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HOA acted outside the
parameters of the community's governing documents
| [1] |
Florida Court of Appeals |
| [2] |
CASE No. 4D01-879 |
| [3] |
828 So.2d 399, 2002.FL.0003681 |
| [4] |
September 18, 2002 |
| [5] |
SOLOMON ARGOFF, ET AL., APPELLANTS, v.
RAINBERRY BAY HOMES ASSOCIATION, INC., ET AL., APPELLEES. |
| [6] |
Appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Stephen A. Rapp, Judge; L.T. Case No.
CL 98-11452 AN. |
| [7] |
Jodi A. Fischer and Stephen D. Jerome of Jerome &
Fischer, P.A., Fort Lauderdale, for appellants. |
| [8] |
Daniel S. Rosenbaum and Nicholas I. Igwe of Becker
& Poliakoff, P.A., West Palm Beach, for appellee Rainberry Bay Homes
Ass'n. |
| [9] |
The opinion of the court was delivered by: Per Curiam |
| [10] |
This appeal stems from some homeowners' claims that
their homeowners' association acted outside the parameters of the
community's governing documents in levying an assessment against only a
particular class of homeowner and in adopting the community's budgets. The
trial judge entered final summary judgment in favor of the Association,
finding that the actions of the Association were authorized. We disagree
and reverse. |
| [11] |
Rainberry Bay is a residential community consisting
of a total of 901 units. Five hundred sixty-five of these units are
governed by the Rainberry Bay Homes Association. Of this 565, 357 units
are zero lot line properties, 137 of which have atriums; 140 are detached
homes; and 68 are estate homes. The distinction between the three is the
size of the lots. |
| [12] |
The plaintiffs/appellants are owners of zero lot line
homes. In 1996, it was discovered that some of the zero lot line homes
with atriums had sustained water damage to the atrium walls. The
Association contracted to have the atrium homes inspected and, where
necessary, repaired or rebuilt at a total cost of approximately $578,000,
paid from Association funds. Thereafter, the 1999 budget was adopted.
According to the plaintiffs, the 1999 budget was really two budgets: one
for the zero lot line owners and another for the detached and estate
owners. The budget reflected that the Board (1) paid the $578,000 bill for
the atrium wall repairs/replacements by depleting the zero lot line
reserves and borrowing $282,394 from the detached and estate reserves and
(2) levied a $75 per quarter assessment against only the zero lot line
owners to repay the $282,394. |
| [13] |
The plaintiffs/appellants filed suit against the
Association, arguing that, under the governing documents, the Association
did not have the authority to levy the $75 assessment against only the
zero lot line owners but not the detached and estate owners (count I) and
did not have the authority to adopt two separate budgets, disparately
assessing the property owners for items other than maintenance costs
(count II). The trial court sided with the Association and the homeowners
have appealed. |
| [14] |
The community's governing documents provide in
relevant part: |
| [15] |
ARTICLE IV |
| [16] |
Homes Association - Covenant for Maintenance
Assessment |
| [17] |
Section 1. . . . each Owner . . . shall be deemed to
covenant and agree to pay to the Homes Association assessments for
maintenance as provided in Section 3 hereof; . . . |
| [18] |
The assessments . . . shall be imposed equally on all
Zero Lot Line Lots, equally on all Detached Lots, and equally on all
Estates Lots. However, the assessments upon the Zero-Lot Line Lots, the
Detached Lots, and the Estates Lots, need not be equal to each other. The
Homes Association, it [sic] its discretion, may distinguish between the
assessments based on the estimated difference in maintenance costs of the
Zero Lot Line Lots, the Detached Lots, and the Estates Lots. |
| [19] |
Section 2. Purpose of Assessments. The assessments
levied by the Homes Association shall be used exclusively for exterior
maintenance as provided in Section 3 hereof, for payment to the Master
Association as hereinafter referred to, or to promote the health, safety,
welfare and recreational opportunities of the Members of the Homes
Association and their families . . . . |
| [20] |
Section 3. Exterior Maintenance. The Homes
Association shall provide exterior maintenance for each building . . . as
follows: |
| [21] |
(a)paint, caulk, repair, replace and care for roofs
and roof ventilators, gutters and downspouts, exterior wood, wood
composition, stucco and "stone" building surfaces and fences. |
| [22] |
(b)maintain the landscaping, . . . , sprinkler heads,
walks, driveways and other exterior improvements . . . . |
| [23] |
(c)removal of mildew stain from roofs and sidewalks. |
| [24] |
(d)provide termite control . . . . |
| [25] |
It is the intention hereof that the Homes Association
shall perform only routine maintenance as described in this Section 3. |
| [26] |
. . . The responsibility of the Association is
limited to the maintenance specified in this Article. For example: in the
event of a roof leak, the Association shall not be responsible for repairs
to the interior of the home or for damage to contents. |
| [27] |
First, appellants argue that the trial court erred in
entering summary judgment in favor of the Association on count I because
unequal assessments are authorized only for the maintenance obligations
detailed in Article IV, section 3 and much of the work performed was not
within the scope of the Association's maintenance obligations. The
Association, on the other hand, contends that the plain language of the
documents permitted the Association to perform the work and to assess only
the zero lot line owners for the cost. "Construction of a contract is
ordinarily a question of law for the trial court provided that the terms
used are unequivocal, clear, undisputed, and not subject to conflicting
inferences." Segal v. Rhumbline Int'l, Inc., 688 So. 2d 397, 398
(Fla. 4th DCA 1997)(on rehearing). And, on appeal, the trial court's
construction of a contract is subject to de novo review. See Limehouse v.
