November 2003

What happens if your neighbor installs what looks like a flying saucer on his or her roof? Is it a giant eyesore? Guess what? You may not be able to do anything about it.

A recent opinion and order issued by the Federal Communications Commission, In the Matter of Wojcikewicz, DA 03-2971 addressed the issue of whether a homeowner could install an antenna on his roof in order to get good reception where his community restricted installation of antennas and satellite dishes. The Over-the-Air Reception Devices rule, 47 C.F.R. §1.4000 ("OTARD"), prohibits governmental and private restrictions that impair antenna users in their use, installation, and maintenance of antennae and satellite dishes.

The Commission explained that the Rule applies when an antenna is installed "on property within the exclusive use or control of an antenna user where the user has a direct or indirect ownership or leasehold interest in the property" upon which the antenna is located. The Rule clearly delineates that a restriction is prohibited if it (1) unreasonably delays or prevents installation, maintenance, or use; (2) unreasonably increases the cost of installation, maintenance, or use; or, (3) precludes reception of an acceptable quality signal.

The Commission looked to the language in the community’s Declaration to determine whether the homeowner had a property interest in his roof. The Commission ruled that the Association’s requirement for homeowners to obtain Association approval before installing an antenna was impermissible because the requirement constituted unreasonable delay.

This decision emphasizes the limits placed on homeowners associations regarding enforcement of restrictions dealing with antenna and satellite dishes. The Commission allowed an Association to state preferences for placement of antennae as long as those preferences do not meet the above stated three criteria that prohibit restrictions. Communities with restrictions may want to think about amending their Declarations to give the Association complete ownership interests in roofs. If the unit owner has no interest in the roof, then the OTARD rule does not apply to him or her.

Did you ever enter into a contract where you have not quite gotten what you thought you were getting? What about the saying: "almost does not count?" Apparently, almost does count if one party to a contract substantially complies with what it bargained to do.

A recent Florida appellate court decision pointed out that one party to a contract may be entitled to full payment even though it does not provide the other party with exactly what the contract provided. In Strategic Resources Group, Inc. v. Knight-Ridder, Inc., 28 Fla. L. Weekly D2119 (Fla. 3^rd DCA, September 10, 2003), the court ruled that where a party to a contract substantially performs its obligations under the contract, a claim for breach of contract could be defeated and the performing party would be entitled to the full contract price.

In 1992, The Miami Herald entered into an advertisement contract with a home developer agreeing to publish the developer’s advertisements and to bill the developer for the exact space used for publication. The contract allowed the newspaper to "revise, alter or reject any advertisement." The developer sued the newspaper claiming it was over-charged between 1994 and 1997 of over $80,000 because the images in the Miami Herald ads were 3.83% smaller than the agreed upon size.

The appellate court found that while the newspaper had intentionally reduced the size of the images, it had not intentionally breached the contract. The court pointed out that the reduction in the size of the advertisements was only noticeable if measured with a ruler! The court determined that the newspaper had substantially performed what was required by the contract. The developer "received the benefit of its bargain," that is, almost what it thought it would get.

To avoid similar problems, Associations may want to review their contracts to see if the contracts spell out exactly what it is that the Association thinks it getting.

FIRM NEWS: MOVING UP

The firm is pleased to announce it is moving up from the 10^th floor to the 12^th floor; from Okeechobee Boulevard to Palm Beach Lakes Boulevard. We anticipate our move to take place toward the end of November or in the beginning of December, depending on construction schedules. If you are in the area, then please stop by and see our new offices. In the meantime, please be patient with us while we are packing up files and papers for the move to our new home. Our new address will be: Regions Financial Tower, 1555 Palm Beach Lakes Blvd., Suite 1220, West Palm Beach, FL 33401. Telephone numbers will remain the same.

The firm’s office will be closing its office in observance of Veteran’s Day on Tuesday, November 11, 2003 and in observance of Thanksgiving on Thursday, November 27 and Friday, November 28, 2003.