Continuing the end of year clean up, when faced with three different covenant provisions addressing the same issue, how would a court proverbially “split the baby” was addressed in Waverly 1 and 2, LLC v. Waverly at Las Olas Condominium Association, Inc., Case No. 4D16-2866, 42 Fla. L. Weekly D2569 (Fla. 4th DCA December 6, 2017).

Appellant, the Waverly LLC, owned two commercial units at the “mixed use” Condominium. The Waverly LLC apparently removed two $18,000.00 canary palm trees which were “appurtenant” to the owner’s condominium units. The Declaration provided in pertinent part as follows:

9.1 … no unit owner shall cause or allow any improvement or changes to… any landscaping… without first obtaining the written consent of the Board….

9.3 Anything to the contrary notwithstanding, the foregoing restrictions of this section 9 shall not apply to Developer owned Units or Commercial Units…. Additionally, each commercial unit owner shall have the right, without consent or approval of the Association, the Board of Directors or other Unit Owners, to make alterations….

17.4 The foregoing shall specifically not apply to the Owners or the Commercial Units specifically the Owner of Commercial Units expressly permitted….

After a non-jury trial the trial court found that the landscaping was a Common Element and that the commercial unit owners were required to obtain written consent before altering landscaping appurtenant to their unit.

The Court recited what we may commonly refer to as “judicial rules of interpretation” First priority is the intent of the parties which should be “discerned from within the ‘four corners of the document,’” quoting Emerald Pointe POA v. Commercial Const., 978 So. 2d 873, 877 (Fla. 4th DCA 2008). In addition, interpreted language must be “read in conjunction with the other provisions….” Royal Oak Landing HOA v. Pelletier, 620 So. 2d 786, 788 (4th DCA 1993). Finally, quoting again from Emerald Pointe “Where contractual terms are clear and unambiguous, the court is bound by the plain meaning of those terms.” 978 So. 2d at 877.

Thus, the “Notwithstanding” language of Article 9.3 governs, and the judgment reversed with directions on remind to enter judgment in favor of the owner!

This decision is helpful to the practitioner in re-enforcing the rules of judicial interpretation. Of further significance to the Association practitioner was the court’s commentary on the “rule of adverse construction.” This rule is invoked “where a contract is ambiguous, it will be interpreted against the drafter.” This is to be a “rule of last resort”, applied only if the party’s intent cannot be “conclusively determined.” citing again to Emerald Pointe at 878 n.1.

As we draft covenants, either originally as developer’s counsel or amendments as association counsel, this decision reminds of the potential problem of utilizing the “notwithstanding” language and taking to help ensure that the end result is clear, albeit recognizing that the true test may be decades latter and with absolute clarity of 20-20 hindsight.

Happy drafting!

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2018 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys