declaration

Condominium’s Declaration is a Contract

Posted by David Adelstein on June 28, 2018
Trial Perspectives / Comments Off on Condominium’s Declaration is a Contract

A condominium’s declaration is a contract.  As a unit owner, it serves as your contract and will govern your rights with your condominium association.  Just like any contract, disputes arise between a unit owner and the association regarding the interpretation of the declaration.  And, no different than any contract, the interpretation of a declaration is reviewed under a de novo standard of appellate review.  See Lenzi v. The Regency Tower Ass’n, 43 Fla.L.Weekly D1397a (Fla. 4th DCA 2018).

Lenzi serves as an example of a dispute involving a condominium unit owner and his association regarding the interpretation of a provision in the condominium’s declaration. In this case, the unit owner wanted the court to interpret a word used in the declaration restrictively, which the trial court rejected and the appellate court affirmed. 

When it comes to terms in a declaration (or any contract), terms are to be given their plain and ordinary meaning such that terms are construed in their ordinary sense.  See Lenzi, supra.  Unless a specific word is a defined term in the declaration (or contract), words are to be construed by their generally understood definition. Id.

If you are in a dispute with your condominium association regarding a provision or the interpretation of your declaration, make sure to consult with counsel to make sure your interpretation or basis of your dispute is colorable.   

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Strict Construction of Restrictive Covenants

Posted by David Adelstein on April 29, 2017
Trial Perspectives / Comments Off on Strict Construction of Restrictive Covenants

Restrictive covenants are to be strictly construed.   Restrictive covenants show up in Declarations or Covenants recorded in the public records that restrict a landowner’s (or unit owner’s) use to do something with his/her property.   Just keep in mind that a restrictive covenant will be strictly construed in favor of the landowner. See Leamer v. White, 156 So.3d 567, 572 (Fla. 1st DCA 2015). Hence, the precise language of the restrictive covenant is important because of the requirement of strict construction.

An example of such strict construction can be found in the recent opinion of Santa Monica Beach Property Owners Association, Inc. v. Acord, 42 Fla. L. Weekly D984a (Fla. 1st DCA 2017).   This case dealt with property located in a subdivision near the beach. A restrictive covenant was recorded in the public records relating to the subdivision that provided:

“Said land shall be used only for residential purposes, and not more than one detached single family dwelling house and the usual outhouses thereof, such as garage, servants’ house and the like, shall be allowed to occupy any residential lot as platted at any one time; nor shall any building on said land be used as a hospital, tenement house, sanitarium, charitable institution, or for business or manufacturing purposes nor as a dance hall or other place of public assemblage.”

Owners of property within the subdivision were advertising and using their property for short-term vacation rentals (so others could rent their residential property). The governing association contended that this violated the restrictive covenant because this was a business purpose and not a residential purpose. The problem, however, was that the restrictive covenant stated nothing about vacation rentals or that such rentals constituted a prohibited business purpose. Since the restrictive covenant is to be strictly construed, the court stated:

Finally, even if the restrictive covenants were susceptible to an interpretation that would preclude short-term vacation rentals, the omission of an explicit prohibition on that use in the covenants is fatal to the position advocated by the Association in this case because “[t]o impute such a restriction would cut against the principle that such restraints ‘are not favored and are to be strictly construed in favor of the free and unrestricted use of real property.’ ”  Indeed, the need for explicit language in the covenants is particularly important where the use in question is common and predictable, as is the case with short-term rentals of houses near the beach to vacationers.

Santa Monica Beach Property Owners Association, supra (internal citation omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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