Smith, 797 So. 2d 15, 17 (Fla. 4th DCA 2001); Royal Oak Landing Homeowners
Ass'n v. Pelletier, 620 So. 2d 786, 788 (Fla. 4th DCA 1993). |
| [28] |
We agree that the language of the declaration is
unambiguous. Unlike the trial judge, however, we find that the plain
language of the community's documents does not categorically cover all of
the atrium wall repairs/replacements at issue. First, section 1 states
that the owner agrees to pay the Association for "assessments for
maintenance as provided in Section 3." (emphasis added). This same
section goes on to state that assessments must be equal among all zero lot
line owners, equal among all detached lot owners, and equal among all
estate lot owners. As between the three classes of property owners,
however, the assessments need not be equal and the Association "may
distinguish between the assessments based on the estimated differences in
maintenance costs of the Zero Lot Line Lots, the Detached Lots, and the
Estates Lots." (emphasis added). Section 3 defines the scope of the
maintenance that the Association is authorized to perform and to assess
the homeowners for. Of particular importance to this appeal is the
language in subsection (a): "The Homes Association shall provide
exterior maintenance for each building within The Properties as follows:
(a) paint, caulk, repair, replace and care for . . . exterior wood, wood
composition, stucco and `stone' building surfaces." The word
"surface" is defined as "[t]he outer or the topmost
boundary of an object," "[a] material layer constituting such
boundary," "[t]he superficial or outward appearance of anything
as distinguished from inner substance or matter." The American
Heritage Dictionary of the English Language 1294 (1981). And, in addition
to the "surfaces" limitation, the Association's maintenance
obligations are further restricted to "only routine maintenance as
described in this Section 3." (emphasis added). |
| [29] |
The work orders filed in support of the Association's
motion for summary judgment, reflect that the nature of the
repairs/replacements varied widely. For example, in some units,
"cracked or excess" cement was removed, cracks were sealed, and
special "elastomeric" paint was applied to waterproof the atrium
wall. In others, "inspection holes" were cut into the atrium
wall, and, after finding no interior damage, the holes were repaired and a
"new metal cap" installed on the atrium wall to prevent future
water damage for a total cost of $785. In units where water damage was
discovered during the inspection, the repairs included, for example,
rebuilding the atrium wall, removing damaged baseboards under the living
room window, removing a section of water damaged drywall under the living
room window, and installing new drywall for a total cost of $16,519. In
still another unit, the repair/replacement included replacement of
"the main support beam for the roof and corner of house,"
removal of section of stucco above garage door, removal and installation
of drywall in a section of garage, and replacement of rotted fascia boards
over sliding glass doors. We cannot agree with the trial court's
conclusion that all of the work done, as reflected in the work orders,
falls within the scope of the "maintenance" that the documents
authorize the Association to perform and levy assessments for. While
placing a cap, sealant or elastomeric paint on the atrium wall may be
characterized as "repair[ing], replac[ing] . . . exterior . . .
building surfaces" and "routine maintenance," replacing
drywall in the garage, for example, clearly cannot. Consequently, we
reverse the summary judgment on count I and remand for further proceedings
consistent with this opinion. |
| [30] |
As for count II, we likewise agree that the
Association failed to demonstrate entitlement to summary judgment. In
count II, among other things, the plaintiffs alleged (1) that past budgets
filed by the Association demonstrated that it was assessing zero lot line
owners differently from detached and estate owners for items other than
maintenance costs and (2) that this unequal treatment was not authorized
by the documents, seeking to have the court require compliance with the
documents. Section 1 addresses the equality of the assessments among the
classes of property owners, authorizing a disparity for "maintenance
costs." A review of the community's budgets reflects that, at a
minimum, there are disputed issues of genuine fact regarding whether the
zero lot line owners are being assessed differently than the detached and
estate owners for items other than maintenance as defined in section 3.
Accordingly, we reverse the summary judgment on count II as well and,
again, remand for further proceedings. |
| [31] |
REVERSED and REMANDED. |
| [32] |
STEVENSON, SHAHOOD and MAY, JJ., concur. |
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