       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 25, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1531
                         Lower Tribunal No. 13-16460
                             ________________


         Laguna Tropical, a Condominium Association, Inc.,
                                      Appellant,

                                         vs.

                           Katia Marie Barnave,
                                      Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

     Robert C. Eber, for appellant.

     The Strauss Law Firm, and David A. Strauss (Fort Lauderdale), for appellee.


Before WELLS, SALTER and LOGUE, JJ.

     SALTER, J.

     Laguna Tropical, a Condominium Association, Inc. (“Association”), appeals

a final judgment in favor of a condominium unit owner, Ms. Barnave (“Owner”),
and her tenant, Ms. Garcia (“Tenant”). The Association sought injunctive and

other relief to enforce provisions of certain rules and regulations applicable to the

94 units in the condominium development under the recorded Declaration of

Condominium. We reverse the final judgment and remand the case to the trial

court for enforcement of the applicable rules as against the Owner, the Tenant, and

the condominium unit.

      Flooring and Noise

      The applicable rule is captioned “Noise.” It states, in pertinent part:

      Unless expressly permitted in writing by the Association, no floor
      covering shall be installed in the units other than any carpeting or
      other floor covering installed by the Developer. In any event, each
      unit owner shall have the duty of causing there to be placed
      underneath such floor covering, so as to be beneath such floor
      covering and the concrete slab,[1] generally accepted and approved
      materials for diminution of noise and sound, so that the flooring shall
      be adequately soundproof.

      Another provision, this one in Article X, Paragraph D of the recorded

Declaration of Condominium, prohibits a unit owner from altering, modifying or

replacing the interior of a unit without the prior consent of the Association’s Board

of Directors. Paragraph B of that Article further requires that maintenance, repairs,

and replacements within a unit’s interior “shall be done without disturbing the

rights of other unit owners.”

1  The provision only makes sense if the padding would be placed beneath the
carpeting but above, not beneath, the concrete slab, or “between,” not beneath the
carpeting and slab.

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      In 2010, the Owner concluded that it would be necessary to replace the

carpeting in her unit. A previous tenant had allowed a pet (prohibited by the rules

and regulations, but kept in the unit without the Owner’s knowledge) to ruin the

original carpet. The Owner replaced the soiled carpeting with laminated flooring.

      In 2011, the resident in the unit below the Owner’s second-story unit

complained that the noise was disturbing his occupancy.            Ultimately, the

downstairs resident complained to the Association that the Owner and Tenant were

in violation of the rules and asked the Association to enforce the noise and

carpeting provisions. After a written notice by the Association, exchanges of

letters, and an unsuccessful mandatory alternative dispute resolution process before

the Division of Florida Condominiums,2 the Association filed a lawsuit against the

Owner and Tenant to enforce the flooring restrictions.

      Selective Enforcement; Prior Written Approval

      In the pleadings, at trial, and here, the Owner asserted affirmative defenses

alleging (1) “selective enforcement” of the flooring restrictions and (2) an alleged

approval of the laminated flooring by the president of the Association. The Owner

assumed the burden of proof as to each of these issues. The trial court found the




2  § 718.1255(4), Fla. Stat. (2013). The parties engaged in a further unsuccessful
attempt to mediate the dispute before the non-jury trial.


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selective enforcement defense to be well taken, and entered a final judgment in

favor of the Owner. This appeal ensued.

      The interpretation of the statutes, rules, and declaration of condominium

provisions are reviewed here de novo.3        The Owner’s selective enforcement

defense asserts that the Association only actually enforced the flooring (carpeting)

restriction as against eleven of the condominium development’s 94 units. It is

undisputed, however, that those eleven units were the only exclusively upstairs

units. Eleven other units were exclusively downstairs units below the upstairs

units, while the remaining 72 units were configured to include both first-floor and

second-floor residential space within the same unit.

      The record also (and predictably) includes no evidence that occupants of the

72 upstairs-downstairs units ever complained to the Association about the noise

coming from upstairs, since they owned or leased the upstairs portion of the same

unit. Further, there were a handful of prior noise complaints by downstairs-only

occupants below upstairs-only units that had culminated in successful enforcement

action by the Association (i.e., the replacement of prohibited tile or wood flooring

in the upstairs-only unit by the specified carpeting and underlying “generally

accepted and approved materials for diminution of noise and sound”). Finally,

3  “Hence, because condominiums are a creature of statute courts must look to the
statutory scheme as well as the condominium declaration and other documents to
determine the legal rights of owners and the association.” Woodside Vill. Condo.
Ass’n v. Jahren, 806 So. 2d 452, 454 (Fla. 2002).

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there was no evidence that the Association had declined to enforce a noise

complaint regarding a downstairs-only unit based on a replacement of carpet with

tile or wood flooring.

      This case is readily distinguishable from the selective enforcement cases

relied upon by the appellees. In Prisco v. Forest Villas Condominium Apartments,

Inc., 847 So. 2d 1012 (Fla. 4th DCA 2003), for example, an association bylaw

prohibited any pets other than fish or birds. A unit occupant who kept a dog in her

unit was sued by the association to enforce the bylaw. The unit owner submitted

evidence that another owner kept two cats on the premises, and other occupants

also kept cats within their units. The trial court granted summary judgment for the

Association on “selective enforcement,” concluding that there were rational

differences regarding enforcement as against cats versus dogs (“[d]ogs clearly

bark, cats do not, dogs need to be walked outside of their home, cats do not as they

use litter boxes for the most part,” as the trial judge found). Id. at 1014. The

Fourth District reversed and remanded:

      The restriction is clear and unambiguous and states that, other than
      fish and birds, “no pets whatsoever” shall be allowed. The fact that
      cats are different from dogs makes no difference. What does matter is
      that neither a cat nor a dog is a fish or a bird, so both should be
      prohibited.

Id. at 1015.




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      In the present case, the prohibition on floor coverings other than padded

carpet is plainly intended to avoid noise complaints. No selective enforcement was

proven, as no complaints have been shown to have arisen regarding any units

except second-floor only units like the Owner’s unit. It cannot be said that the

enforcement action in the present case “constituted unequal and arbitrary

enforcement of the restriction.” White Egret Condo., Inc. v. Franklin, 379 So. 2d

346, 352 (Fla. 1979).

      The Owner also argues that the Association president confirmed in an

exchange of emails that the Owner’s laminated wood flooring was acceptable.4

This argument likewise fails, as the rules and declaration of condominium plainly

require consideration and written approval by the Association’s board of directors,

not merely one of its officers. Curci Vill. Condo. Ass’n, Inc. v. Maria, 14 So. 3d

1175 (Fla. 4th DCA 2009) (condominium association not estopped from enforcing

a restriction where written consent was not obtained from the board of directors (as

specified), as opposed to a verbal consent from the president). The record in the

present case contains no delegation by the Association of authority to approve

installations of the kind involved in this case by its president. The Owner admitted

that she did not submit a request for approval of the wood flooring to the

Association’s board.

4  This testimony was disputed, and the Owner did not introduce into evidence the
alleged emails, as her computer had crashed.

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      For all these reasons, we reverse the final judgment in favor of the Owner

and remand the case for enforcement of the flooring restrictions as sought by the

Association.




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