Whether obtaining a governmental developmental order and talking about proceedings triggers an association’s alteration approval process was at issue in Holiday Isles Improvement Ass’n, Inc. v. Destin Parcel 160, Case No. 1D17-2090, August 30, 2018).
Apparently, the Association was entitled to enforce covenants requiring building plans to be approved for work “commenced, erected or maintained.” Destin Parcel 160’s predecessor in title had “produced some construction plans and obtained a development order.”, and Destin Parcel “talked publicly about proceeding.” Destin Parcel’s refused to submit plans to the Association, at least in part asserting that plans were not finalized and no building permits had issued.
When Destin Parcel refused to provide plans in response to the Association’s demand, the Association sought declaratory and injunctive relief. The trail court granted Destin Parcel a summary judgment.
The appellate court held that the Association’s demand to review the plans was “premature.” When the trigger for obtaining approval is couched in terms of “commenced, erected or maintained”, it is unreasonable to interpret that language to require submission of plans that are either incomplete, non-final, or when the owner has not made a final decision to proceed.
Short and sweet, the decision may give pause to drafters of restrictions. Thresholds for action are desired to clearly set forth the threshold for submission. For example, seeking an alteration approval upon erection or maintaining would appear to be somewhat late, the key being approval before any work commences.
Michael J. Gelfand
Real Property, Probate and Trust Law Section
of The Florida Bar
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© 2018 Michael J. Gelfand
Michael J. Gelfand
Florida Bar Board Certified:
Real Estate Attorney
Condominium & Planned Development Law
Florida Supreme Court Certified Mediator:
Civil Circuit Court & Civil County Court
Fellow, American College of Real Estate Attorneys
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