Issue Created by Language Used in Deed Restrictions

Posted on: September 17, 2013

Heleski v. Harrell, 2D12-4136 (Fla. 2d DCA 2013):

The Heleskis began building a structure on their property without notifying or getting approval from the HOA. The structure is 24 feet by 24 feet and is separate from the Heleskis’ main house. The Heleskis’ neighbors complained to the HOA that the structure was in violation of the neighborhood’s deed restrictions. When the HOA approved the project, the neighbors filed an action in circuit court to prohibit the construction. Summary judgment was granted in favor of the neighbors, finding that the Heleskis were prohibited from building the structure.

The issue in this case centers on the language used in section 3 and section 9 of the deed restrictions. The trial court determined that the Heleskis’ structure was a garage governed by section 3 because the Heleskis repeatedly referred to it as a “garage” in their building application and communications with the HOA. As to section 9, the court stated that “there is simply no way a garage may fit within the definition of ‘outbuilding’ as that term is used in § 9.” However, the fact that the Heleskis referred to the structure as a “garage” does not conclusively establish that it is actually a “garage.”

Although the parties suggest that due to its placement on the property the structure could not be used for parking vehicles, the record is unclear as to how the structure was intended to be used. As the question of whether the structure is a “garage” covered by section 3 or one of the “utility buildings” covered by section 9 turns on the intended function of the structure, a material issue of fact remains. The Second District reversed the trial court’s order granting summary judgment and remand for proceedings consistent with their opinion.