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April 1, 1995 MEMORANDUM TO CLIENTS
"WHAT IS IN A NAME?" How does a Court determine what the drafter of a declaration meant? Quoting Shakespeare, Appeals Associate Judge May tried to do so in Heck v. Parkview Place Homeowners Association, Inc., 19 FLW D2140 October 5, 1994. The reference to Hamlet's question was the Florida Court of Appeals for the Fourth District's first response. Though perhaps not a valid parallel to the troubles plaguing Hamlet, the issue in Heck is one that seemingly repeats itself in South Florida: whether a declaration of restrictions prohibits an alteration visible from a home's exterior. Just as classical literature continues to teach us, the Heck dispute's history and the manner it was resolved provides associations a warning and guidance. The Hecks, owners of a home at Parkview Place, installed a trellis in front of a window without receiving the Homeowners Association's prior written approval. When the trellis was not removed, the Association sued the Hecks in Palm Beach County Circuit Court seeking a determination that the Parkview Place Declaration of Restrictions prohibited the unapproved alteration. Circuit Judge Stewart after a trial interpreted what he believed to be ambiguous language in the Declaration. Judge Stewart ruled that the Declaration's drafters intended to prohibit items that acted as a window shade or guard, even though a trellis was not prohibited by name. The Hecks appealed. The appellate court focused upon the Declaration's specific language. This focus accounts for Judge Mays quotation from Shakespeare and her concentrating upon specific names. The Declaration regulated not types of items, but specifically named items "No shades, awnings, window guards, mirror tint window materials, fans or air conditioning devices." The Declaration did not regulate trellises. The appellate court applied a simple interpretive test to the situation. When the Declaration is clear and unambiguous, the language will be followed. The courts will use whenever possible the meaning that is "most commonly understood in relation to the subject matter and circumstances". Applying the "plain, ordinary meaning" test to the Hecks' situation the appellate court found the Association's case lacking. Judge May noted that though the Declaration regulated certain specifically named items, trellises were not specifically named. Because a trellis was not named, the appellate court ruled in favor of the Hecks, pointedly and graphically refusing to "s-t-r-e-t-c-h the terms employed by the Declaration to the facts of this case." The message behind the decision is that an association's documents should be clear. Whenever possible, the courts will apply the plain ordinary meaning to a declaration's provisions. Only if there is an ambiguity will the courts seek to interpret what a document "really means." If language is ambiguous, then by definition the ambiguous language can possibly be construed to mean more than one concept. Associations should be wary when attempting to enforce an ambiguous provision because of the risk of an adverse interpretation. This message has a clear application for associations. Whenever possible declaration, bylaw, and articles of incorporation amendments should be drafted clearly and concisely. Clear drafting may require additional language than an ambiguous provision; however, clarity will assist when attempting to enforce the amendment which is an association's goal when amending a document. Also, when a provision is ambiguous, then an association should consider whether it is appropriate to amend the provision. RESOURCE DIRECTORY FOR NOT-FOR-PROFIT ORGANIZATIONS: A TOOL
The firm seeks to identify efficient solutions to clients' problems. To assist in this effort, the firm compiled a "Resource Directory For Not-for-Profit Organizations." The Resource Directory contains information which may be helpful to not-for-profit corporations, including condominium and homeowner associations. Supplementing the Resource Directory, the firm's library contains many of the resources listed in the Directory. The Resource Directory assists organizations' efforts to identify how other groups may have resolved organizational problems. The items the Resource Directory lists includes publications summarizing diverse organizations' efforts to solve common complaints and problems. The issues these publications address includes: general management, general leadership, financial management, human resource development, information systems, legal concerns, marketing, operational considerations, planning, fund raising and resource development. The firm is making the Resource Directory available to clients for review in either of the firm's locations. If you are interested in reviewing the Resource Directory, or the Directory's supporting materials, then please contact Ms. Donna Simmons at the firm's West Palm Beach office. ANNUAL MEETINGS AND MINUTES
As a reminder, all corporations are required by the Florida Not-for-Profit Corporations Act, or the Florida Corporations Act to hold an annual members or shareholders meeting. The meeting should be held no more than thirteen months after the last meeting. Minutes must be prepared for the meeting, and the minutes must be properly kept. If you have not held or have not scheduled an annual meeting, then you may desire to contact your corporate counsel. SOUTH PALM BEACH AND BROWARD COUNTY TELEPHONE NUMBER CHANGE
Please reminder, clients calling the firm from areas in Delray Beach and south through Fort Lauderdale, should use the firm's new toll free number: 1-800-355-6224. The number is operative now. The old number will also be available through April 15, 1995. For clients in West Palm Beach and all other areas, the firm's telephone number remains 407-655-6224.
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