Welcome to the Land of Declarations

Florida is the land of HOAs and condominium associations. These are private corporate bodies that govern residents, tenants, and investors’ use of their real estate. These associations derive their authority from each land or unit owners’ agreement to be bound by a set of private contracts—the governing documents—that predetermine what you can and cannot do with your property and while in the common areas of the community. These private contracts on the real estate (also known as covenants) are generally called the Declaration of Condominium or the Declaration of Covenants. It is crucial to become familiar with these covenants to know how you can peacefully and successfully exist in most Florida communities. Thus, it is also crucial to know the ground rules of how these covenants should be read, what to do with grey areas in the language, and how a court may lean if there is a question on covenant interpretation. This article provides those ground rules—three key guidelines to approaching your covenants. If you have any further questions about interpretation of a Declaration of Condominium or a Declaration of Covenants, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com, 786-871-3349.

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Guideline 1 – Read the Declaration as a Whole

First, Florida law provides that the court and the parties must read and construe the Declaration of Covenants and other governing documents by: (1) strict construction; (2) read as whole to determine the parties’ intent; (3) guided by subheadings therein; (4) giving most weight to how the Declaration allocates rights under the properly titled subsection; and (5) prohibiting application of other subsections where it would violate the clear meaning of the contract in order to create an ambiguity or modify language in prior subsections. Woodside Village Condominium Ass’n, Inc. v. Jahren, 806 So. 2d 452, 456 (Fla. 2002); 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).

Guideline 2 – Read the Declaration Strictly

Second, Florida law requires the court to preclude any act or use not explicitly authorized by the Declaration of Covenants, including those taken by an HOA through its board or through anybody else. Curci Village Condominium Ass’n, Inc. v. Maria, 14 So. 3d 1175, 1177 (Fla. 4th DCA 2009); Cali v. Meadowbrook Lakes View Condo. Ass’n B Inc., 59 So. 3d 363, 367 (Fla. 4th DCA 2011). Covenants that run with the land “must be strictly construed in favor of free and unrestricted use of real property.” Bendo v. Silver Woods Community Ass’n, Inc., 159 So. 3d 179, 180 (Fla. 5th DCA 2015). An ambiguous covenant must be construed in favor of the landowner. Id. Language in a document is ambiguous when its provisions are fairly susceptible to more than one interpretation. Id. Where one construction leads to an illogical result, it should be rejected. Id.

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Guideline 3 – Read the Declaration with Common Sense

Third, under Florida law, when interpreting contractual provisions on allocation of use rights, the inconvenience, hardship, or absurdity of one interpretation (or an interpretation’s contradiction to the general purpose of the Declaration) 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).

In Sum

With these three guidelines, you should be able to get starting knowing what an association might do, what to do with grey areas in the covenants’ language, and how a court may lean if there is a question on covenant interpretation. If you have any specific questions about interpretation of a Declaration of Condominium or a Declaration of Covenants, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com,www.bernhardlawfirm.com, 786-871-3349.

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