Daily Development for Wednesday, August 11, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri firstname.lastname@example.org
WORDS AND PHRASES; “EXTERIOR WALLS:” Where a declaration provides that an association shall maintain “exterior walls” of units within the development, the responsibility is limited only to actual work on the outside walls, and does not include conducting repairs on the interior of the walls down to the interior surface.
Klak v. Eagles’ Reserve Homeowners’ Ass’n, Inc., 862 So.2d 947 (Fla. 2d DCA 2004)
Eagles’ Reserve was a association-managed neighborhood consisting of townhouses and villas affected by serious construction defects. It was not a condominium. Two groups of homeowners sued the association: The Klak Group sued to obtain a judicial ruling that the declaration of covenants and restrictions (“declaration”) did not give the association the authority to undertake the reconstruction necessitated due to the construction defects. The Berger group, on the other hand, sued the association for failure to diligently pursue the reconstruction and asked the court to dissolve the association and appoint a receiver.
The trial court held that the Association had the duty under the declaration “to repair and reconstruct the exterior walls of the dwelling unit ‘from the interior coat of paint to the outside of the buildings.’” The trial court reserved jurisdiction to appoint a receiver later if necessary to fulfill the Association’s obligations as determined by the trial court. The trial court appointed a receiver “to complete specified repairs to certain structures and authorized additional repairs to certain other structures.” The Klak group appealed.
The appeals court waded through the procedural details and addressed directly the question of “whether the declaration provides for the association to make structural repairs to the walls of the units in the development.” The relevant provision of the declaration stated that the Association had “the right and obligation to maintain the exterior of the Dwelling Units…” The trial court had concluded that this language authorized and mandated the Association to conduct repair work beginning at the outside surface and continuing through to the interior coat of paint.
The appeals court held that the trial court’s definition of “exterior of the Dwelling units” was “unreasonable and erroneous” because the trial court failed to consider the connotation of the word “exterior.” The court cited the definition of “exterior” from the Random House Unabridged Dictionary as “the outer surface or part.” In addition, the declaration paragraph 8.2 contains a further reference to “painting exterior building surfaces.” Therefore based on the connotation of the word “exterior” and the reference to painting of exterior surface, the Association’s authority is limited to maintaining solely the outside surface of the units. The appeals court reversed the trial court’s contrary ruling and remanded for proceedings consistent with its opinion.
Comment: Although the drafters thought they had written a clear directive, sometimes simple language just isn’t up to the task. The court doesn’t tell us exactly what the nature of the problem is, but it is quite possible that some extended interpretation was necessary. Instead of hauling out Random House, however, the court might well have attempted to examine the nature of the problem here in light of the probable intent of the parties as pertains to that problem. The court does do seek out the overall intent to a certain degree when it refers to language in the Declaration discussing “painting the exterior surfaces,” but surely that language doesn’t cover all of the repairs comprehended within the separate mandate in the Declaration that the association “maintain the exterior.”
Let us assume, as appears to be the case, that the problem in fact extended continuously from the outside to the inside studs. When one is repairing the “exterior,” where does one stop? If there is rot beneath the surface, and one repairs only the surface, is this really adequate “maintenance” of the surface?
On the other hand, if, upon removing the outside surface to remedy construction defects there, one discovers additional and unrelated problems beneath the surface, one would assume that they do not fall with the duty of maintenance of the surface.
Finally, there is the really tricky problem: the outside surface problem is, say, cracking of the stucco. Upon removing the stucco, we discover poorly designed wall joists or foundation problems that will continue to cause cracking in the future. Do we need to repair the walls or foundation, or just continuously patch the cracks as they appear? In the editor’s view, the Association’s duty here is just to continue to patch the cracks.
Readers are encouraged to respond to or criticize this posting.
Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.
DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 - 15 messages per work day.
Daily Developments are posted every work day. To subscribe, send the message
subscribe Dirt [your name]
To cancel your subscription, send the message signoff DIRT to the address:
for information on other commands, send the message Help to the listserv address.
DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT to the address:
DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.
DIRT has a WebPage at:
Members of the ABA Section on Real Property, Probate and Trust Law or of the National Association of Realtors can subscribe to a quarterly hardcopy report that includes all DIRT Daily Developments, many other cases, and periodic reviews of real estate oriented literature and state legislation by contacting Antonette Smith at (312) 988 5260 or email@example.com
To be removed from this mailing list, send an email message to firstname.lastname@example.org with the text SIGNOFF DIRT.
Please email email@example.com if you run into any problems.
See <http://www.umkc.edu/is/cs/listserv/unsubscribing.htm> for more information.