The Declaration of Covenants, Conditions, and Restrictions go by many names—the CC&Rs, the condo rules, the Dec, the governing documents, and the HOA covenants. No matter what name you use, these CC&Rs strictly control the relationships between owners and their associations. Woodside Village Condominium Ass’n, Inc. v. Jahren, 806 So. 2d 452, 456 (Fla. 2002) (“strictly govern the relationships among the HOA and condominium unit owners and the condominium association.”). For this article and for ease of understanding, we will refer to these CC&Rs as “the declaration.” The declaration can be long and confusing. Having a guide to wade through all the legalese is imperative. This article is that guide, and should get you started in understanding your declaration. As shown below, owners and associations must read and construe the declaration with three rules in mind: (1) strictly construe the declaration – the owners and association only have those rights and duties specifically and explicitly provided, with no more and no less; (2) read the declaration as a whole document, page 1 to the end, to determine the original community developer’s intent as the drafter of the documents; and (3) read the declaration as guided by the subheadings in the documents, as these subheadings are the best indication of how the developer intended the declaration to be understood. See infra. Below is a detailed examination of the history and purpose of these three basic rules. If you have questions about condo and HOA rules, breach of those rules, association fiduciary duties, and other real estate matters, please contact Andrew Bernhard and Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-566-1969, www.bernhardlawfirm.com.

Absent owner consent or an amendment to the declaration, the use and enjoyment of rights that the declaration provides to owners cannot be impaired or diminished. Id. In interpreting the declaration, one must strictly construe the language in it to preclude any act or use not explicitly authorized therein, including those taken by the association through its board. Curci Village Condominium Ass’n, Inc. v. Maria, 13 So. 3d 1175, 1177 (Fla. 4th DCA 2009) (holding issues of fact existed in unit owner’s declaratory action whether condo board’s refusal to allow unit owner’s landscaping was arbitrary or capricious).[1] Moreover, one must determine the intention of the condo or community developer (as drafter of these documents) from examination of the whole declaration and not from the separate phrases or paragraphs. Cali v. Meadowbrook Lakes View Condominium Ass’n B Inc., 59 So. 3d 363, 367 (Fla. 4th DCA 2011) (reversing judgment in unit owner’s declaratory action against association to determine common elements and association obligations for maintenance thereto).[2]

In the case of Courvoisier v. Courvoisier, the Third District Court of Appeal (the “Third DCA”) interpreted a a declaration of condominium to determine competing claims to assign exclusive use rights to limited common elements; that Court’s method of interpretation shows us how one should walk through the declaration to make sense of it. Courvoisier Courts, LLC v. Courvoisier Courts Condo. Ass’n, Inc., 105 So. 3d 579, 580–82 (Fla. 3d DCA 2012) (reversing declaratory judgment granting limited common elements to Association despite developer assignment of exclusive use rights thereto under declaration § 3.3). The Courvoisier holding requires owners and associations to analyze declaration provisions by: (i) reading the plain language by strict construction, giving words only their clear meaning (id. at 580); (ii) beginning analysis by specifically focusing on the subsection with a title that matches the limited common elements at issue (id.); (iii) giving most weight to how the declaration allocates the assignment rights to the limited common elements under the properly titled subsection (id. at 581); then (iv) reading the declaration as a whole to determine the effect of other subsections on these particular limited common elements; but (v) prohibiting application of other subsections where it would violate the clear meaning of the contract in order to create an ambiguity; and (vi) prohibiting application of language from the end of a section, with a distinct subheading title, to modify language in prior subsections (id. at 582).

The Third DCA began its analysis by specifically focusing on the subsection with a title that matched the nature of the property, right, duty, or element at issue—there, “Automobile Parking Spaces and Storage Spaces” under subsection 3.3(a)(i). Id. at 580. The Third DCA gave most weight to how the declaration allocated the assignment rights to these limited common elements under this subsection, finding that only the developer had such assignment rights, not the association. Id. at 581. The Third DCA then turned to reading the declaration as a whole to determine the effect of other subsections on these particular limited common elements. Id.

The Third DCA held that applying subsection 3.4(i) on easements to limit the developer’s assignment rights under 3.3(a)(i) would violate the clear meaning of the contract in order to create an ambiguity. Id. The Third DCA emphasized that the language relied upon by the Association is located at the end of the section, has a distinct subheading title, and includes verbiage showing that the language more appropriately reads a limitation on rights in subsection 3.4 text immediately preceding it, and “does not apply to the limited common elements specifically addressed by Section 3.3(a)(i).” Id. at 582. The Third DCA found that only this reading complied with the rule of construction, and confirmed that only the developer (not the association) had the right to assign the exclusive use of the limited common elements. Id.

One can use this Third DCA analysis in Courvoisier v. Courvoisier as a guide to reading all declarations, CC&Rs, and other HOA and condo governing documents. Based on the above, one should always keep in mind that that owners, associations, and courts must read and construe the declaration and other governing documents by: (1) strict construction; (2) read as whole to determine developer’s intent; and (3) guided by subheadings in the documents. See supra.

If these interpretation methods still don’t yield a clear picture, keep in mind that even where an HOA or condominium association acts within its authority under the declaration, upon challenge, Florida law requires that the decision be shown to be not arbitrary, capricious, or in bad faith. See Hampton, 40 So. 3d at 787; Small, 141 So. 3d at 578; Burton, 149 So. 3d at 715; Garcia, 813 So. 2d at 978 (Fla. 2d DCA 2002) (reversing dismissal of unit owner action challenging condo association’s assignment of parking spaces to board officer where fact issues remained on reasonableness of decision). Any vote of the Association’s board must be conducted under a fiduciary duty to the unit owners.

This article should help get you started in making sense of your HOA or condo rules and regulations. If you have any questions about condo and HOA rules, breach of those rules, association fiduciary duties, and other real estate matters, please contact Andrew Bernhard and Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-566-1969, www.bernhardlawfirm.com.

[1] See also Brickell Bay Club Condominium Ass’n, Inc. v. Hernstadt, 512 So. 2d 994, 996 (Fla. 3d DCA 1987) (strictly construe declaration).

[2] Further, under Florida law, when interpreting contractual provisions on allocation of use rights, the inconvenience, hardship, or absurdity of one interpretation of a contract or its contradiction of the general purpose is weighty evidence that such meaning was not intended when the language is open to an interpretation which is neither absurd nor frivolous and is in agreement with the general purpose of the parties. See Branscombe v. Jupiter Harbour, LLC, 76 So. 3d 942, 948 (Fla. 4th DCA 2011) (holding parking agreement and long-term use of parking spaces provided substantial, competent evidence that an easement was created rather than a license).