May 2003

COVENANTS: A ROSE BY ANY OTHER NAME ... IS STILL A TRUCK

What happens when a homeowner parks an ugly, beat-up work truck in his or her driveway? An association may think it can ban all commercial trucks from being parked in driveways. Think again. Banning "commercial" trucks may not be as simple as you think.

A recent Florida decision points out how important it is for an association’s restrictions to accurately state what is prohibited. In Wilson v. Rex Quality Corporation, 28 Fla. L. Weekly D828 (Fla. 2^nd DCA, March 26, 2003), the court ruled that the Crown Pointe Subdivision’s Declaration of Restrictions did not prohibit all commercial vehicles from being parked in the owners’ driveways. The Association sued two homeowners alleging that the owners violated the Declaration by parking their company vehicles in their driveways.

There were two vehicles. One was a Chevy Astro Van which had "ENJOY COCA COLA" painted in red in several places. The other was a Chevrolet S10 pickup truck with the words "Precision Termite and Pest Control" and "679-BUGS." The Association asserted that the following Declaration provisions required the trucks’ removal:

1. All lots shall be used only for single family residential purposes, and use of said lots shall be restricted and limited to conventionally constructed residential dwellings. ...

8. No sign of any kind shall be displayed to the public view on any lot, except one professional sign of not more than one (1) square foot ....

14. No noisy automobiles, trucks, motorcycles, dirt bikes or other similar type vehicles shall be permitted, and no commercial trucks (except small pickup trucks) shall be permitted.

The trial court held that if a sign is on a vehicle which is on a lot, then the sign is a violation of the restrictions. The appellate court disagreed.

The appellate court strictly construed the Declaration provisions. First, paragraph 8 related to signs on an owner’s lot, not to signs on vehicles parked on the lot. The court pointed out that a contrary interpretation would exclude the temporary parking of repair vehicles and law enforcement vehicles in driveways. The court also concluded that paragraph 14 did not prohibit all commercial vehicles, stating "[t]he plain meaning of the words reflects an intent to permit certain commercial vehicles." Interestingly, and of concern, is that paragraph 1, the family residential restrictions, did not prohibit the commercial trucks.

This decision emphasizes the importance of carefully wording the Declaration of Restrictions to accurate reflect the intent of the owners. Like the Wilson decision, a court will likely look at the "ordinary and obvious meaning" of the words used in the restrictions. If an Association wants to ban certain vehicles, make sure the documents specifically spell out what it is you want to ban. The Restrictions should also take into account any exceptions to the rules.

LIENS: FACSIMILE SAVES A FORECLOSURE ACTION

What happens if work ceases on a construction site and 91 days later the contractor files a construction lien? It may not be too late to foreclose the lien, even though it appears that the time limits have been exceeded.

A recent appellate court decision defined what constitutes the "final furnishing" of services in order to find that a construction lien was timely filed. In Michnal v. Palm Coast Development, Inc., 28 Fla. L. Weekly D688 (Fla. 4^th DCA, March 12, 2003), Robert Michnal hired Palm Coast to build his "dream home" for $2,075,000; however, a dispute arose over what type of truss system was required. The contract included a wood floor truss system, not a more costly truss system as provided in the blueprints.

Palm Coast halted construction after the parties began disputing over which truss system to use. The last date physical construction occurred was July 16, 1997. On July 21, 1997, Palm Coast faxed Michnal a letter outlining the cost breakdown for the more costly system. Michnal terminated the contract on July 22, 1997. Palm Coast filed a construction lien on October 17, 1997.

Palm Coast sued Michnal for breach of contract and to foreclose its construction lien. The jury found that Michnal had breached the contract by wrongfully terminating Palm Coast. In a separate proceeding before a judge, Michnal argued that the lien was not enforceable because it was untimely filed. The trial court disagreed, finding that the lien was enforceable.

The Florida appellate court ruled that the construction lien was timely filed. The court explained that §713.08(5), Fla. Stat. (1997) provides that a construction lien must be filed within 90 days of "final furnishing" of labor, services, or materials. The court concluded that the July 21 facsimile constituted the "furnishing" of a "service."

The lesson from this situation is to pay attention to filing deadlines. Liens should be promptly filed in order to avoid the "untimely" defense. Beware of late efforts that may be defined as "work."

LEGISLATIVE UPDATE: STAY TUNED

At press time, the legislative session was reported to be near a "train wreck." It is too soon to speculate about what bills will be enacted as laws which impact community associations. Stay tuned; we expect to have a legislative update next month.

FIRM NEWS

The firm’s office will be closed Monday, May 26, 2003 in observance of Memorial Day. Happy Holiday!

This information is provided for public information purposes only and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general notice of recent legal changes. This information is not to be considered as legal advice. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected.

© 2003 by Gelfand & Arpe, P.A.