Page 15 - Boca ViewPointe - September '20

September 2020 Viewpointe, Page 15
New Appellate Court Opinion Addresses Approval

Requirement Regarding Material Alterations Or Substantial

Additions To A Condominium’s Common Elements

The Third District Court of Appeal in Miami recently Several unit owners sued the association and board the special assessments and the unit owners appealed.
issued a decision involving the Shelborne, a condominium/ members, arguing that the special assessments violated Section 718.113(2)(a) governs the approval
hotel in Miami Beach. The decision, Bailey v. Shelborne the Condominium Act, specifically Fla. Stat. § 718.113(2) requirements for “material alteration” or “substantial
Ocean Beach Hotel Condominium Association, Inc., may (a). In reviewing the evidence—which included the additions” as it relates to common elements. The current
be of impact to many community associations, including association’s binders detailing every construction version states in part:
HOA’s and country clubs in residential communities. item and documentation to support the position that Except as otherwise provided in this section, there shall
The Shelborne underwent two (2) major construction construction was necessary maintenance—the trial be no material alteration or substantial additions to the
projects where it was totally closed for about 15 months. court determined that each of the construction items common elements or to real property which is association
Before the construction commenced, only the Board of were necessary repairs and maintenance except for two property, except in a manner provided in the declaration
Directors voted to approve the projects and levy special (2) items: pool paver repairs that allowed for additional as originally recorded or as amended under the procedures
assessments totaling more than $30 million dollars to drainage and the reinforcement of concrete underneath provided therein. If the declaration as originally recorded
fund the projects. It was not until after the construction’s the townhomes. However, relying upon the fact that 75% or as amended under the procedures provided therein
completion that more than 75% of the unit owners voted of the unit owners voted to approve these two (2) items does not specify the procedure for approval of material
to approve construction. after construction was completed, the trial court upheld alterations or substantial additions, 75 percent of the
total voting interests of the association must approve the
alterations or additions before the material alterations or
substantial additions are commenced. (Emphasis added).
In Sterling Village Condo., Inc. v. Breitenbach, the
Fourth District Court of Appeal in West Palm Beach
concluded that “material alternation or addition” means
Financial Planning - Raymond James Financial Services, Inc. “to palpably or perceptively vary or change the form,
shape, elements or specifications of a building from its
It Should Be Personal Arthur Rottenstein original design or plan, or existing condition, in such a
manner as to appreciably affect or influence its function,
Registered Securities Principal
The Manager of one of Raymond James 561-241-6616 use, or appearance.”

The appellate court in the Shelborne case explained
executive council level branches credits his ArthurRottenstein@ that unit owner approval is not required for maintenance
RaymondJames.com
father, a tuxedo shop owner in Yonkers, New bocaratonfinancialplanner.com of common elements under section 718.113(1). Therefore,
York for his success. Arthur Rottenstein, a in interpreting the Condominium Act, the court concluded
Raymond James Registered Securities Principal that, should maintenance also be a material alteration or
serving Boca Raton, learned important life substantial addition to the common elements, unit owner
lessons from his father, who owned the popular Joseph Carpenito approval under section 718.113(2)(a) is not required.
clothing shop, and his mother, a lifelong However, the appellate court concluded that section
advocate for the less fortunate. A survivor of the Financial Advisor 718.113(2)(a) requires 75% approval before construction
starts. The Shelborne case dealt with an earlier version
Nazi Holocaust, his father’s horrific experience 561-241-6616 of the statute, which did not reference approval “before”
did not diminish his benevolence; he genuinely Joseph.Carpenito@ the commencing of material alterations or substantial
raymondjames.com.
cared about his customers and connected with additions. In sum, the appellate court agreed with the trial
them easily. 301 Yamato Road, Suite 3160 court’s decision because the projects constituted necessary
Mr. Rottenstein began his lengthy career in Boca Raton, FL 33431 maintenance, except for the two (2) construction items
finance in 1982, moved his practice to Boca where the unit owner vote after construction was ruled as
Raton in 1991. Generally, his clients are affluent families and business owners. invalid. The Shelborne case is not final until any motion
“I keep my book of business to a manageable level. It’s all-important to me to know we provide for rehearing is ruled on by the appellate court.
our clients high quality and dedicated personal service and demonstrate that we genuinely care. While there is no comparable statute in Chapter 720
Advisors who try to work with 500 to 600 and more investors at one time can’t possibly keep up or Chapter 617, which govern homeowners’ associations
with their clients’ changing financial lives and family dynamics,” says Rottenstein. and some country clubs, one must review the association’s
governing documents for any provisions regarding
material alternations and caps on expenditures, including
Genuine Compassion, Remarkable Creativity any voting requirements for the homeowners or club
members. It is submitted that the reasoning set forth in
Like father, like son, Mr. Rottenstein has instilled many of the same traits in his team. In recruiting the Shelborne case may well be applicable to HOA’s
professionals to his practice, he first and foremost seeks out those who share his commitment to client and country clubs when examining construction projects
care, like Joseph Carpenito, a young man he hired and has trained for about 10 years. “My primary that include necessary maintenance combined with some
concern is ensuring my clients will be well-served for decades and generations ahead,” he says. material alterations and/or substantial additions.
Rottenstein, Carpenito, and the rest of the Boca Raton Financial Planners team take an Please consult with an experienced community
individualized approach to retirement planning, estate planning, money management, and more. association attorney when considering approvals for
As fee-only advisers, they tailor plans and strategies for each individual, taking into account major construction projects.
foreseen risks while considering the unexpected. “Each client has the advantage of our collective
experience and training,” explains Rottenstein. “This collaborative approach allows us to find Sachs Sax Caplan, P.L., Peter S. Sachs 
creative solutions.” Rottenstein and his team also manage client accounts to help minimize tax
burdens and capitalize on market opportunities. Please Be Courteous
The group is well respected for their work in the area of estate planning. “Creativity is key,”
says Rottenstein, who has worked with family owned businesses, and helped with various aspects Pedestrians have
such as transitions, and business sales. “The use of trusts and other strategies helps ensure a
client’s assets are passed down to heirs in accordance with the client’s wishes, while minimizing the right of way!
tax obligations to the extent possible.
Despite their focus on a manageable book of business rather than seeking high volume, Boca
Raton Financial Planners is ranked in the top 23 percent of Raymond James branches nationwide
as of April 2019 and Mr. Rottenstein was included in the Executive Council* of Raymond James
four out of the last five years.

“We’re very proud of our track record of success,” says Rottenstein. “But above all, developing
strong client relationships and satisfaction is and will always be our priority.”

Arthur Rottenstein is a Registered Securities Principal and Branch Manager with Raymond James Financial Services, Inc. in Boca
Raton and founder of Portfoliorepair.com. He has been managing the financial affairs of a number of select families in South Florida
since 1982. Please feel free to call for an appointment at (561) 241-6616 or email him at arthur.rottenstein@raymondjames.
com. Please feel free to visit his website at bocaratonfinancialplanner.com.Securities offered through Raymond James Financial
Services, Inc. Member FINRA/SIPC. Investment Advisory Services offered through Raymond James Financial Services Advisors, Inc.

*Membership is based on prior fiscal year production. Re-qualification is required annually. The ranking may not be representative
of any one client’s experience, is not an endorsement, and is not indicative of advisors’ future performance. No fee is paid in
exchange for this award/rating. Investing involves risk and investors may incur a profit or a loss. This material is being provided for
information purposes only and is not a complete description, nor is it a recommendation. Any opinions are those of the author and
not necessarily those of Raymond James. You should discuss any tax or legal matters with the appropriate professional.
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