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Dear Poliakoffs,

I live in a large shared ownership community. Several years ago, two pedestrian walkways or bridges that connected parking lots A & B and parking lots D & E were removed by our association due to ongoing repairs and maintenance issues of the predominantly wood structures. This was done without a board or unit owner vote. As a result, it has created a safety issue as many residents must now walk the “wrong” way and then loop back in order to walk from one building to another or to go to the satellite pool (it is also quite inconvenient for residents). The grass is also very uneven and presents a fall hazard to our over-55 population.

Does the removal of these two walkways, absent a board or unit owner vote, constitute an illegal material alteration? What can be done to compel the association to replace these walkways? Is there a statute of limitations for remedying this action? The board has been stalling the obtaining of bids to replace the bridges, perhaps to “run out the clock.”

Signed, F.H.

Dear F.H.,

One thing that you don’t specify in your question is whether your community is governed by a homeowner’s association subject to Chapter 720 or a condominium association subject to Chapter 718. This makes a big difference, because the HOA Act does not discuss the concept of material alterations—that is a concept described only in the Condominium Act. A very few HOA declarations do contain language prohibiting the board from making alterations to the property without a membership vote, but absent that specific language your board would likely have the right to remove these walkways without any lot owner input.

Let’s assume instead that the association responsible for the walkways is subject to Chapter 718. The statute provides that any “material alterations” to the common elements or association property must be approved in the manner described in the declaration of condominium; or if the declaration is silent, by 75% of the total voting interests of the association. The statute does not define the term “material,” but it is the antonym of “immaterial” (rather than a reference to the materials used in construction). That is, does the change matter? Or as the seminal case on the subject (Sterling Village v. Breitenbach) describes it, is it a change that “palpably or perceptively” changes the “form, shape, elements, or specifications” of the property in a way that “appreciably affect[s] or influence[s] its function, use, or appearance”?

It's very hard for me to see a way that removing two pedestrian walkways or bridges would not be material or fit that definition. So, the next question I would ask is, does this somehow fit within an exception to the material alteration rule? The association may try to argue that removing the bridges fits within the “maintenance” exception to the rule, in that they removed them not to change the appearance or function of the property, but instead because they had proven impossible to maintain. I’m a bit skeptical of this argument, in that one could argue a complete removal of the bridges wasn’t necessary—they could be replaced with bridges and walkways built out of a different material that is easier to maintain, instead.

The primary remaining question then is whether the clock has run out to address this possible statutory violation. The statute of limitations on most enforcement actions is five years, and so it likely depends on how long ago the bridges were removed. If it was a decade ago, you are likely far too late to pursue the association in court; but if it was only two or three years ago, you should be able to file a lawsuit asking a court to compel the association to rebuild the bridges (after sending the appropriate pre-suit mediation demand or submitting the dispute to arbitration as desired). Keep in mind that, under the current statute, a material alteration cannot be retroactively approved, and so the board would have no option but to rebuild them if it were to lose the lawsuit.

If in fact you are past the statute of limitations, your only recourse is to help elect a board that feels similarly to you and will voluntarily rebuild the bridges (I do not think restoring the property to its original condition would itself be considered a material alteration requiring membership approval). And truly, that is the most reasonable option, in any event—if you can’t get most of the community to support your initiative, it’s likely that a legal battle would just inflame your neighbors, and it would be up to you to decide if the cost and uncertainty of a trial is worth forcing a bridge on the community that most of your neighbors don’t want.

Ryan Poliakoff, a partner at Backer Poliakoff & Foelster, LLP, is a Board-Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Email your questions to condocolumn@gmail.com. Please be sure to include your location.

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This article originally appeared on Florida Today: Poliakoff: Material alterations subject to five year statute of limitations