Third District Court of Appeal State of Florida
Opinion filed July 9, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0707 Lower Tribunal No. 16-20883-CA-01 ________________
De Soleil South Beach Association, Inc., Appellant,
vs.
Amber Perrin, et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Lisa S. Walsh, Judge.
Young, Berman, Karpf & Karpf, P.A., and Andrew S. Berman, for appellant.
Pardo Law LLC, and Joseph I. Pardo and Melissa L. Mackiewicz; Law Offices of Jason Gordon, P.A., and Jason Gordon (Hollywood), for appellee Amber Perrin.
Brodsky Fotiu-Wojtowicz, PLLC, and Joshua Truppman, for appellee Susan Rainone.
Before GORDO, BOKOR and GOODEN, JJ. BOKOR, J.
De Soleil South Beach Association, Inc., appeals from an amended
final order and judgment in favor of Amber Perrin and Susan Rainone as
Trustee of the Susan Rainone Revocable Trust. 1 Perrin and the trust (the
Unit Owners) each own transient use condominium units in the De Soleil
South Beach in Miami Beach, Florida. The building consists of three parcels:
the condominium, commercial space, and the parking garage. The dispute
involves an agreement between the three parcels (the Master Declaration)
and an amendment to that agreement which the Unit Owners claimed
violated their rights to condominium common elements under chapter 718,
Florida Statutes (the Condominium Act). The trial court found in favor of the
Unit Owners. Because the amendment to the Master Declaration removed
condominium unit owners’ collective right to common elements under the
Condominium Act, we affirm the trial court’s well-reasoned amended final
order and judgment.
I.
In 2006, a real estate developer recorded two instruments associated
with the De Soleil South Beach, a multi-floor, mixed-use building in Miami
Beach, Florida. The first instrument, the declaration of condominium (the
1 We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A).
2 Condo Declaration) submitted the Residential Association, composed of the
owners of the building’s eighty transient use residential units, to the
condominium form of government under the Condominium Act. Each unit
owner held an undivided share in the common elements, or certain property
not included in the individual units, like external concrete and utility
infrastructure, and various easements of use and support. In short, the units
existed in condominium: “that form of ownership . . . which is comprised
entirely of units that may be owned by one or more persons, and in which
there is, appurtenant to each unit, an undivided share in common elements.”
§ 718.103(12), Fla. Stat. The Condo Declaration also made unit owners
liable to the Residential Association for related expenses and required the
collective action of the Residential Association to modify these rights. The
Residential Association was “responsible for the operation of [those]
common elements.” Id. (3).
The other instrument, the Master Declaration, divided the building into
three parcels: the condominium described above, governed through its
Residential Association; the garage; and commercial space. The three
parcels collectively were governed by De Soleil South Beach Association,
Inc., the Master Association, with each parcel getting one vote. Through this
governing structure, the developer, who owned both the garage and
3 commercial parcels, controlled the building’s Master Association. The Condo
Declaration contained a provision that in the event of a dispute between the
Condo Declaration and the Master Declaration, the Master Declaration
controlled.
In 2016, the Master Association amended the Master Declaration, over
the protest of the Residential Association, through what is known as the
“Second Amendment” to the Master Declaration. The Second Amendment
granted the Master Association rights at the expense of the Residential
Association and the constituent unit owners. It restricted unit owners from
entering the garage; required 24–hours’ notice to rent out units for unit
owners not submitting their units to a pooled rental service run by the Master
Association; deemed certain external structures like railings and concrete
subject to Master Association control; and asserted a right to levy direct fines,
impose liens, and evict individual unit owners.
The Master Association sought declaratory relief to affirm its rights
under the Second Amendment. The Unit Owners opposed the relief sought
and countersued. After a long and tortured procedural history including
partial summary judgments and prior appeals, the trial court found that the
contested provisions of the Second Amendment violated the Condominium
Act. The Master Association appealed, arguing that the arrangement either
4 complied with or was not governed by the Condominium Act and that the trial
court impermissibly limited the parcel owners’ right to contract.
II.
This court previously contemplated a similar scenario. See IconBrickell
Condo. No. Three Ass’n, Inc. v. New Media Consulting, LLC, 310 So. 3d 477
(Fla. 3d DCA 2020). There, a condominium unit owner sought a declaratory
judgment that the founding declaration improperly divested them of statutory
rights by reclassifying the building’s “common elements” as “shared
facilities,” a category whose properties were delineated by reference to the
instrument as opposed to the statute. Id. at 479. This court held that the
declaration of condominium could not supplant rights conferred by the
Condominium Act. Id. at 480–81. We did so recognizing that the
condominium ownership structure is “strictly a creature of statute,” and that
where private agreements conflict with the statute, “the statute must prevail.”
