Bendo v. Silver Woods Community Association, Inc., ___ So. 3d ___, 40 Fla. L. Weekly D358 (Fla. 5th DCA February 6, 2015)
The association approved the homeowner’s proposed hardscape changes to his front yard but disapproved his proposed softscape changes because they did not include a grass lawn. Based upon its interpretation of a restrictive covenant, the trial court ruled that approval was necessary, but the appellate court, on de novo review, reversed. “Covenants that run with the land, such as the one at issue here, ‘must be strictly construed in favor of free and unrestricted use of real property.’ . . . Accordingly, an ambiguous covenant must be construed in favor of the landowner.” The covenant in this case provided, “No building, fence, wall or other structure shall be commenced, erected or maintained upon the Property, nor shall any exterior addition to or change or alteration therein be made . . . until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association or by the Architectural Review Committee (ARC).” The association argued that the word “therein” modified the word “Property,” but the homeowner argued that the word “therein” modified “building, fence, wall, or other structure,” and approval of the board or ARC was unnecessary in this case. The appellate court agreed with the homeowner, concluding that his construction “comport[ed] with logic and reason.” At the very least, the homeowner’s construction was a reasonable interpretation of the covenant. Therefore, even if the homeowner’s construction was incorrect, the covenant was ambiguous and unenforceable.
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