A frequent question from a board of directors of a Florida condominium association is whether an action requires membership approval, or, whether a board vote would suffice. In the instance of painting the condominium association’s building and common elements, the answer is: it depends. If the board’s intention is to re-paint the building in the existing color then a membership vote is most likely not required, as this would be likely deemed a maintenance function properly carried out by the board through authorities set forth in the association’s governing documents. However, if the intent is to re-paint a different color, then a membership vote may be required as it could be considered a “material alteration” of the common property. The seminal case on this issue defined a “material alteration” as “to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.” Sterling Village Condominium, Inc. v. Breitenbach, 251 So. 2d 685, 687 (Fla. 4th DCA 1971). Section 718.113(2)(a) of the Florida Statutes provides that a material alteration of common elements or association property may only be undertaken in accordance with the procedures set forth in the association’s governing documents, and if the documents do not specifically provide a procedure for approving such action, then seventy five percent (75%) of the total voting interests must approve. While not uniformly consistent as to all cases involving material alteration, as to the issue of painting a building a different color, appellate and arbitration decisions are consistent in finding that the change of color constitutes a material alteration, and thus approval should be sought in the manner set forth in the governing documents (or, if silent, with 75% approval pursuant to F.S. 718.113(2)(a)).
As always, counsel should be sought in order to determine the proper procedure for any type of an action that may constitute a material alteration.