Chmil v. Mediterranean Manors Ass'n

516 So. 2d 1109, 12 Fla. L. Weekly 2923, 1987 Fla. App. LEXIS 11638, 1987 WL 2885
CourtDistrict Court of Appeal of Florida
DecidedDecember 18, 1987
DocketNo. 86-3066
StatusPublished
Cited by2 cases

This text of 516 So. 2d 1109 (Chmil v. Mediterranean Manors Ass'n) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chmil v. Mediterranean Manors Ass'n, 516 So. 2d 1109, 12 Fla. L. Weekly 2923, 1987 Fla. App. LEXIS 11638, 1987 WL 2885 (Fla. Ct. App. 1987).

Opinion

LEHAN, Acting Chief Judge.

Plaintiffs, the owners of units in one condominium within a project containing eleven condominiums, appeal from a partial summary judgment entered in favor of defendant condominium association. The partial summary judgment was entered as to count IV of the complaint which asked for a declaration of rights as to the manner of assessments by the association for common expenses. In count IV plaintiffs contended that assessments for the expenses of repairs to plaintiffs’ condominium units should be apportioned among all unit owners of all condominiums within the project, rather than being paid only by the owners of units in plaintiffs’ condominium. The trial court disagreed and ruled that the assessments should be against only the units in plaintiffs’ condominium. Notwithstanding the persuasive arguments made on behalf of plaintiffs, we affirm.

Article IX.D of the declaration for plaintiffs’ condominium provides:

Each Apartment owner shall be liable for a proportionate share of the common expenses of the Association, such share being the same as the undivided share in the common elements, which is appurtenant to his Apartment.

Article VI of the declaration provides:

The Condominium ... may be one of a series of several Condominium Apartment Buildings, which may be constructed under a common plan.... Each building ... shall constitute a separate Condominium Property, but all of the Condominiums in this development shall be operated and governed by the same Association....

As explained below, we construe the term in article IX.D, “common expenses of the Association” to mean the common expenses of, and payable to the association for, the particular condominium in which the unit paying the expenses is located.

Since, as provided in article VI, the association is to serve as the condominium association for alb eleven condominiums within the common plan and since the association is responsible for repairs to the common elements in the condominium, plaintiffs urge that article IX.D of the declaration should be construed so that the term “common expenses of the Association” for which each unit owner is liable means that a unit owner is liable for a share of the common expenses of all condominiums within the common plan of the condominium project. That construction was followed by the parties in this case for approximately twelve years from the inception of the condominiums until July 1,1986. At that time, as called for by the Florida Department of Business Regulation, Division of Land Sales and Condominiums, the association began assessing each unit owner only for the common expenses of the [1111]*1111particular condominium in which that unit is located.

We agree with the plaintiffs that the course of conduct of parties to a contract may be used to resolve an ambiguity in the contract. They contend that the course of conduct of the parties to the condominium declaration involved in this case requires the foregoing construction of the declaration which they urge. For the reasons explained below we do not agree.

We do not conclude that article IX.D of the declaration should be found to be ambiguous. The wording of that article following the comma clearly states that each unit owner is liable for a share of the common expenses equal to his share in the common elements appurtenant to his unit. Common elements are defined by article V.D. as being “portions of the Condominium property not included in the apartments,” and article V.G. defines “condominium property” only as land and improvements, etc. “in the Condominium....” It is therefore apparent that each apartment, i.e., unit, owner owns a share of common elements only in the condominium in which his unit is located and does not own a share of the common elements in any of the other ten condominiums within the project. Thus, each unit owner’s share of the common expenses is equal to his share of the common elements in the condominium in which his unit is located.

As we have said, plaintiffs argue that Article IX.D means that the share of the common expenses for which each unit owner is liable should be a share of the total common expenses of the entire condominium project. Using their construction of that article, each unit owner would pay a share of the total common expenses of the entire project which is equal to his share of the common elements in his condominium. But then, since the total of the shares of unit owners of one condominium in the common elements of that condominium will equal 100 percent, the expenses paid by each of the eleven condominiums would equal 100 percent of the total expenses of the project. To illustrate using a simplified example to show the apparent result of plaintiffs’ construction, if there were ten units in each of the eleven condominiums, then each unit owner would pay for a one-tenth share of the total common expenses for the entire project, which would result in 110 one-tenth shares being paid or, in other words, 1100 percent of the total common expenses being paid. This result would obviously not be rational.

On the other hand, by construing article IX.D, as did the trial court, to require an owner to pay only a share of the common expenses of the condominium in which his unit is located and not a share of the expenses of the entire project, the proportionate shares referred to in article IX.D are rational because then the shares paid by the unit owners in each condominium which equal 100 percent will be the only shares paying the expenses referred to in that article.

Such an interpretation is also consistent with section 718.115(2), Florida Statutes (1985), which provides that in a residential condominium such as the one in this case “unit owners’ shares of common expenses shall be in the same proportions as their ownership interest in the common elements.” Thus, section 718.115(2) expresses an intent which is consistent with that which we have explained is expressed in article IX.D of the declaration.

Different portions of the wording of a contract should be construed, if rationally possible, to be consistent with each other. See Excelsior Insurance Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 941 (Fla.1979). The words of Article IX.D which precede the comma in that article must, in order to be consistent with our foregoing construction of the words which follow the comma, be construed in the manner we have stated earlier in this opinion. That is, those words preceding the comma must be construed to refer to the common expenses payable to the association for the particular condominium in which the unit paying the expenses is located.

For the reasons we have given, the construction of the declaration urged by plain[1112]*1112tiffs would not appear to yield a rational result. In addition, that one association is to operate the entire project does not necessarily mean that each unit owner is to be responsible for a share of the total common expenses of the project. Section 718.-111(12) (a) (11), Florida Statutes (1985), provides for a condominium association to maintain “separate accounting records for each condominium which the association operates_” It is possible for one association to operate an entire multiple condominium project as contemplated by article VI and be consistent with section 718.-111(12) (a) (11) by keeping separate the financial matters of each individual condominium within the project.

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Bluebook (online)
516 So. 2d 1109, 12 Fla. L. Weekly 2923, 1987 Fla. App. LEXIS 11638, 1987 WL 2885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chmil-v-mediterranean-manors-assn-fladistctapp-1987.