JOSEPH A. MARTIN AND VIRGINIA MARTIN, HIS WIFE, JOHN R. BOLTE AND MARIAN BOLTE, HIS WIFE, GERALDINE SUTER, HOWARD VIRGIN AND PRUDENCE VIRGIN, HIS WIFE, AND JOHN R. BATCHELOR AND LAURA BATCHELOR, HIS WIFE, APPELLANTS,
v.
OCEAN REEF VILLAS ASSOCIATION, INC., A FLORIDA CORPORATION, APPELLEE
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Unit owners in Ocean Reef Villas Condominium sought a declaratory judgment to prevent the management association from refinancing a mortgage on Unit 101 (the manager's apartment) without owner consent. The trial court granted summary judgment for the association, and the appellate court affirmed, holding that Unit 101 is association property, not a common element, and the association has statutory authority to refinance mortgages on units it owns.
The court held that Unit 101 is association property and not part of the common elements, and therefore the management association could refinance the mortgage by resolution without obtaining unit owner consent. Section 718.111(9), Florida Statutes, authorizes associations to purchase and mortgage units within the condominium, and no restriction on such authority appears in Ocean Reef's declaration, articles of incorporation, or by-laws.
[1] A unit designated as a manager's apartment, titled in the name of the association and subject to a purchase money mortgage, is considered association property and not par…
[2] A condominium association may refinance a unit owned by the association if the declaration, articles of incorporation, or by-laws do not prohibit such action.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“All property ... which is not within any living unit shall be deemed common property or common elements.”
Establishes the definition of common elements under the Declaration of Condominium, showing that Unit 101, being a living unit, falls outside this category.
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Join FLexlaw to unlock all legal intelligenceAppellants are unit owners in Ocean Reef Villas Condominium. The management association owns Unit 101, the manager's apartment, subject to a purchase …
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NORRIS, W.A., Jr., Associate Judge.
Appellants are unit owners in Ocean Reef Villas Condominium. Appellee is the management association of the condominium and the owner of the manager’s apartment therein known as Unit 101.
Appellants sought a declaratory judgment to determine whether the management association could refinance the purchase money mortgage on Unit 101 without first obtaining the consent of all the unit owners. The trial court entered summary judgment determining: (1) that Unit 101 was association property and not part of the common elements of the condominium; and, (2) that the management association could, by resolution, refinance the unit. We agree and affirm.
The Declaration of Condominium provides, in part:
The Developer has ... divided into ... 48 living units numbers 101 through 112_ The remaining part ... shall be the ‘common property’ or ‘common elements’.
All property ... which is not within any living unit shall be deemed common property or common elements....
The common elements shall include ... all other parts not included within these units. [Emphasis added],
Paragraph 11B of the association bylaws specifically authorizes the association to pay the expenses for the operation and maintenance of a manager’s apartment, including mortgage costs, which the association has been doing. It is undisputed that Unit 101 is a. living unit, title to which is, and has been, vested in the association, subject to a purchase money mortgage. Thus, Unit 101 is clearly not a part of the common elements of the association.
Section 718.111(9), Florida Statutes, authorizes an association to purchase units within the condominium and to mortgage them unless prohibited in either the declaration, articles of incorporation or bylaws. No such restriction applies to Ocean Reef Condominium; in fact, Article III of the articles of incorporation tracks the language of the statute.
We can find no authority, nor do appellants provide any, to construe the word “mortgage” to mean only a purchase money mortgage. In construing a statute or a declaration of condominium, words of common usage should be construed in their plain and ordinary sense. Koplowitz v. Imperial Towers Condominium, Inc., 478 So. 2d 504 (Fla. 4th DCA 1985).
Since the management association here was specifically authorized to purchase, hold, and mortgage Unit 101, Towerhouse Condominium, Inc. v. Millman, 475 So. 2d 674 (Fla.1985), cited by appellants, is inapposite.
AFFIRMED.
DANIEL, C.J., and COBB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Towerhouse Condo., Inc. v. Merton Millman and Lillian Aronoff, 475 So. 2d 674 (Fla. 1985)
- Koplowitz v. Imperial Towers Condo., Inc., 478 So. 2d 504 (Fla. 4th DCA 1985)