At first glance, Wednesday’s decision by the Fourth District Court of Appeals was a seemingly pedestrian alteration dispute over the authority of a condominium association’s board of directors to alter the condominium’s common elements; however, a further reading reveals an interesting, if not concerning, commentary on how to interpret terms in a declaration of condominium which should relegate a substantial portion of the decision to being considered dicta.

Further, the decision includes helpful guidance as to interpretation, generally, and specifically, the term “general-terms cannon.”

Posture.

In Lenzi v. The Regency Tower Ass’n, Inc., Case No. 4D17-2507 (Fla. 4th DCA June 20, 2018), Regency Tower Condominium unit owner Lenzi objected to the authorization by the Condominium Association’s board of directors of a lobby renovation swapping Carrara marble for ceramic tile without an owner vote. Apparently, the attributes of marble must have been paramount because Lenzi pursued his dispute. An adverse condominium mandatory pre-suit arbitration decision led to the trial court, and then to the District Court of Appeal.

Background.

The dispute hinged on whether the Regency Tower’s Declaration of Condominium’s use of the word “alterations” includes alterations encompassed within the Condominium Act’s use of the term “material alterations” in §718.113(2)(a) Fla. Stat. (2015). This provision stated in pertinent part:

If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions.

The Declaration of Condominium’s Article titled “Right of Association to Alter and Improve Property and Assessment Therefor,” stated that the board of directors had approval authority for “such alterations or improvements to the COMMON PROPERTY.” Mr. Lenzi asserted that the marble to tile swap was a material alteration for which the Condominium Act which required a 75% unit owner vote pursuant to §718.113(2)(a), because the Declaration did not contain the term "material alteration", instead granting the board the sole authority to approve "alterations", without further definition or qualifier.

Alteration.

It is recognized that an “alteration” has been defined very broadly, including “"To vary; change; or make different…” which lead over three decades ago to a sweeping definition of a “material alteration”:

We hold that as applied to buildings the term "material alteration or addition" means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.

Sterling Village v. Breitenbach, 251 So.2d 685, 687 (Fla. 4^th DCA, 1971).

In light of Sterling Village and its progeny should an affirmance of the trial court’s hold in favor of the Association that a unit owner vote was not necessary have been a swift and foregone conclusion? Under the rules of interpretation that have guided the courts, in the absence of a finding of an ambiguity there is no need for a court to interpret the meaning of a disputed provision. The analysis normally stops with a court stating the plain meaning of the words.

In this matter, the Regency Tower Declaration utilizes the term “alterations.” The Condominium Act’s adding the adjective “material” does not change the target noun “alteration.” The adjective “material,” by definition a modifier, creates a subset of all “alterations.” Thus, a “material alteration” is still an “alteration.”

Thus, the Condominium Act’s use of “material alteration” in §718.1130(2)(a) does not create an ambiguity. The Act’s use of the term “material alteration” does not change the fact that a “material alteration” is still a type of “alteration.”

Dicta.

While the Court could have simply concluded its opinion with a finding that the term "alterations" contained in the Declaration is unambiguous, and therefore not subject to interpretation, the Court continued its analysis. Perhaps the Court desired to provide a fuller explanation so as to not just shut out the unit owner with a PCA. However, the extended explanation by the Court of its rationale seems to upset decades of decisions addressing judicial interpretation, including: thou shall not interpret if not ambiguous!

Nevertheless, continuing in what appears to be dicta the Court cites to two decisions interpreting contracts in the divorce arena for the proposition that a court is to seek “a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.” This broad swath of “reasonableness” creates two concerns. First, reading text in context is a standard touchstone of covenant analysis; however, a court still must return to settled precedent requiring no interpretation unless an ambiguity exists.

Second, there is the potential creation of confusion as to whether covenants are subject to a test of “reasonableness” or rather in application the test of “clear and unambiguous.” “Reasonableness” may be appear de rigor when construing contracts of money and services, or identifying procedures. On the other hand, substantive property restrictions in covenants have traditionally been subject to a stricter test of “clear and unambiguous” as a threshold to enforceability.

Thus, the Regency Tower’s Declaration provision in question, how to approve an alteration, addresses procedures, specifically the process to approve an alteration. This provision does not address restrictions on an owner’s use of real property; thus while the threshold for enforcement may be reasonableness, this memo proposes that reasonableness is not the threshold for enforcement of a covenant imposing a use restriction. Thus, when at issue was a narrow procedure, and at that a clear procedure. hopefully the decision’s broad statement regarding the interpretation of a declaration’s terms, will be recognized as dicta, not in itself create an ambiguity!

Additional Drafting Principles.

Finally, for trial courts and practitioners, the decision reinforces the value of a good dictionary and the presumption created by use of a general term. While quoting from Black’s Law Dictionary the decision continues:

terms should be given their plain and unambiguous meaning as to be understood by the “man-on-the-street”

* * *

words of common usage should be construed in their plain and ordinary sense.

Citations omitted.

The decision also explains the “general-terms cannon” as follows:

The “general-terms canon” posits that “[w]ithout some indication to the contrary, general words (like all words, general or not) are to be accorded their full and fair scope [and] are not to be arbitrarily limited.”

* * *

[T]he presumed point of using general words is to produce general coverage—not to leave room for courts to recognize ad hoc exceptions . . . in the end, general words are general words, and they must be given general effect.

Citations omitted.

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

Condominium & Planned Development Law

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys