IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO: 04-19092 (25)

HON. ALFRED J. HOROWITZ

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

 

CASE NO: 04-19092 (25)

HON. ALFRED J. HOROWITZ

ROBERT AIELLO.

Plaintiff.

VS.

JUDITH STERN, GEORGE CONROY, JUDITH RIVERA, ALYSIA FREEMAN, EILEEN BORMAN, COLONIAL MANOR WEST APARTMENTS CONDOMINIUM ASSOCIATIONS, INC. and SUNRAE MANAGEMENT SERVICES. INC.,

Defendants.

                                                                      I

JOSEPH VALLILLO,

Plaintiff

vs.

JUDITH STERN. GEORGE CONROY,

JUDITH RIVERA, ALYSIA FREEMAN, 

EILEEN BORMAN, COLONIAL MANOR

WEST APARTMENTS CONDOMINIUM

ASSOCIATION. INC.

Defendants

                                                                       /

 

ORDER

THIS 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 and the Court having considered same, having heard argument of counsel, and otherwise being duly advised in premises, finds and decides as follows: 

 

Colonial Manor West Condominium Apartments Association. Inc. (hereinafter CMW Association'') is a Florida not-for-profit corporation which operates the Colonial Manor West Apartments Condominium in Fort Lauderdale, Florida. CMW Association is the only named defendant in Counts Ill and IV of the Fourth Amended Complaint. Plaintiff Robert Aiello, is an owner of several units within this association. On January 17. 1998, the Board of Directors for CMW Association voted to amend various provisions of the condominium's Declaration and Bylaws, and such amendments were made part of the public record on April 2, 1998. 

  

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. 

  

At 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 Bylaws, and that the January 17, 1998 amendments were enacted in violation of Article IX because of the failure to secure the consent of the existing mortgagees. 

   

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.

   

Therefore it is:

ORDERED 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 Aiello and against Defendant CMW Association. 

   

ORDERED 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. Robert Aiello, and against Defendant CMW Association. 

  

ORDERED AND ADJUDGED that the Amendment to the Declaration of Colonial Manor West Apartments Condominium, dated January 17, 1998, which was recorded April 2. 1998, in Official Records Book 27977, Pages 538 through 547 of the Public Records of Broward County, Florida. is void, ab initio, and of no effect. 

  

ORDERED 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, Florida, is void, ab initio, and of no effect. 

  

ORDERED AND ADJUDGED that the Court retains jurisdiction as to all matters that remain pending in this action, including any issues relating to attorney's fees and costs.

   

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this   6   day of December, 2006. 

 


____SIGNATURE_____.

ALFRED J. HOROWITZ
CIRCUIT COURT JUDGE

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