IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO: 04-19092 (25)
HON. ALFRED J. HOROWITZ
GEORGE CONROY, JUDITH RIVERA,
ALYSIA FREEMAN, EILEEN BORMAN,
COLONIAL MANOR WEST APARTMENTS
CONDOMINIUM ASSOCIATIONS, INC.
and SUNRAE MANAGEMENT
JUDITH STERN. GEORGE CONROY,
JUDITH RIVERA, ALYSIA FREEMAN,
EILEEN BORMAN, COLONIAL MANOR
WEST APARTMENTS CONDOMINIUM
CAUSE having come before the Court upon Plaintiff Robert Aiello's Motion
for Partial Summary Judgments as to
Counts III and IV of the Plaintiff's Fourth Amended Complaint
Manor West Condominium Apartments Association.
Inc. (hereinafter CMW
Count III of the Fourth Amended complaint seeks damages regarding the right of refusal against CMW Association. The original declaration provided for a right of first refusal for current unit owners and allowed a current owner to match a bona fide offer upon the terms and conditions of a prospective sale. The 1998 amendment eliminated this right of first refusal, which prevented the Plaintiff, a unit owner at all relevant times, from purchasing additional units in the building managed by CMW Association.
Count IV of the Fourth Amended Complaint seeks declaratory judgment against CMW Association based upon the amendment to the Bylaws which changed the term for members of the Board of Directors. This Amendment allows members of the board to serve a 2-year term on the Board of Directors, rather than the 1-year term originally provided in the Bylaws.
the time of the enactment of 1998 amendments
in question, at least half of the units were encumbered by mortgages; however,
these amendments were enacted
without notice to or the consent
of the mortgagees In
existence at the time.
Article IX of
the Articles of Incorporation for
Colonial Manor West Apartments Condominium states that "[n]ew
Bylaws may be adopted or bylaws of the corporation
may be amended or repealed by 80% of the fee owners and all of the
mortgagees at a regular
or special meeting after
ten days written
notice prior to the date of
the meeting has been given to each
member, together with the proposed
amendment." The Court finds
no merit in the Defendant's
interpretation of Article IX as a permissive method
for amending the bylaws. Rather, this Court
finds that Article IX is the sole mechanism provided for amending the
1998 amendments (to both the bylaws and the declaration)
also violated FIa. St.. §
617.0206, which provides that the Articles
of Incorporation are
controlling and that "any new
bylaws must be consistent with the
Articles of Incorporation ... " and "[a]ny
Bylaws to the contrary would
be invalid as per Fla. St. 617.0206
(1995)." As the Articles of
Incorporations of Colonial Manor West
Apartments Condominiums requires mortgagee approval for the passage of an
amendment to a declaration.
such amendment must be held invalid.
See Tortuga Club
Inc. v. Szarek, Case No. 95-0274 (validity of a declaration amendment
prohibiting removal of carpet or
carpet padding from floor area in all units without replacing the carpet and
padding with similar sound deadening carpet
and padding because of failure to obtain the consent of all institutional
first mortgagees, as required by the declaration of condominium)
;see also .Federal National Mortgage Association v. Oakbrook
Condominium Association Inc., DBPR 01-2949 (2001).
Regarding Count IV, in addition to the CMW Association's failure to obtain mortgagee approval, Plaintiff argues that this amendment to the Bylaws was not properly recorded as prescribed by Fla. St. § 718. 122(1)(b). Chapter 718 of the Florida Condominium Act "establishes a detailed scheme for the creation, sale and operation of condominiums." Neumann v. Grandview at Enerald Hills lnc., 861 So. 2d 494, 496-497 (Fla. 4th DCA 2003) citing Woodside VIII. Condo Ass'n v. Jahren 806 Sd.2d 452. 455 (Fla. 2002). The recording method employed by the association, while not in technical compliance with the statute, does not render the amendments per se invalid. This Court finds that the recorded amendments in question contain the name of the condominium association and therefore, the amendment provided sufficient notice of any change to either the declaration or bylaws to an. interested party.
These amendments were not validly enacted and are of no effect on the Declaration or Bylaws.
AND ADJUDGED that the Plaintiffs Motion for Partial Summary Judgment as to
Count III of the Fourth Amended
Complaint is GRANTED in favor of the Plaintiff, Robert
AND ADJUDGED that the Plaintiff's Motion for Partial Summary Judgment as
to Count IV of the Fourth Amended Complaint is GRANTED in favor of the Plaintiff.
AND ADJUDGED that the Amendment
to the Declaration
of Colonial Manor
AND ADJUDGED that the Amendment to the Bylaws of Colonial Manor
West Apartments Condominium, dated
January 17, 1998, which was recorded April
2, 1998, in Official Records Book
27977, Pages 533 through 537 of 'the
Public Records of Broward County,
AND ADJUDGED that the
Court retains jurisdiction as to all
AND ORDERED in Chambers, Fort Lauderdale,
6 day of