Case No. 89-2202 557 So. 2d 243, 15 Fla. Law W. D 631 BLUE BOOK CITATION FORM: 1990.FL.539 Date Filed: March 7, 1990
Appeal of a non-final order from the Circuit
Court for St. Lucie County; Rupert J. Smith, Judge.
APPELLATE PANEL: Letts, Dell and Garrett,
We grant the petition for rehearing, withdraw
the opinion filed on January 10, 1990, and substitute the following: A
trial court order determined class representation and certified the class
in an action by certain homeowners against a homeowners' association. We
hold that such an order is not reviewable and dismiss this portion of the
Accordingly, this portion of the appeal
The enforcement of the Amended and Restated
Protective Covenants and Restrictions dated December 1, 1983, and Second
Amended and Restated Protective Covenants and Restrictions dated December
20, 1987, unless and until restrained and enjoined by an order of this
court, will cause immediate and irrepairable (sic) injury; and that the
plaintiffs remedy at law is inadequate for the reasons hereinabove described,
and further because there (sic) solution of the validity of the amended
protective covenants and restrictions, the second amended protective covenants
and restrictions and the bylaws of HOLIDAY PINES PROPERTY OWNERS ASSOCIATION,!
INC., on an individual lot owner basis would lead to a multiplicity of
Case No. 87-1195 533 So. 2d 819, 13 Fla.
Law W. 2310 BLUE BOOK CITATION FORM: 1988.FL.2243
Appeal from the Circuit Court for Broward
County; W. Herbert Moriarty, Judge.
As we have already said, this is not a
condominium development, yet a close parallel can be found under section
718.110(4), Florida Statutes (1987), which provides as follows:
The language of the original declaration
sub judice was akin to subdivision restrictions which normally cannot be
amended without the consent of all the property owners. Harwick v. Indian
Creek Country Club, 142 So.2d 128 (Fla. 3d DCA 1962). "That residential
lot owners are the beneficiaries of restrictive covenants is well settled."
Gercas v. Davis, 188 So.2d 9, 11 (Fla. 2d DCA 1966); Moore v. Dykes, 225
So.2d 455 (Fla. 1st DCA 1969); also see Downey v. Jungle Den Villas Recreation
Association, 525 So.2d 438 (Fla. 5th DCA 1988).
1992.FL.47757; 604 So. 2d 523; 17 Fla. Law W. D 1722 ; filed: July 17, 1992.
SOUTHEAST SEMINOLE CIVIC ASSOCIATION, INC.,
Appeal from the Circuit Court for Seminole County, Robert B. McGregor, Judge.
Harold L. Downing and Tracy L. Duda of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., Orlando, for Appellant.
Phillip H. Logan, Sanford, for Appellee, W.A. Adkins.
Todd Pittenger of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellees, John F. Gill and Nancy L. Gill.
Cowart, Dauksch, Peterson
The owners of a large tract of land subdivided it into home site lots with roadways for ingress and egress. The plat of the subdivision, known as Chula Vista, was not recorded and the deeds to the lots used metes and bounds descriptions.
In 1978, a corporate successor in title to the lands constituting the roadways in the subdivision executed a document (recorded in 1982), granting, giving, and dedicating for the benefit of the general public and of the real property known as the unrecorded plat of Chula Vista, a non-exclusive easement and right of way, on and over, all existing non-dedicated roads belonging to the grantor. In 1986 the corporate titleholder was voluntarily dissolved. Later in 1986, the surviving directors of the dissolved corporation executed a document again dedicating, releasing and conveying all existing roads to and for the benefit of all real property known as the unrecorded plat of Chula Vista.
Later a group of some of the owners of lots in Chula Vista formed the non-profit corporation Southeast Seminole Civic Association, Inc., (appellant), which uses the fictitious name "Chula Vista Homeowners Association". In 1987, the incorporated Homeowners Association obtained a quit claim deed from the surviving directors and trustees of the dissolved corporate title holder to the land constituting the roads in Chula Vista.
