DOUGLAS DUVALL, GAIL DUVALL, LEONARD CLARK, HOWARD CLARK, JOYCE v. FAIR LANE
ACRES, INC, No. 2D09-5089 (Fla.App. 12/01/2010)
||IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
||Case No. 2D09-5089
||December 1, 2010
||DOUGLAS DUVALL, GAIL DUVALL, LEONARD CLARK, HOWARD CLARK, JOYCE
CLARK, AND WALTER ASHERBRANER, APPELLANTS,
FAIR LANE ACRES, INC., APPELLEE.
||Appeal from the Circuit Court for Manatee County; Janette Dunnigan,
||David P. Montgomery of The Montgomery Law Firm, Bradenton, for
Appellants. J. Allen Bobo and Jody B. Gabel of Lutz, Bobo, Telfair,
Eastman, Gabel & Lee, Sarasota, for Appellee.
||The opinion of the court was delivered by: Davis, Judge.
||NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED,
||Douglas Duvall, Gail Duvall, Leonard Clark, Howard Clark, Joyce Clark,
and Walter Asherbraner (the Homeowners) challenge the trial court's
final declaratory judgment entered in favor of Fair Lane Acres, Inc.
Because the judgment constituted an unlawful taking of property rights,
||Fair Lane Acres (the Community) is a mobile home subdivision
originally consisting of five platted sections totaling approximately
704 lots. The plats for the Community were recorded beginning in 1956.
Original deed restrictions also were recorded at that time, but by the
face of the restrictions, they expired in 1979. By the terms of those
1956 restrictions, the property owners were provided a package of
services that included the use of the Community's recreational
facilities (recreation hall, pool, and shuffleboard courts) and street
lighting, as well as water and sewer services, which were provided
through the Community's internal water distribution lines, sewer
collection lines, and lift station. The costs of providing these
services were paid by the Community's residents through annual
assessments to entities created by the developer, i.e., Fair Lane
Utilities, Inc., and Fair Lane Water Company. The original plans did not
call for the creation of a homeowners association for providing these
||Subsequently, Manatee County agreed to provide the residents of the
Community with water and sewer services utilizing the systems already
established as part of the Community's infrastructure. In 1996, a
majority of the Community's residents established the homeowners
association Fair Lane Acres, Inc. (the Association); however, the
Homeowners opted not to join the Association. The Association then
purchased the Community's common areas and infrastructure facilities
from Fair Lane Utilities and Fair Lane Water Company. Since that time,
the Association has continuously provided water and sewer services to
the Homeowners. However, unlike the Association's members, the
Homeowners have paid for only the water and sewer services and have not
contributed to the costs of maintaining the infrastructure or the common
||Due to the passage of a Manatee County ordinance, the rates charged by
the Association for water and sewer services, including the contribution
to the cost of maintaining the systems, are now regulated by the Florida
Public Service Commission (FPSC). FPSC allows entities such as the
Association exemptions from regulatory requirements if they sell the
services to only homeowner association members. By the terms of the
Association's Articles of Incorporation, all the residents of the
Community, including the Homeowners, are technically "members"
of the Association. The Association thus applied for and was granted the
FPSC exemption in 1997.
||In April 2000, the Association requested that the residents of the
Community consent to submit their properties to the provisions of a
recorded Declaration of Covenant and Restrictions by which the Community
was designated as "housing for older persons" as defined by
federal law. The Declaration specifically states that at least one
person residing on each parcel must be older than fifty-five years of
age and that all persons living there must be at least forty-five years
of age. Based on the Declaration, the Association's Articles of
Incorporation were amended to reflect that the purpose of the
Association was to provide housing for older persons. The Association
also amended its Bylaws to provide that "[n]o sale, conveyance, or
lease of a lot, and/or the dwelling unit thereon, shall be binding on
the [Association] until the Board [of Directors] renders its written
approval." The Bylaws also provide that the Board of Directors will
have the authority to establish the fee to be assessed for maintenance
of the common areas, including the water and sewer systems.
