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Florida Condo law: FS718.113 subsections (2a),(2b),(2c) prohibits:

  1. "material alteration or substantial additions to the common elements"
  2. "material alteration or substantial additions to real property"

without 75% of the owners approving said alteration.

Is there a "bright-line" or examples to help define what is and is not a "material alteration or substantial additions"? If you can "see it" does it qualify? If you can step on it does it qualify?

For example, which of these are examples of alterations / additions to common areas?

  • Installation of a concrete patio
  • Installation of a wood deck
  • Surveillance camera installation to the building exterior
  • Replacement of an external light fixture with a different appearance or lighting color
  • Garden gnomes and "chatchkies" decorating the exterior of the common area

It is my understanding that Florida case law allows exceptions to the 75% owner vote requirement, when necessity (safety or imminent property damage) is demonstrated, allowing the board of directors to approve alterations. I understand that it is best practice to utilize a vote of the owners and not the board to enact a change under the guise of necessity.

2 Answers 2

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Is there a "bright-line" or examples to help define what is and is not a "material alteration or substantial additions"?

No.

"Material" and "substantial" are general standards rather than bright line rules and must be evaluated with good judgment on a case by case basis in light of the overall context.

There may be extreme cases that are clearly immaterial and insubstantial (e.g. changing the annual flowers planted in a flower bed from those planted in the previous years), and other that are clearly material and substantial (e.g. turning a common park in to a high rise). But in most cases, where the line is drawn is a discretionary determination for a finder of fact and decisions made prior to a judicial determination have to be made in the shadow of what is likely to be found in a future judicial determination.

Two judges could easily reach differing decisions on identical facts that would each be upheld on appeal in a close case.

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Alterations or additions means changing common elements so they are different from the common elements created with the condominium declaration. This is distinct from maintenance which the HOA board is obliged to perform and doesn't require a vote of the full HOA. The "bright line" for maintenance vs alteration is replacing "like with like". If you have mid-range commercial carpeting in the hallways then when that carpeting becomes worn, the HOA has to replace it with mid-range commercial carpeting. They don't have to match the exact color, or pattern, but it has to be of the same general quality. Replacing the carpet with teak parquet flooring would probably count as a material alteration for example.

Unfortunately, that "bright line" is not as bright as one might wish, and people will find ways to argue about how "like" is "like". The condo declaration and bylaws may provide further guidance above that provided in the Florida statutes.

In your examples installing a concrete patio or wood decks are clearly material alterations. They add features that weren't present in the original condominium declaration and completely change the use of existing common areas. The full HOA has to agree to this.

Replacement of an external light fixture with a different appearance or color pretty clearly counts as maintenance. There was a working light fixture before, and there was a working light fixture afterwards. There is some wiggle room here depending on how drastically the new fixture changed the appearance of the condominium, and people do go to court over issues like this.

The garden gnomes presumably don't alter the existing function of the common area they are sited in, and can trivially be removed at a later time, so they pass muster as maintenance (a form of landscaping).

Installation of a surveillance camera might be the hardest to sort out. It's clearly a new feature that didn't exist before, but if there have been break-ins or vandalism it would be easy to argue that it was necessary maintenance to preserve the value and safety of the condominium.

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  • Thank you for opining. Assume that there are no reports of break-ins or vandalism. If the "like" light fixture is available at Home Depot, is there an obligation to use said fixture? BTW, Nice hyperlink! With regard to removable decorations (garden gnomes): if it is not part of the original landscape, why would the pass muster of maintenance?
    – gatorback
    Jul 15, 2022 at 18:12
  • @gatorback I'd strongly encourage you to study the material in the link. It's specific to Florida, and lists several example cases that set some of the boundaries in these disputes. You can research those cases if you need more information. HOA boards are granted some latitude in these decisions, particularly when there is an arguable case that they are protecting the value and function of the condominium. They are also granted quite a bit of leeway in "decorating" decisions, where the changes are easily reversible and don't impact the underlying function of the common areas. Jul 15, 2022 at 18:32
  • If you think your HOA board has terrible taste in design, consider joining the committee making the design choices. Failing that, you can vote to replace the board at the next HOA election. Jul 15, 2022 at 18:40

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