Id. at 480 (quoting in part Tranquil Harbour Dev., LLC v. BBT, LLC, 79 So.
3d 84, 86 (Fla. 1st DCA 2011), and Winkelman v. Toll, 661 So. 2d 102, 105
(Fla. 4th DCA 1995)).
The Master Association argues that IconBrickell is inapposite because
here, rights held in condominium are subject to the contractual relation
between the building’s parcel owners as outlined in the Master Declaration.
5 And unlike the situation in IconBrickell, where “[a]ll three edifices are subject
to a master declaration of condominium,” id. at 478, here, the Master
Association built a better mousetrap by subjecting only the condominium
parcel to the Condominium Act. We agree that the governing structure of the
building differs from IconBrickell, but we reach a similar result based on our
interpretation of the rights appurtenant to a condominium under the
Condominium Act.
Here, the Master Association, through the Second Amendment,
reclassified condominium property, defined as “common elements” for the
collective benefit of the unit owners, as Master Association property. In
IconBrickell, this court held that a “recharacterization” of common elements
as shared facilities subject to control of the hotel owner and the “resultant
expropriation of undivided common ownership[] indubitably contravene[d]
the edict of the [Condominium] Act.” Id. at 481 (citing § 718.107, Fla. Stat.).
The removal of common elements from condominium control by the Second
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Third District Court of Appeal State of Florida
Opinion filed July 9, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0707 Lower Tribunal No. 16-20883-CA-01 ________________
De Soleil South Beach Association, Inc., Appellant,
vs.
Amber Perrin, et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Lisa S. Walsh, Judge.
Young, Berman, Karpf & Karpf, P.A., and Andrew S. Berman, for appellant.
Pardo Law LLC, and Joseph I. Pardo and Melissa L. Mackiewicz; Law Offices of Jason Gordon, P.A., and Jason Gordon (Hollywood), for appellee Amber Perrin.
Brodsky Fotiu-Wojtowicz, PLLC, and Joshua Truppman, for appellee Susan Rainone.
Before GORDO, BOKOR and GOODEN, JJ. BOKOR, J.
De Soleil South Beach Association, Inc., appeals from an amended
final order and judgment in favor of Amber Perrin and Susan Rainone as
Trustee of the Susan Rainone Revocable Trust. 1 Perrin and the trust (the
Unit Owners) each own transient use condominium units in the De Soleil
South Beach in Miami Beach, Florida. The building consists of three parcels:
the condominium, commercial space, and the parking garage. The dispute
involves an agreement between the three parcels (the Master Declaration)
and an amendment to that agreement which the Unit Owners claimed
violated their rights to condominium common elements under chapter 718,
Florida Statutes (the Condominium Act). The trial court found in favor of the
Unit Owners. Because the amendment to the Master Declaration removed
condominium unit owners’ collective right to common elements under the
Condominium Act, we affirm the trial court’s well-reasoned amended final
order and judgment.
I.
In 2006, a real estate developer recorded two instruments associated
with the De Soleil South Beach, a multi-floor, mixed-use building in Miami
Beach, Florida. The first instrument, the declaration of condominium (the
1 We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A).
2 Condo Declaration) submitted the Residential Association, composed of the
owners of the building’s eighty transient use residential units, to the
condominium form of government under the Condominium Act. Each unit
owner held an undivided share in the common elements, or certain property
not included in the individual units, like external concrete and utility
infrastructure, and various easements of use and support. In short, the units
existed in condominium: “that form of ownership . . . which is comprised
entirely of units that may be owned by one or more persons, and in which
there is, appurtenant to each unit, an undivided share in common elements.”
§ 718.103(12), Fla. Stat. The Condo Declaration also made unit owners
liable to the Residential Association for related expenses and required the
collective action of the Residential Association to modify these rights. The
Residential Association was “responsible for the operation of [those]
common elements.” Id. (3).
The other instrument, the Master Declaration, divided the building into
three parcels: the condominium described above, governed through its
Residential Association; the garage; and commercial space. The three
parcels collectively were governed by De Soleil South Beach Association,
Inc., the Master Association, with each parcel getting one vote. Through this
governing structure, the developer, who owned both the garage and
3 commercial parcels, controlled the building’s Master Association. The Condo
Declaration contained a provision that in the event of a dispute between the
Condo Declaration and the Master Declaration, the Master Declaration
controlled.
