SALTER, J.
A condominium developer, First Equitable, appeals one aspect of a declaratory judgment
The dispute between the parties involves a portion of the amended declaration of condominium dealing with certain "commercial units." At the discretion of First Equitable, these units could be (1) developed into retail or other commercial uses and "transferred, conveyed, leased or disposed of without the consent of the Association," (2) converted into "limited common element parking area," or (3) conveyed to the Association, in which event the Association "shall be obliged to accept same."
Shortly before turnover of control of the Association to the unit owners, First Equitable executed a warranty deed, later recorded, conveying three of the commercial units to the Association. When the deed was signed and recorded, those commercial units had not been developed or converted into parking spaces. The deed identified the commercial units by number, "according to the Declaration of Condominium thereof as recorded in [Official Records Book and Page]."
When the three commercial units were conveyed, First Equitable reimbursed itself approximately $38,000 in prior maintenance payments attributable to the units. First Equitable asserted, however, that it retained a contingent right under the 2007 amendment to the declaration to be assigned any parking spaces "within the boundaries of the commercial spaces" in
The Association denied that any such right was retained by First Equitable and filed a declaratory judgment action to resolve that question (among others). The trial court found that the fee simple deed transferred all of First Equitable's rights in the three commercial units to the Association, including any contingent rights to parking spaces created within the boundaries of those units. This appeal followed.
We review the trial court's interpretation of the declaration of condominium and the deed de novo. Thomas v. Vision I Homeowners Ass'n, 981 So.2d 1, 2 (Fla. 4th DCA 2007). The trial court's conclusion was correct for two independently sufficient reasons.
First, the right retained by First Equitable as developer in the amendment to Article XXV was a contingent right that had not been exercised at the time the commercial units were conveyed. Under the amendment, First Equitable's right to be assigned parking spaces within the boundaries of the units would have arisen only "in the event" First Equitable had already converted unbuilt commercial spaces into limited common element parking area. That event and conversion had not occurred at the time First Equitable conveyed all its rights in the units to the Association. The language suggests a choice by First Equitable itself ("in the event the developer chooses") rather than a later choice to convert the unbuilt spaces by the developer's grantee. The reservation of a future right to be assigned parking spaces after the developer's conveyance of the commercial units might have been memorialized by the use of appropriate language to that effect in the amendment and deed, but that was not done in either document.
Second, the language in the warranty deed warranted that the conveyance to the Association was in fee simple, inclusive of all rights appurtenant to the three units, and "free of all encumbrances except those accruing subsequent to December 31, 2007." Even if the amendment to the declaration is read to reserve a future right to parking spaces upon the contingent conversion of the units into parking area (though, as noted above, that argument fails), the amendment itself is a purported encumbrance accruing before December 31, 2007. The amendment was adopted and recorded before that date. The deed expressly disclaims, therefore, the existence or effectiveness of any such retained right.
For these reasons, the declaratory order appealed by First Equitable is affirmed.