WAVERLY 1 AND 2, LLC v. WAVERLY AT LAS OLAS CONDO ASSOC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WAVERLY 1 AND 2, LLC, a Florida limited liability company,

Appellant,

v.

WAVERLY AT LAS OLAS CONDOMINIUM ASSOCIATION, INC.,

a Florida corporation, not-for-profit,

Appellee.

No. 4D16-2866

[March 21, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward

County; Cynthia G. Imperato and Barbara McCarthy, Judges; L.T. Case No.

CACE15-005333 (21).

Joel D. Eaton of Podhurst Orseck, P.A., Miami, for appellant.

Darrin Gursky and Carolina Sznajderman Sheir of Gursky Ragan, P.A.,

Miami, for appellee.

ON MOTION FOR REHEARING

SMALL, LISA, Associate Judge.

We deny appellee’s motion for rehearing en banc; however, we withdraw our

previously issued opinion and substitute the following opinion.

Waverly 1 and 2, LLC (“the Owner”) appeals the trial court’s final judgment

entered in favor of Waverly at Las Olas Condominiums Association, Inc. (“the

Association”). After a non-jury trial, the trial court concluded that the

Declaration of Condominium (“the Declaration”) required commercial unit

owners to obtain the written consent of the Association’s board before altering

landscaping appurtenant to their condominium units. Finding that the

Declaration does not require commercial unit owners to obtain written consent

of the Association’s board before altering landscaping appurtenant to their

condominium units, we reverse the final judgment and remand with directions

to enter judgment in favor of the Owner.

Background

Appellant is the owner of two commercial units at Waverly at Las Olas

Condominiums. Waverly at Las Olas Condominiums is a mixed use

condominium development which contains both residential and commercial

units.

The Association sought declaratory relief, injunctive relief, and damages

against the Owner for allegedly violating the Condominium’s Declaration. The

Association claimed that the Owner made unauthorized modifications to the

property’s landscaping scheme when the Owner removed two $18,000 canary

palm trees without prior written approval from the Association’s board.

The issue at trial was whether the Declaration requires commercial unit

owners to obtain the written consent of the Association’s board before altering

landscaping appurtenant to their condominium units.

The Declaration states in pertinent part:

2.42 “Unit” means part of the Condominium Property which is

subject to exclusive ownership, and except where specifically

excluded, or the context otherwise requires, shall be deemed to

include the Residential and the Commercial Units.

....

3.3(d) Patios, Balconies, Terraces, Lanais and/or Sidewalks

appurtenant to Commercial Units. Any patios, balconies, terraces,

lanais and/or sidewalks adjacent to a Commercial Unit, shall,

subject to the provisions hereof, be a Limited Common Element of

such Unit(s), so that the Commercial Unit Owner, from time to time,

to the extent permitted by law, may incorporate and use such areas

in connection with, or relating to, the operations from the

Commercial Unit. . . .

It is further understood and agreed that, anything herein contained

to the contrary notwithstanding, the external surfaces, terraces, and

balconies of each Commercial Unit shall be deemed Limited

Common Elements thereof and the Owners thereof may place on

such surfaces, or on the balconies appurtenant thereto such

signage, mechanical equipment and/or other items thereon as they

may desire, without requiring approval from the Association, the

Board, or any other Unit Owner . . . and may further make any

alterations or improvements, in the Commercial Unit Owner’s sole

discretion, to the Owner’s Commercial Unit and/or Limited Common

Elements appurtenant thereto or to the Common Elements. . . .

2

9.1 Consent of the Board of Directors. No Residential Unit

Owner shall make any addition, alteration, or improvement in or to

the Common Elements (including, without limitation, the

Residential Limited Common Elements and/or Commercial Limited

Common Elements), the Association Property, any structural

addition, alteration, or improvement in or to his or her Residential

Unit. . . . Without limiting the generality of this subsection 9.1, no

Unit Owner shall cause or allow improvements or changes to his or

her Unit, or to any Limited Common Elements, Common Elements

or any property of the Condominium Association which does or

could in any way affect, directly or indirectly, the structural,

electrical, plumbing, Life Safety Systems, or mechanical systems, or

any landscaping or drainage, of any portion of the Condominium

Property without first obtaining the written consent of the Board of

the Association. . . . The Board shall have the obligation to answer,

in writing, any written request by a Residential Unit Owner for

approval of such an addition, alteration, or improvement. . . .

9.3 Improvements, Additions or Alterations by Developer or

Commercial Unit Owners. 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 the consent or approval of the Association, the Board of

Directors or other Unit Owners, to make alterations, additions, or

improvements, structural and non-structural, interior and exterior,

ordinary and extraordinary, in, to and upon any Commercial Unit

owned by it or them and Limited Common Elements appurtenant or

adjacent thereto . . . .

17.4 Alterations. Without limiting the generality of section 9.1 . .

. no Residential Unit Owner shall cause or allow improvements or

physical or structural changes to any Residential Unit, Limited

Common Elements appurtenant thereto, Common Elements or

Association Property. . . .

