              DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

         WAVERLY 1 AND 2, LLC, a Florida limited liability company,
                             Appellant,

                                        v.

       WAVERLY AT LAS OLAS CONDOMINIUM ASSOCIATION, INC.,
                  a Florida corporation, not-for-profit,
                               Appellee.

                                 No. 4D16-2866

                                [December 6, 2017]

  Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; Cynthia G. Imperato and Barbara McCarthy, Judges; L.T. Case No.
CACE15-005333 (21).

   Joel D. Eaton of Podhurst Orseck, P.A., Miami, for appellant.

  Darrin Gursky and Carolina Sznajderman Sheir of Gursky Ragan, P.A.,
Miami, for appellee.

SMALL, LISA, Associate Judge.

   Waverly 1 and 2, LLC (“the Owner”) appeals the trial court’s final judgment
entered in favor of Waverly at Las Olas Condominiums Association, Inc. (“the
Association”).  After a non-jury trial, the trial court concluded that the
Declaration of Condominium (“the Declaration”) required commercial unit
owners to obtain the written consent of the Association’s board before altering
landscaping appurtenant to their condominium units.          Finding that the
Declaration does not require commercial unit owners to obtain written consent
of the Association’s board before altering landscaping appurtenant to their
condominium units, we reverse the final judgment and remand with directions
to enter judgment in favor of the Owner.

                                  Background

   Appellant is the owner of two commercial units at Waverly at Las Olas
Condominiums.      Waverly at Las Olas Condominiums is a mixed use
condominium development which contains both residential and commercial
units.
   The Association sought declaratory relief, injunctive relief, and damages
against the Owner for allegedly violating the Condominium’s Declaration. The
Association claimed that the Owner made unauthorized modifications to the
property’s landscaping scheme when the Owner removed two $18,000 canary
palm trees without prior written approval from the Association’s board.

   The issue at trial was whether the Declaration requires commercial unit
owners to obtain the written consent of the Association’s board before altering
landscaping appurtenant to their condominium units.

   The Declaration states in pertinent part:

      2.42    “Unit” means part of the Condominium Property which is subject
      to exclusive ownership, and except where specifically excluded, or the
      context otherwise requires, shall be deemed to include the Residential and
      the Commercial Units.

      ....

      3.3(d) Patios, Balconies, Terraces, Lanais and/or Sidewalks
      appurtenant to Commercial Units. Any patios, balconies, terraces,
      lanais and/or sidewalks adjacent to a Commercial Unit, shall,
      subject to the provisions hereof, be a Limited Common Element of
      such Unit(s), so that the Commercial Unit Owner, from time to time,
      to the extent permitted by law, may incorporate and use such areas
      in connection with, or relating to, the operations from the
      Commercial Unit. . . .

      It is further understood and agreed that, anything herein contained
      to the contrary notwithstanding, the external surfaces, terraces, and
      balconies of each Commercial Unit shall be deemed Limited
      Common Elements thereof and the Owners thereof may place on
      such surfaces, or on the balconies appurtenant thereto such
      signage, mechanical equipment and/or other items thereon as they
      may desire, without requiring approval from the Association, the
      Board, or any other Unit Owner . . . and may further make any
      alterations or improvements, in the Commercial Unit Owner’s sole
      discretion, to the Owner’s Commercial Unit and/or Limited Common
      Elements appurtenant thereto or to the Common Elements. . . .

      9.1     Consent of the Board of Directors. No Residential Unit
      Owner shall make any addition, alteration, or improvement in or to
      the Common Elements (including, without limitation, the
      Residential Limited Common Elements and/or Commercial Limited
      Common Elements), the Association Property, any structural
      addition, alteration, or improvement in or to his or her Residential


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Unit. . . . Without limiting the generality of this subsection 9.1, no
Unit Owner shall cause or allow improvements or changes to his or
her Unit, or to any Limited Common Elements, Common Elements
or any property of the Condominium Association which does or
could in any way affect, directly or indirectly, the structural,
electrical, plumbing, Life Safety Systems, or mechanical systems, or
any landscaping or drainage, of any portion of the Condominium
Property without first obtaining the written consent of the Board of
the Association. . . . The Board shall have the obligation to answer,
in writing, any written request by a Residential Unit Owner for
approval of such an addition, alteration, or improvement. . . .

9.3     Improvements, Additions or Alterations by Developer or
Commercial Unit Owners.              Anything to the contrary
notwithstanding, the foregoing restrictions of this section 9 shall not
apply to Developer owned Units or Commercial Units. . . .
Additionally, each Commercial Unit Owner shall have the right,
without the consent or approval of the Association, the Board of
Directors or other Unit Owners, to make alterations, additions, or
improvements, structural and non-structural, interior and exterior,
ordinary and extraordinary, in, to and upon any Commercial Unit
owned by it or them and Limited Common Elements appurtenant or
adjacent thereto . . . .

17.4   Alterations. Without limiting the generality of section 9.1 . .
. no Residential Unit Owner shall cause or allow improvements or
physical or structural changes to any Residential Unit, Limited
Common Elements appurtenant thereto, Common Elements or
Association Property. . . .

