WAVERLY 1 AND 2, LLC, a Florida limited liability company, Appellant,
WAVERLY AT LAS OLAS CONDOMINIUM ASSOCIATION, INC., a Florida corporation, not-for-profit, Appellee.
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).
D. Eaton of Podhurst Orseck, P.A., Miami, for appellant.
Gursky and Carolina Sznajderman Sheir of Gursky Ragan, P.A.,
Miami, for appellee.
ON MOTION FOR REHEARING
LISA, ASSOCIATE JUDGE.
appellee's motion for rehearing en banc; however, we
withdraw our previously issued opinion and substitute the
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.
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
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.
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.
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
. . . .
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 ...