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 dirt@umkc.edu

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.

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