Dunes South Homeowners Association Inc. v. First Flight Builders, Inc.

First Flight Builders, Inc. (the developer) (defendant), the original developer of the Dunes South condominium, owned several units in the development, some of which the developer previously conveyed and later reacquired. The original declaration provided that the developer and the other unit owners would pay an annual per-unit maintenance assessment to the Dunes South Homeowners Association (the association) (plaintiff). Pursuant to additional terms in the declaration, the developer filed an amended declaration exempting it from its obligation for the annual maintenance assessment on remaining unsold units but requiring the developer to pay any operating expenses that exceeded the per-unit assessments collected from other unit owners. The association sued the developer for unpaid maintenance assessments levied on the developer’s units. The trial court granted summary judgment for the association. The court of appeals reversed after finding that the term remaining unsold in the amended declaration was ambiguous and presented a jury question, rendering the matter inappropriate for summary judgment. The association appealed, arguing that under the state condominium act, the developer, as a unit owner, was obliged to pay its pro rata share of the common-area maintenance expenses and that because the amended declaration violated the act, it was ineffective.