IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

LEXINGTON PLACE CONDOMINIUM 

ASSOCIATION, INC., A FLORIDA 

CORPORATION NOT FOR PROFIT,

Appellant,

v. Case No. 5D21-2644

LT Case No. 2020-CA-3981-O

MICHELLE FLINT AND KEVIN FLINT,

Appellees.

________________________________/

Opinion filed June 24, 2022

Appeal from the Circuit Court 

for Orange County,

Reginald K. Whitehead, Judge.

James E. Olsen, of The Law Offices 

of John L. Di Masi, Orlando, for 

Appellant.

Karen S. Cox and Michelle T. 

Reiss, of Appletone Reiss, PLLC, 

Tampa, for Appellees.

EDWARDS, J.
2

Without conducting a vote of the owners, Appellant, Lexington Place 

Condominium Association, Inc. (“Association”), through its Board of 

Directors (“Board”), made material alterations to the common elements by 

eliminating an existing dog park and a wallyball court. The Board also 

enacted a new rule restricting tenants’ rights to have pets that conflicted with 

an express provision of the Declaration of Condominium (“Declaration”).

Appellees, Michelle and Kevin Flint (“Flints”), own several units at Lexington 

Place, and their challenge to the material alterations and new rule was 

successful during non-binding arbitration. The Association sought review of 

the arbitration decision by pursuing a trial de novo in circuit court. The circuit 

court ruled in favor of the Flints and affirmed the arbitration award. We agree 

with the arbitrator and trial court that the Board ignored clearly relevant and 

controlling provisions of the Declaration. The Board lacked authority to make 

the material alterations to common elements or enact the new restrictive pet 

rule absent sufficiently favorable votes of the unit owners. Accordingly, for 

the reasons set forth below, we affirm the final summary judgment the trial 

court entered in favor of the Flints, and we grant their motion for appellate 

attorney’s fees. 

Material Alterations
3

Following the Association and its Board’s actions, the Flints promptly 

filed a Petition for Mandatory Non-Binding Arbitration with the Department of 

Business and Professional Regulation Division of Florida Condominiums, 

Timeshares and Mobile Homes (“DBPR”) against the Association, alleging, 

inter alia, that the Association in 2019 had violated its governing documents 

by removing two common elements, the dog park and wallyball court,1

without a vote of the unit owners. In February 2020, the DBPR arbitrator 

filed his Summary Final Order, which ruled in favor of the Flints. The 

Association filed a Motion for Rehearing And/Or Motion for Clarification, 

which was denied by the arbitrator. The Association then filed a complaint 

for trial de novo in circuit court in which it repeated the same arguments 

made to the arbitrator. The circuit court ruled in favor of the Flints and 

affirmed the arbitrator’s decision.

From arbitration through appeal, the Association has argued that they 

were authorized to eliminate the dog park and wallyball court by Article 8 of 

the Declaration which states:

8. Additions, Alterations, or Improvements by the Association. 

Whenever in the judgment of the Board of Directors, the 

Common Elements, the Association Property, or any part of 

1 Wallyball is volleyball played on a racquetball court where the players 

can hit the ball off of the walls. As noted by the Association, the removal of 

the wallyball court here involved removing the volleyball net from the 

racquetball court so the court could be used to play racquetball. 
4

either, shall require capital additions, alterations or 

improvements (as distinguished from repairs and replacements) 

costing in excess of $100,000 in the aggregate in any calendar 

year, the Association may proceed with such additions, 

alterations or improvements only if the making of such additions, 

alterations or improvements shall have been approved by a 

majority of the Unit Owners represented at a meeting at which a 

quorum is attained.

On the other hand, the Flints have consistently argued that the Association 

and its Board’s power to make material alterations to common elements was

governed and restricted by Section 6.4 which states:

6.4 Material Alterations or Substantial Additions. The 

Association shall not make any material alterations or substantial 

additions to the Common Elements or to real property which is 

Association Property, without the approval of a majority of the 

voting interests of the Unit Owners.

“Except as otherwise provided in this section, there shall be no 

material alteration or substantial additions to the common elements or to real 

property which is association property, except in a manner provided in the 

declaration as originally recorded or as amended under the procedures 

provided therein.” § 718.113(2)(a), Fla. Stat. (2019). “A declaration of 

condominium is ‘the condominium’s constitution.’” Beachwood Villas Condo.

v. Poor, 448 So. 2d 1143, 1145 (Fla. 4th DCA 1984) (quoting Schmidt v. 

Sherrill, 442 So. 2d 963, 965 (Fla. 4th DCA 1984)). 

The terms “material alteration” or “materially alter” in condominium 

declarations, when not otherwise defined, mean “to palpably or perceptively 
5

vary or change the form, shape, elements, or specifications of a building [or 

common element] . . . in such a manner as to appreciably affect or influence 

its function, use, or appearance.” Sterling Vill. Condo., Inc. v. Breitenbach, 

251 So. 2d 685, 687 (Fla. 4th DCA 1971); see also Tower House Condo., 

Inc. v. Millman, 410 So. 2d 926, 928 (Fla. 3d DCA 1981). It is indisputable 

that elimination of the dog park and wallyball court were material alterations 

of then-existing common elements. 

