Amelio v. Marilyn Pines Unit II Condominium Association, Inc.

173 So. 3d 1037, 2015 Fla. App. LEXIS 10694, 2015 WL 4249923
CourtDistrict Court of Appeal of Florida
DecidedJuly 15, 2015
Docket2D14-5596
StatusPublished
Cited by4 cases

This text of 173 So. 3d 1037 (Amelio v. Marilyn Pines Unit II Condominium Association, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amelio v. Marilyn Pines Unit II Condominium Association, Inc., 173 So. 3d 1037, 2015 Fla. App. LEXIS 10694, 2015 WL 4249923 (Fla. Ct. App. 2015).

Opinions

SILBERMAN, Judge.

John and Annemarie Amelio (the Amel-ios) own a ground floor condominium unit that has been plagued by excess moisture coming through the slab on which their unit sits. The Amelios filed suit for in-junctive relief and damages, claiming that Marilyn Pines Unit II Condominium Association, Inc. (the Association), has failed to perform its obligations to maintain and repair the slab in order to stop the moisture intrusion. They appeal the nonfinal order that denies their request for a mandatory injunction against the Association. We conclude that the Amelios have satisfied the requirements to obtain a mandatory injunction and that an injunction is appropriate under the circumstances of this ease. Accordingly, we reverse.

In 2010, the Amelios observed excessive moisture in their condominium unit, which was causing damage to the unit and its contents. They reported the problem to the Association, which then brought in a leak detection service. In December 2010, that company ran tests and determined that there was excessive moisture in the slab which was not caused by a plumbing, air conditioning, or other leak. In March 2011, the Association hired an engineering firm to inspect the floor slab and recommend potential repair options. The engineering firm recommended the installation of a moisture barrier on the slab and an exterior drainage system.

Immediately following the engineering firm’s recommendation, the Association’s attorney sent a letter to the Association’s board of directors notifying the board that it is the Association’s responsibility to fix any issues with the floor slab. In December 2011, the Association hired a different engineering firm to draw up plans for an exterior drainage system. The drainage system was not completed until more than a year later in early 2013. But even after [1039]*1039the drainage system was installed high moisture levels remained in the slab and moisture intrusion continued in the Amel-ios’ unit.

The Association rehired the original engineering firm to perform another inspection. The engineering firm issued a report in April 2018, again recommending that a moisture barrier be placed on the concrete slab. The Association hired a company to install the moisture barrier, but it was not installed in accordance with the engineering firm’s specifications and, although disputed, the concrete slab may have been too soft and powdery for the barrier to be effective. The Association failed to take further steps to resolve the problem. The Amelios’ unit continues to be damaged as a result of ongoing moisture intrusion and is uninhabitable.

The Amelios sought a mandatory injunction to compel the Association to resolve the moisture problem in the slab. They also sought compensation for damage to their condominium unit, damage to their personal property, and for loss of use of the unit. The circuit court bifurcated the injunction and damages claims and conducted a nonjury trial as to injunctive relief. The court found that the Amelios failed to demonstrate that they had no adequate remedy at law and denied injunc-tive relief.

Injunctive relief is specifically authorized by statute in cases brought by unit owners against condominium associations for their failure to perform obligations as required by the condominium documents. § 718.303(1), Fla. Stat. (2011); see Abbey Park Homeowners Ass’n v. Bowen, 508 So.2d 554, 555 (Fla. 4th DCA 1987). In order to establish entitlement to a mandatory injunction there must be a clear legal right which has been violated, irreparable harm must be threatened, and there must be a lack of an adequate remedy at law. Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007). The Amelios contend that the evidence at trial established these elements. We agree.

First, to establish entitlement to a mandatory injunction, a movant must establish that “a clear legal right has been violated.” Legakis v. Loumpos, 40 So.3d 901, 903 (Fla. 2d DCA 2010). In this case, the declaration of condominium governs the parties’ rights. Section 5.2(a) states:

(a) BY ASSOCIATION. The Association shall maintain, repair and replace as a common expense of the apartment buildings containing an apartment:
(1) All portions of the apartment contributing to the support of the apartment building, which portions shall include but not be limited to the outside walls of the apartment buildings and all fixtures on the exterior thereof, boundary walls of the apartment, floors and ceiling slabs, loadbearing columns, and loadbearing walls, but shall, not include screening, windows, exterior doors, glass, and interior surfaces of walls, ceilings and floors.
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(3) All incidental damage caused to an apartment by such work shall be promptly repaired by the Association.

(Emphasis added.) Section 5.2(b)(1) states:

(b) BY THE APARTMENT OWNER. The responsibility of the apartment owner shall include:
(1) To maintain, repair, and replace at his sole and personal expense ... interi- or surfaces of all walls, including boundary and exterior walls, floors and ceilings ... except the portions specifically to be maintained, repaired and replaced by the Association.

(Emphasis added.) Finally, section 5.2(c) states:

[1040]*1040(c) ALTERATION AND IMPROVEMENT. Subject to the other provisions of 5.2, and which in all cases shall supersede and have the priority over the provisions of this section when in conflict therewith, an apartment owner may make such alteration or improvement to the apartment at his sole and personal cost as he may be advised, provided all work shall be done without disturbing the rights of other apartment owners and further provided that an apartment owner shall make no changes or alterations to any interior boundary wall, exterior wall, balcony or patio, screening, exterior door, windows, awnings, structural or loadbearing member, electrical service or plumbing service, without first obtaining approval in writing of owners of all other apartments in such apartment building and the approval of the board of directors of the Association, with compliance to all existing building codes.

(Emphasis added.) While the Amelios have a duty to maintain and repair the interior surfaces of their unit, they are not entitled to unilaterally make any changes or alterations to any structural or load-bearing member of the unit, including the slab. Rather, it is the Association’s duty to maintain and repair the floor slab. Because the evidence has shown that moisture was coming from outside the Amelios’ unit through the floor slab and that the Association has failed to resolve the problem, the Amelios have established that they possess a clear legal right to have the Association repair the slab.

The second element a movant must establish for a mandatory injunction is that irreparable harm is threatened. Legakis, 40 So.3d at 903; Shaw, 949 So.2d at 1069. Under section 718.303(1), the requirement of irreparable harm is satisfied when a violation of chapter 718 is shown. Hobbs v. Weinkauf, 940 So.2d 1151, 1153 (Fla. 2d DCA 2006); Hollywood Towers Condo. Ass’n, Inc. v. Hampton, 40 So.3d 784, 788 (Fla. 4th DCA 2010).

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Bluebook (online)
173 So. 3d 1037, 2015 Fla. App. LEXIS 10694, 2015 WL 4249923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amelio-v-marilyn-pines-unit-ii-condominium-association-inc-fladistctapp-2015.