Does your condominium building have security cameras that were
installed by the developer? Have there been violations of the
association’s security protocol, such as unauthorized use of key fobs and
contractor access to the building without registering with the front
desk? If the answer to both questions is “yes”, would you think that
installing a few additional cameras would constitute a material alteration or
addition to the common elements, thus requiring unit owner authorization by
vote?
Regular readers of this blog are sure to know
that Section 718.113(2)(a), Florida Statutes says:
“Except as otherwise provided in this section, there shall be no
material alteration or substantial additions to the common elements or to real
property which is association property, except in a manner provided in the
declaration as originally recorded or as amended under the procedures provided
therein. If the declaration as originally recorded or as amended under the
procedures provided therein does not specify the procedure for approval of
material alterations or substantial additions, 75 percent of the total voting
interests of the association must approve the alterations or additions. This
paragraph is intended to clarify existing law and applies to associations existing
on October 1, 2008.”
Regular readers are likely aware of the “necessary
maintenance” exception, vitiating the need for a membership vote where there is
a convincing factual predicate that a particular task undertaken by the board
is necessary to maintain or protect the common elements. Several
arbitration decisions have been issued supporting the board’s installation of
cameras without a vote of the owners when there was a history of security
breaches and/or criminal acts.
However, violations of security protocol did not
substantiate harm to the condominium property or a sufficient threat to the
safety of the residents to support the installation of cameras at the
condominium involved in a recent arbitration decision.
In Warner Trust v. Azure at Bonita Bay Condominium Asn., Inc. the board
installed 2 additional cameras in the building, one at the door from the
parking deck to the garage and the other at the doors from the parking deck to
the lobby. The building was originally constructed with 3 security
cameras at major entry points and the Board installed additional cameras
several years prior to the case in the mail room, after a series of thefts.
Owners and guests typically accessed the condominium
by use of a key fob. The individually programmed fobs provided a record
of who entered and exited the building. Rules governing contractor access to
the building required contractors to register at the front desk and wear
identification badges issued by the Association. Contractors were only
allowed to perform work during specified hours. Registration requirements are
not unusual if the Association desires to verify licenses and whether the work performed
has been approved (if applicable). Moreover, it provides a record of who
was in the building in the event of any damage, theft or other incident.
This rule was not adhered to by the owners, prompting the installation of
cameras.
The arbitrator did not believe that this noncompliance
with the rules established the factual predicate appropriate to apply the
necessary maintenance exception and ordered the Association to take a
retroactive vote of the members to approve the installation of the 2 cameras.
Community leaders should take precautions before
having any work performed that could constitute a material alteration.
Here, as in other cases, if Association does not receive the requisite vote of
members (2/3rds in this case), it will have to remove the security cameras and
restore the property to its previous condition.
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