While Article 8 of the Declaration gives the Association and its Board 

certain authority to deal with day-to-day matters, subject to an annual dollar 

limit, it does not mention “material alterations.” The Association’s reliance 

upon Lenzi v. Regency Tower Ass’n, 250 So. 3d 103 (Fla. 4th DCA 2018), is 

misplaced. Regency Tower’s declaration explicitly authorized its board of 

directors to make material alterations to common elements with no 

requirement of owner approval, while the Association’s Declaration, 

specifically Section 6.4, explicitly requires a majority vote of owners prior to 

the material alteration of any common element. Thus, under the 

circumstances present here, the Association and its Board lacked authority 

to eliminate the dog park and wallyball court in the absence of the majority 

of owners voting their approval.

Rule Restricting Pet Ownership by Tenants
6

In their DBPR petition, the Flints also successfully challenged the 

Association and its Board’s 2019 adoption of Rule IX which states:

IX. PET RESTRICTIONS

Notwithstanding the provisions of Section 17.4 of [the 

Declaration]. Tenant(s) or Occupant(s) are not permitted to 

maintain household pets in a Unit. Section 17.4 of [the 

Declaration] permits “Unit Owners” to maintain pets within a Unit, 

and subjects only ‘Unit Owners” [sic] for the fines and penalties 

for violations of Section 17.4.

Any pets residing in units with a Tenant(s) or Occupant(s) at the 

time and date these rules are adopted, are considered 

“grandfathered” and not subject to the Pet restrictions herein. 

Existing pets are grandfathered in as to that specific pet. The 

right to a pet is not grandfathered. If the specific pet ceases living, 

a new pet is not permitted. 

(emphasis added).

The Flints argued that Rule IX amounted to an unauthorized 

amendment of the Association’s Declaration, specifically Section 17.4, which 

provides in pertinent part:

17.4 Pets. No more than two (2) housed pets (as may be defined 

and re-defined by the Association) shall be maintained in any 

Unit or and Limited Common Element appurtenant thereto. 

Section 17.4 also restricted the maximum total weight of pets to an aggregate 

of eighty pounds, prohibited any commercial activity involving pets, and 

provided for removal of pets that were dangerous, noisy, or otherwise a 
7

nuisance. Section 17.4 did not distinguish between owners versus tenants 

or other occupants when it came to pets.2

The Association and its Board’s adoption of Rule IX amounted to an 

attempt to amend the existing pet ownership rights set forth in Section 17.4. 

Article 6 of the Declaration governs amendments to the Declaration and 

includes two separate provisions: one for amendments done by the 

association and one for amendments done by the Board. Under Section 6.1, 

two-thirds of the voting interests of the unit owners must vote in favor of the 

amendment to the Declaration when proposed by the association. Under 

Section 6.2, if the Board wishes to amend the Declaration, it can do so upon 

unanimous vote of all directors; however, the amendments can only relate to 

very limited topics: (1) mortgages, (2) requirements by any governmental 

authority, or (3) “provisions of this Declaration to any provisions of the 

[Florida Condominium Act] or any rule promulgated thereunder, or any other 

applicable statute or regulation now or hereafter adopted or amended.”

It is undisputed the Board is authorized to enact rules and regulations,

but that power is not unlimited. “Clearly, a condominium board may not adopt 

rules modifying the provisions of a declaration without proper amendment [of 

2 During oral argument, the Association withdrew its contrary and 

inaccurate assertion found in its reply brief that Section 17.4 “expressly limits 

the right of pet ownership exclusively to unit owners.”
8

the declaration].” Mohnani v. La Cancha Condo. Ass’n, 590 So. 2d 36, 37–

38 (Fla. 4th DCA 1991) (quoting Gordon v. Palm Aire Country Club Condo. 

Ass’n, 497 So. 2d 1284, 1285 (Fla. 4th DCA 1986)). However, that is exactly 

what the Board attempted to do by adopting Rule IX. Given that the 

requirements of Section 6.1 for amending the Declaration were not followed, 

and Section 6.2 was inapplicable, the Association and its Board lacked 

authority to adopt Rule IX.

Conclusion

Accordingly, we affirm the trial court’s final judgment that affirmed the 

arbitrator’s decision and specifically ordered the Association to restore the 

dog park and wallyball court and further ordered the Association to 

immediately void, revoke, withdraw, and not enforce Rule IX. 

Flints’ Motion for Appellate Attorney’s Fees

Additionally, in accordance with section 718.303, Florida Statutes 

(2019), we grant the Flints’ motion for reasonable attorney’s fees as the 

prevailing party and remand for the trial court to conduct an evidentiary 

hearing to determine that amount. Further in accordance with that same 

statutory provision, we authorize the trial court to award any additional 

amounts that it determines to be necessary to reimburse the Flints for their 
9

share of any assessments that may be levied by the Association to fund its 

expenses of the litigation.

AFFIRMED; REMANDED FOR DETERMINATION OF REASONABLE 

ATTORNEY’S FEES.

LAMBERT, C.J., and COHEN, J., concur.