Words Matter – And So Apparently Does Grammar

Consider the recent case of Daniel W. Davis and Melinda M. Davis v. Verandah at Lake Grady Homeowners Association, Inc., et al., Case No. 2D21-1387 (Fla. 2nd DCA January 13, 2023), in which the Davises argued that the words “of record” in the clause “subject to covenants, restrictions, easements of record and taxes for the current year,” modified not only “easements” but also “covenants, restrictions.” The court disagreed basing its opinion on syntax – that is, positing that the Davises’ attempt to apply a syntactic canon known as the series qualifier canon failed because “of record” does not appear at the beginning or the end of the list. The court concluded that the language of the deed is clear. Is it clear? There are several ways to have phrased it differently that would have clarified that “of record” either does or does not apply to covenants and restrictions. For example, “subject to covenants, restrictions, and to easements of record and taxes for the current year” (clearer that “of record” applies only to easements) or “subject to covenants, restrictions, and easements of record and to taxes for the current year” (clearer that “of record” applies to covenants and restrictions as well as to easements). Most real estate attorneys will tell you that in real life, the intent is for “of record” to apply to covenants and restrictions as well as to easements. It would be the exceptional circumstance in which the intent would be otherwise. With that, is it appropriate for a single grammatical canon to inform the interpretation of a disputed phrase? Should a syntactic canon govern over common practice? What say you?