||A majority of the Community's residents consented to submitting their
properties to the provisions of the Declaration; the Homeowners,
however, did not. Similarly, the Homeowners refused to comply with the
Association's requirement that they execute an Agreement for Water and
Sewer Utility Services, which would obligate the Homeowners to
"comply with all governmental regulations and the Corporation's
Articles of Incorporation, Bylaws, and Rules and Regulations as
promulgated by the Board of Directors."
||The Association then brought a declaratory action against the
Homeowners, seeking a determination that it was not required to unbundle
the services it provided in order to offer the Homeowners only water and
sewer services but not other common area services*fn1
and that it could require the Homeowners to execute the Agreement,
subjecting them to the Association's Articles of Incorporation and
Bylaws. The trial court entered its final judgment, declaring that if
the Homeowners "desire to utilize the services available from [the
Association], they must contract to do so" and that "the
contract terms . . . may include a provision indicating that [the
Homeowners] are subject to the Articles of Incorporation and
By-laws." The trial court also determined that the Homeowners
"may not arbitrarily choose which services and facilities to which
they will subscribe." Finally, the trial court came to the specific
conclusion that "[t]he arguments raised by [the Homeowners] that
their property rights outweigh the [trial court's] above findings are
not well founded" because "the restriction of occupancy to
persons fifty-five . . . years of age or older is a restriction of
occupancy, not a restriction on property rights." And in any event,
according to the trial court, since the Homeowners have not consented to
the terms of the Declaration of Covenants and Restrictions, its age
limitation provision would not apply to them. It is this final judgment
from which the Homeowners now appeal.
||We agree with the Homeowners that the trial court erred in requiring
them to execute the Agreement in order to continue receiving water and
sewer services from the Association. The Agreement specifically requires
them to submit to the applicability of the Association's Articles of
Incorporation and Bylaws, both of which implement the conversion of the
Community to "housing for older persons" by placing age
limitations on the residents and requiring Association approval prior to
any sale of the Homeowners' real property.
||The most valuable aspect of the ownership of property is the right to
use it. Any infringement on the owner's full and free use of privately
owned property, whether the result of physical limitations or
governmentally enacted restrictions, is a direct limitation on, and
diminution of, the value of the property and the value of its ownership
and accordingly triggers constitutional protections.
||Snyder v. Bd. of Cnty. Comm'rs, 595 So. 2d 65, 70 (Fla. 5th DCA 1991),
quashed on other grounds, 627 So. 2d 469 (Fla. 1993). As such, the trial
court erred in concluding that the age restriction was a restriction on
occupancy and not a restriction on "property rights."
||To impose a limitation on who can use and enjoy property is a direct
restriction on the Homeowners' ownership rights in their properties. See
Black's Law Dictionary 1215 (9th ed. 2009) (defining
"ownership" as "[t]he bundle of rights allowing one to
use, manage, and enjoy property, including the right to convey it to
others"). Similarly, to restrict the ability to transfer property
by imposing an obligation to seek the approval of the Association is an
improper infringement on the Homeowners' property rights. These property
rights are constitutionally protected, and the trial court erred in
ordering the Homeowners to sign the Agreement by which they would be
required to surrender these rights. See Dep't of Law Enforcement v. Real
Prop., 588 So. 2d 957, 964 (Fla. 1991) ("Property rights are among
the basic substantive rights expressly protected by the Florida
Constitution. Art. I, § 2, Fla. Const.").
||Accordingly, we reverse the trial court's order and remand for further
proceedings consistent with this opinion.
||Reversed and remanded.
||KHOUZAM and MORRIS, JJ., Concur.
||*fn1 Although Manatee County does
provide water and sewer services directly to several properties located
on the peripheral lots of the Community, it will not agree to provide
the Homeowners with water and sewer services unless the Association
consents, and the Association has refused to do so.