Q: In 1998, the residents of my condominium voted for an amendment to our condo documents to prohibit unit rentals. The amendment with the appropriate certificate was signed by the association officers, notarized, and was recorded in the public records by the Sarasota County Clerk’s office.
For 15 years, everyone believed the rental ban was part of our docs. This idea is being challenged because the amendment, as submitted to the county, has the incorrect condominium name on it. The typist left out a key word, and, in fact, the name on the certificate of amendment is the exact name of a nearby condominium. So do we have a valid rental prohibition? So does the incorrect name matter? — A.O., Sarasota
A: I can’t give you a definitive answer about the validity of the rental amendment without more information. Assuming that the vote was conducted properly and that the restriction has been consistently enforced, I doubt that the error is a fatal one.
It sounds like a classic “scrivener’s” error, which is just a fancy legal way of saying “clerical mistake” or “oops, my secretary hit the wrong key.” The font of all knowledge, Wikipedia, tells me that the excuse of scrivener’s errors have been used historically to deflect blame from responsible parties. That gap in the Watergate tapes? The secretary did it.
Not that I see anything nefarious here. Many community names sound alike, even though counties have rules prohibiting the same name being used more than once. But certain names are seen as attractive from a marketing perspective, so they are used over and over with a slight spelling variation or some other distinction, such as a roman numeral if they are in the same community. My favorite: A developer built a community next to one called “Royal Arms” and named it “Royal Arms Extension.”
The first thing I would want to know is if the county properly indexed the amendment. By that, I mean does the amendment show up in the chain of title for everyone that has purchased in your condo over the past 15 years? Florida condos are quirky. Units are legally described by reference to where in the public records that the original declaration of condominium can be found (Sarasota County uses instrument numbers, other counties sometimes use a reference to an official records book and page). If the amendment referenced the correct declaration, even if the condo name was misspelled, I would guess that the amendment is valid.
In your case, there may be some legitimate grounds to challenge the amendment of which you are unaware. If the amendment was defective for more than just the one error, for example, this could be problematic.
If the association has not done so already, it needs to engage an attorney to get to the bottom of this. Florida has some corrective statutes that may help. It could also be necessary for seek a judicial determination as to the status of the amendment.
Tamela Eady is a Florida Bar board-certified real estate attorney. Email questions to tke@eadylaw.com.
