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 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.