In Florida, a material alteration to the common elements of a condominium generally refers to a change that palpably or perceptively varies, modifies, or changes the form, shape, elements, or specifications of a common element from its original design or plan, or existing condition.
This definition stems from case law, particularly Sterling Village Condominium, Inc. v. Breitenbach, 251 So. 2d 685 (Fla. 4th DCA 1971), where the court held that “material alterations or substantial additions” require unit owner approval under what is now Section 718.113(2), Florida Statutes.
Key Points on Material Alterations in Florida Condominiums:
- Unit Owner Approval Required – Section 718.113(2)(a), Florida Statutes, states that a condominium association may not make material alterations or substantial additions to the common elements or association property without the approval of at least 75% of the total voting interests unless the Declaration provides for a different method of approval.
- Case Law Interpretation – The Sterling Village case set the standard that an alteration is “material” if it changes the original design, form, or function of the common elements in a noticeable way.
- Other Methods of Approval – Under Section 718.113(2)(a), Florida Statutes, a condominium Declaration may be amended to lower the Unit Owner approval threshold of 75% of the total voting interests to a lower percentage of all voting interests or to a stated percentage of only those voting, in person or by proxy. A Declaration could also be amended to provide the Board of Directors authority to approve any material alteration, including without any limitation or with limitations, such as up to a certain dollar amount.
- Examples of Material Alterations:
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- Changing a grass lawn into a paved parking area.
- Replacing wood decking with a different material.
- Modifying the color or architectural design of a building exterior.
- Installing new amenities, such as a tennis court where there was none before.
- Non-Material Changes – Routine maintenance, repairs, or like-kind replacements that do not alter the appearance or function of the common elements are typically not considered material alterations and do not require unit owner approval.
It is important that your Association works closely with its legal counsel to review recent case law prior to making changes or alterations to the Common Elements to determine whether the Board of Directors has the authority to unilaterally make the proposed changes or alterations to the Common Elements or whether Unit Owner approval is required.