Condominium associations are often faced with the difficult task of determining whether a particular project is a material alteration of the common elements, requiring unit owner approval, and whether that material alteration falls within the maintenance exception to the requirement of unit owner approval.    

Maintenance of the common elements is specifically made the responsibility of a condominium association under section 718.113(1), Florida Statutes. The association, under section 718.111(4), Florida Statutes, has the power to make and collect assessments and to maintain, repair and replace the common elements.  However, if the work constitutes a material alteration or substantial addition to the common elements, the board of directors must obtain approval under the condominium documents or, if the documents are silent, it must obtain approval from 75% of the unit owners.  § 718.113(2), Fla. Stat.  Notwithstanding, case law has created an exception for necessary maintenance or protection of the common elements.

“Material alteration or substantial addition” means to “palpably or perceptively vary or change the form, shape, elements, or specifications…from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.”  See Sterling Village Condominium, Inc. v. Breitenbach, 251 So. 2d 685, 687 (Fla. 4th DCA 1971) (where the court found that the replacement of a screen enclosure with jalousies was a material alteration).

If the project will result in a material alteration or substantial addition to the common elements, the next step is to determine whether the project is necessary for maintenance or protection of the common elements. Florida appellate courts have found a maintenance exception to the requirement of unit owner approval.  Specifically, an alteration or addition is not subject to unit owner approval “when it is reasonably necessary for the maintenance, repair or replacement of a common element.” See Tiffany Plaza Condominium Association, Inc. v. Spencer, 416 So. 2d 823, 826 (Fla. 2d DCA 1982) (where the court held that the construction of a rock revetment on the beachfront is not subject to the constraints on material alterations if found to be necessary to protect beachfront from erosion or damage).  The court in Tiffany Plaza also found that approval is not required “[i]f, in the good business judgment of the association, such alteration or improvement is necessary or beneficial in the maintenance, repair or replacement of the common elements[.]” Id. Thus, the courts give deference to the business judgment of a condominium association board of directors in the maintenance of the common elements.

Furthermore, courts have made it clear that common element alterations or repairs are not subject to approval as material alterations just because they are expensive. In Cottrell v. Thornton, 449 So. 2d 1291, 1292 (Fla. 2d DCA 1984), the court determined that certain action taken by the association, including repairs to the swimming pool, could be undertaken without a unit owner vote where it was demonstrated that such action was required to protect the common elements from further damage.  The court in Cottrell went on to say the following:

The fact that a major expenditure is involved in making a substantial, necessary repair does not convert the repair into a material or substantial addition or alteration as is contemplated under the terms of the condominium documents, which would trigger a required vote of the unit owners.

Id. However, replacing a building material with one that costs much less will still be considered a material alteration, even if done for maintenance purposes, to the extent it changes the appearance of the condominium. See George v. Beach Club Villas Condo. Assoc., 833 So. 2d 816 (Fla 3d DCA 2002) (change from cedar shingles to terra-cotta tiles on roof mansards constituted a substantial and material alteration even though work was arguably necessary to maintain the common elements).  Whether changes to the common elements are material alterations or substantial additions, and whether they are necessary repairs, is a question of fact to be determined on a case-by-case basis. See id.

In light of the uncertainty surrounding the maintenance exception, a condominium association faced with doubt as to whether a project falls within the maintenance exception should 1) seek the approval required by the association’s governing documents or Florida Statute, and 2) seek the advice of legal counsel.