (they might for example give their legal interpretation of a state law against transporting machine guns, but such opinions which are not legally binding anyhow are only issued to certain officials on questions of their official duties.

What you need is a court-ordered forcing of the situation, and the courts do not give advice. One party would have to file suit against another, and if this is properly done, the matter may be decided by the courts. The case may also be dismissed. The courts won't entertain a suit of the form "we'd like to know if", but they may entertain a suit of the form "those guys harmed me in the following way". No harm, no lawsuit.

  • Thanks, I suspected as much. We actually have a possible situation for a suit: an owner paid to replace water damaged exterior drywall, and to seal the exterior of the windows. They are seeking reimbursement from the current board. The current board agrees with the owner and is inclined to pay them back. But would it be unethical for the board to ask the owner to sue the association, in order to present an actual non-trivial non-contrived case to ask for declaratory judgment? – scottbb Oct 21 '18 at 17:36
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    It could be legally problematic if the board officially made such a request of an owner, since it might pit the interests of one owner against the interests of others, and the board could end up getting sued by some of the owners. There is no problem with an individual opining that a lawsuit is probably the only way to get out of this situation. – user6726 Oct 21 '18 at 18:57
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Declaratory judgments clarifying the meaning of a written instrument such as condominium governing documents are possible, but only when there is a bona fide dispute between parties who have personal economic interests in having the issue resolved.

For example, if an owner is seeking reimbursement for expenses incurred from the board, and the board cannot agree regarding what is required of it, the board could bring an action naming the owner as a defendant for a declaratory judgment determining what the governing documents require it to do in that situation.

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