In 2016, the Master Association amended the Master Declaration, over
the protest of the Residential Association, through what is known as the
“Second Amendment” to the Master Declaration. The Second Amendment
granted the Master Association rights at the expense of the Residential
Association and the constituent unit owners. It restricted unit owners from
entering the garage; required 24–hours’ notice to rent out units for unit
owners not submitting their units to a pooled rental service run by the Master
Association; deemed certain external structures like railings and concrete
subject to Master Association control; and asserted a right to levy direct fines,
impose liens, and evict individual unit owners.
The Master Association sought declaratory relief to affirm its rights
under the Second Amendment. The Unit Owners opposed the relief sought
and countersued. After a long and tortured procedural history including
partial summary judgments and prior appeals, the trial court found that the
contested provisions of the Second Amendment violated the Condominium
Act. The Master Association appealed, arguing that the arrangement either
4 complied with or was not governed by the Condominium Act and that the trial
court impermissibly limited the parcel owners’ right to contract.
II.
This court previously contemplated a similar scenario. See IconBrickell
Condo. No. Three Ass’n, Inc. v. New Media Consulting, LLC, 310 So. 3d 477
(Fla. 3d DCA 2020). There, a condominium unit owner sought a declaratory
judgment that the founding declaration improperly divested them of statutory
rights by reclassifying the building’s “common elements” as “shared
facilities,” a category whose properties were delineated by reference to the
instrument as opposed to the statute. Id. at 479. This court held that the
declaration of condominium could not supplant rights conferred by the
Condominium Act. Id. at 480–81. We did so recognizing that the
condominium ownership structure is “strictly a creature of statute,” and that
where private agreements conflict with the statute, “the statute must prevail.”
Id. at 480 (quoting in part Tranquil Harbour Dev., LLC v. BBT, LLC, 79 So.
3d 84, 86 (Fla. 1st DCA 2011), and Winkelman v. Toll, 661 So. 2d 102, 105
(Fla. 4th DCA 1995)).
The Master Association argues that IconBrickell is inapposite because
here, rights held in condominium are subject to the contractual relation
between the building’s parcel owners as outlined in the Master Declaration.
5 And unlike the situation in IconBrickell, where “[a]ll three edifices are subject
to a master declaration of condominium,” id. at 478, here, the Master
Association built a better mousetrap by subjecting only the condominium
parcel to the Condominium Act. We agree that the governing structure of the
building differs from IconBrickell, but we reach a similar result based on our
interpretation of the rights appurtenant to a condominium under the
Condominium Act.
Here, the Master Association, through the Second Amendment,
reclassified condominium property, defined as “common elements” for the
collective benefit of the unit owners, as Master Association property. In
IconBrickell, this court held that a “recharacterization” of common elements
as shared facilities subject to control of the hotel owner and the “resultant
expropriation of undivided common ownership[] indubitably contravene[d]
the edict of the [Condominium] Act.” Id. at 481 (citing § 718.107, Fla. Stat.).
The removal of common elements from condominium control by the Second
Amendment similarly contravenes section 718.107 by separating, conveying
or encumbering common elements appurtenant to the condominium units,
without conveying the title to the units. It impermissibly removes from
condominium control common elements under section 718.108, including
“condominium property which is not included within the units,” along with
6 certain easements and infrastructure required to furnish utilities and services
to those units. § 718.108(1)(a), Fla. Stat.
The Condominium Act confers condominium unit owners with an
undivided share in, and collective control over, common elements
appurtenant to the units. IconBrickell held that members of a condominium
association cannot alienate common elements defined by statute. 310 So.
3d at 480. So the Master Association, a stranger to the Condo Declaration,
would not be able to take away what the unit owners cannot convey absent
conveying title to their units. See id.; see also § 718.102, Fla. Stat. (“Every
condominium created and existing in this state shall be subject to the
provisions of this chapter.”); § 718.303(2), Fla. Stat. (“A provision of this
chapter may not be waived if the waiver would adversely affect the rights of
a unit owner or the purpose of the provision . . . .”).
III.
The trial court properly interpreted the Condominium Act and relevant
caselaw in determining the propriety of the Second Amendment and the
relation between the three parcels. See Criterion Ins. Co. v. Amador, 479 So.
2d 300, 300 (Fla. 3d DCA 1985); see also § 86.011, Fla. Stat. (authorizing
trial courts to adjudicate “any immunity, power, privilege, or right” or fact upon
7 which they depend). As to the Master Association’s other arguments, we
affirm without discussion.
Affirmed.