The foregoing shall specifically not apply to Owners of the

Commercial Units. Specifically, the Owner of any Commercial Unit is

expressly permitted (without requiring consent from the Association

or any Unit Owner or any other party, other than applicable

governmental authorities to the extent that prior approval from them

is required), to install on the exterior walls of such Owner’s

Commercial Unit and any Limited Common Element or Common

Element balconies, terraces, patios, lanais, decks, or other areas

appurtenant thereto such signage, mechanical equipment, furniture,

3

antennas, dishes, receiving, transmitting, monitoring, and/or other

equipment thereon as it may desire and may further make any

alterations or improvements, in the Commercial Unit Owner’s sole

discretion, to such Commercial Unit, Limited Common Elements or

Common Elements.

At trial, the Association did not dispute that the Owner, as a commercial unit

owner, has extraordinary rights to alter the units. However, the Association

claimed that the Owner did not have the right to alter the landscaping

appurtenant to the condominium units before obtaining written approval from

the Association’s board. The Owner maintained that the Declaration allowed

the Owner, as a commercial unit owner, to alter the landscaping without

obtaining written consent from the Association’s board.

The trial court found that the landscaping was a Common Element of the

building. Additionally, the trial court found that section 9.1, when read in

conjunction with section 2.42, required both residential and commercial unit

owners to obtain written consent from the Association’s board before altering the

landscaping.

Analysis

A trial court’s interpretation of a declaration of condominium is subject to de

novo review. See Thomas v. Vision I Homeowner’s Ass’n, 981 So. 2d 1, 2 (Fla.

4th DCA 2007). “The constitution and by-laws of a voluntary association, when

subscribed or assented to by the members, becomes a contract between each

member and the association.” Id. (citation omitted). “Interpretation of a contract

is a question of law, and an appellate court may reach a construction contrary

to that of the trial court.” Id. (citation omitted).

The principles governing contractual interpretation are well settled in Florida.

“Generally, the intentions of the parties to a contract govern its construction and

interpretation.” Id. “The intent of the parties by their use of such terms must

be discerned from within the ‘four corners of the document.’” Emerald Pointe

Property Owners’ Ass’n, Inc. v. Commercial Const. Indus., Inc., 978 So. 2d 873,

877 (Fla. 4th DCA 2008) (citation omitted). Furthermore, the language being

interpreted must be read in conjunction with the other provisions in the contract.

Royal Oak Landing Homeowners Ass’n v. Pelletier, 620 So. 2d 786, 788 (Fla. 4th

DCA 1993). “Where contractual terms are clear and unambiguous, the court is

bound by the plain meaning of those terms.” Emerald Pointe, 978 So. 2d at 877.

Upon our de novo review of the trial court’s interpretation of the Declaration,

we conclude that the trial court erred in finding that sections 2.42 and 9.1 of the

Declaration require commercial unit owners to obtain the Association’s board’s

written consent before altering a unit’s landscaping. We find that section 9.3’s

4

first sentence, “Anything to the contrary notwithstanding, the foregoing

restrictions of this section 9 shall not apply to Developer owned Units or

Commercial Units,” means section 9.1 does not apply to Commercial Unit

Owners. Put simply, section 9.3 supersedes section 9.1 and any other

restrictions set forth in section 9. Furthermore, we agree with the Owner that

section 9.1’s requirement to obtain the Association’s board’s written approval

before altering the landscaping clearly applies only to “residential unit owners.”

The Association’s interpretation that sections 2.42 and section 9.1 require

commercial unit owners to obtain written authorization to alter landscaping is

not reasonable.

The Association relied on the following emphasized language contained within

section 9.1:

Without limiting the generality of this subsection 9.1, no Unit Owner

shall cause or allow improvements or changes to his or her Unit, or to

any Limited Common Elements, Common Elements or any property of

the Condominium Association which does or could in any way affect,

directly or indirectly, the structural, electrical, plumbing, Life Safety

Systems, or mechanical systems, or any landscaping or drainage, of

any portion of the Condominium Property without first obtaining the

written consent of the Board of the Association. . . . The Board shall

have the obligation to answer, in writing, any written request by a

Residential Unit Owner for approval of such an addition, alteration,

or improvement. . . .

The trial court erred in adopting the Association’s interpretation of this language

to the exclusion of, and consideration of, the remainder of section 9.1 and the

pertinent Declaration provisions set forth in sections 9.3 and 17.4. Notably,

section 9.1 only requires the Association’s board to answer in writing any written

request made by a residential unit owner for approval of such an addition,

alteration or improvement.

Conclusion

For the aforementioned reasons, the trial court erred in its finding that

commercial unit owners are required to obtain the Association’s board’s written

consent before altering landscaping appurtenant to their units. Thus, this Court

reverses the final judgment and remands with directions for the trial court to

enter final judgment in favor of the Owner.

Reversed and remanded for proceedings consistent with this opinion.

LEVINE and CONNER, JJ., concur.

5

* * *

6