The foregoing shall specifically not apply to Owners of the
Commercial Units. Specifically, the Owner of any Commercial Unit is
expressly permitted (without requiring consent from the Association
or any Unit Owner or any other party, other than applicable
governmental authorities to the extent that prior approval from them
is required), to install on the exterior walls of such Owner’s
Commercial Unit and any Limited Common Element or Common
Element balconies, terraces, patios, lanais, decks, or other areas
appurtenant thereto such signage, mechanical equipment, furniture,
antennas, dishes, receiving, transmitting, monitoring, and/or other
equipment thereon as it may desire and may further make any
alterations or improvements, in the Commercial Unit Owner’s sole
discretion, to such Commercial Unit, Limited Common Elements or
Common Elements.




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   At trial, the Association did not dispute that the Owner, as a commercial unit
owner, has extraordinary rights to alter the units. However, the Association
claimed that the Owner did not have the right to alter the landscaping
appurtenant to the condominium units before obtaining written approval from
the Association’s board. The Owner maintained that the Declaration allowed
the Owner, as a commercial unit owner, to alter the landscaping without
obtaining written consent from the Association’s board.

   The trial court found that the landscaping was a Common Element of the
building. Additionally, the trial court found that section 9.1, when read in
conjunction with section 2.42, required both residential and commercial unit
owners to obtain written consent from the Association’s board before altering the
landscaping.

                                    Analysis

    A trial court’s interpretation of a declaration of condominium is subject to de
novo review. See Thomas v. Vision I Homeowner’s Ass’n, 981 So. 2d 1, 2 (Fla.
4th DCA 2007). “The constitution and by-laws of a voluntary association, when
subscribed or assented to by the members, becomes a contract between each
member and the association.” Id. (citation omitted). “Interpretation of a contract
is a question of law, and an appellate court may reach a construction contrary
to that of the trial court.” Id. (citation omitted).

   The principles governing contractual interpretation are well settled in Florida.
“Generally, the intentions of the parties to a contract govern its construction and
interpretation.” Id. “The intent of the parties by their use of such terms must
be discerned from within the ‘four corners of the document.’” Emerald Pointe
Property Owners’ Ass’n, Inc. v. Commercial Const. Indus., Inc., 978 So. 2d 873,
877 (Fla. 4th DCA 2008) (citation omitted). Furthermore, the language being
interpreted must be read in conjunction with the other provisions in the
contract. Royal Oak Landing Homeowners Ass’n v. Pelletier, 620 So. 2d 786, 788
(Fla. 4th DCA 1993). “Where contractual terms are clear and unambiguous, the
court is bound by the plain meaning of those terms.” Emerald Pointe, 978 So.
2d at 877.

    Upon our de novo review of the trial court’s interpretation of the Declaration,
we conclude that the trial court erred in finding that sections 2.42 and 9.1 of the
Declaration require commercial unit owners to obtain the Association’s board’s
written consent before altering a unit’s landscaping. We find that section 9.3’s
first sentence, “Anything to the contrary notwithstanding, the foregoing
restrictions of this section 9 shall not apply to Developer owned Units or
Commercial Units,” means section 9.1 does not apply to Commercial Unit
Owners. Put simply, section 9.3 supersedes section 9.1 and any other
restrictions set forth in section 9. Furthermore, we agree with the Owner that



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section 9.1’s requirement to obtain the Association’s board’s written approval
before altering the landscaping clearly applies only to “residential unit owners.”
The Association’s interpretation that sections 2.42 and section 9.1 require
commercial unit owners to obtain written authorization to alter landscaping is
not reasonable.

   The Association relied on the following emphasized language contained within
section 9.1:

      Without limiting the generality of this subsection 9.1, no Unit Owner
      shall cause or allow improvements or changes to his or her Unit, or to
      any Limited Common Elements, Common Elements or any property of
      the Condominium Association which does or could in any way affect,
      directly or indirectly, the structural, electrical, plumbing, Life Safety
      Systems, or mechanical systems, or any landscaping or drainage, of
      any portion of the Condominium Property without first obtaining the
      written consent of the Board of the Association. . . . The Board shall
      have the obligation to answer, in writing, any written request by a
      Residential Unit Owner for approval of such an addition, alteration,
      or improvement. . . .

However, the trial court erred in adopting the Association’s interpretation of this
language to the exclusion of, and consideration of, the remainder of section 9.1
and the pertinent Declaration provisions set forth in sections 9.3 and 17.4.
Notably, section 9.1 only requires the Association’s board to answer in writing
any written request made by a residential unit owner for approval of such an
addition, alteration or improvement.

   Lastly, even if we were to find that the Declaration’s provisions are in conflict
or are ambiguous, the “rule of adverse construction” provides that where a
contract is ambiguous, it will be interpreted against the drafter. “[T]he rule of
adverse construction is a ‘secondary rule of interpretation’ or a ‘rule of last
resort,’ which should not be utilized if the parties’ intent can otherwise be
conclusively determined.” Emerald Pointe, 978 So. 2d at 878 n.1 (citations
omitted). Here, the Association drafted the Declaration and, therefore, any
ambiguity would be interpreted against the Association. If the Association
wanted to prevent commercial unit owners from unilaterally altering the
landscaping appurtenant to their units, such a prohibition should have been
explicitly enumerated in the Declaration.

                                    Conclusion

   For the aforementioned reasons, the trial court erred in its finding that
commercial unit owners are required to obtain the Association’s board’s written
consent before altering landscaping appurtenant to their units. Thus, this Court



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reverses the final judgment and remands with directions for the trial court to
enter final judgment in favor of the Owner.

  Reversed and remanded for proceedings consistent with this opinion.

LEVINE and CONNER, JJ., concur.

                             *        *        *

  Not final until disposition of timely filed motion for rehearing.




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