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LLC v. Waverly at Las Olas Condominium Association, Inc.

Florida Court of Appeals, Fourth District

March 21, 2018

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.

          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.

          ON MOTION FOR REHEARING

          SMALL, LISA, ASSOCIATE JUDGE.

         We deny appellee's motion for rehearing en banc; however, we withdraw our previously issued opinion and substitute the following opinion.

         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 ...

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