Based on the acquisition of the title to the roads the Homeowners Association executed and recorded a lengthy Declaration of Covenants and Restrictions relating to the roads in Chula Vista. This Declaration purports to relate to all of the roads and all of the "lots" in Chula Vista, and makes a distinction between Owners of lots and Members, which are defined as Owners who are also Members of the Homeowners Association. Owners of lots may become Members by executing a Joinder document constituting an acceptance and agreement with the Declaration. The Declaration proceeds to grant non-exclusive permanent and perpetual "membership" easements for ingress and egress over the roads to each lot in favor of each Member (and each tenant, agent, invitee and immediate family of such Member) all subject to many limitations and conditions in favor of the Homeowners Association. The Declaration provides that the Homeowners Association shall have exclusive control over the roads and their maintenance and repair, including paving, drainage structures, street lighting fixtures, landscaping and other improvements, and sets up a system of assessments against all lots in the subdivision providing that all annual, special and other assessments, together with all penalties, interest, costs and attorney's fees shall not only be a lien upon each lot but shall also be a personal obligation of each Member owning the lot.
The Declaration provision for assessments as to non-Member lot Owners peculiarly provides that the non-Member owner
Non-Member Owners of lots in Chula Vista brought an action for a declaratory decree against the corporate Homeowners Association claiming that as Owners of lots in Chula Vista subdivision and as members of the general public, they had nonexclusive perpetual easements over the roads and that the defendant corporate Homeowners Association was asserting that the non-Member Owners did not have legal rights of ingress and egress over the roads in Chula Vista (#1) and would not have until they became a Member in the Homeowners Association. The complaint also alleged that the Homeowners Association had contacted title insurance companies about the Declaration and the Homeowners Association's assertions resulted in title insurance companies refusing to insure titles in Chula Vista unless the Owners became Members of the defendant Homeowners Association. The non-Member Owners prayed that the court adjudicate that the roads conveyed to the defendant corporate Homeowners Association were subject to easements for ingress and egress in favor of non-Member Owners and in effect, that the non-Member Owners' lots and easement rights could not be encumbered, burdened, restricted, or limited or the title to their lots be rendered unmarketable by actions of the defendant Homeowners Association.
The defendant Homeowners Association filed a combination motion to dismiss and memorandum of law together with an answer, affirmative defenses, counterclaim and third party complaint, totaling 577 paragraphs and 175 pages in length. In summary, the defendant Homeowners Association's position is that the 1978 and 1986 dedication documents' right of ways for ingress and egress over the roads in Chula Vista were ineffective and that the defendant Homeowners Association acquiring the legal title to the roads had the right to do everything attempted to be done by the Declaration of Covenants and Restrictions, including assessing non-Member Owners for road repairs and improvements and imposing liens on their lots. The bases for this claim are: (1) that the 1986 deed did not name a grantee and was thus void, and (2) that there had been no acceptance of the roads by a governmental body acting on behalf of the general public. The reference is to a common law dedication (as opposed to a statutory dedication, see §§ 95.361, 177.081, Fla. Stat.).
The plaintiffs non-Member Owners moved to dismiss the defendant Homeowners Association's second amended counterclaim and amended third party complaint for failure to state a cause of action in failing to establish any legal duty or obligation on the holder of a non-exclusive easement for ingress and egress to maintain or repair the pavement or other surface of the land subject to the easement. The trial court granted the motion and dismissed the Homeowners Association's counterclaim with prejudice. The corporate Homeowners Association appeals. We affirm.
The plaintiff non-Member owners of lots in Chula Vista acquired, by implication of law, an easement over and across the lands designated as roadways in Chula Vista when they bought lots in that subdivision. See Crutchfield v. F. A. Sebring Realty Co., 69 So.2d 328 (Fla. 1954); Mumaw v. Roberson, 60 So.2d 741 (Fla. 1952); Spencer v. Wiegert, 117 So.2d 221 (Fla. 2d DCA 1959). As to the implied easements, the lots became dominant estates and the land under the roadway became a servient estate burdened with the obligation of the easement. The implied easement was for the benefit of the lot owners and carried no implied obligation that such lot owners, as owners of the dominant estate, had any duty or obligation to use, maintain, or improve the roadways. (#2) The original developer or seller of the lots in Chula Vista could have originally conditioned his conveyances of lots to the acceptance of obligations by the lot owners of some express duty or obligation relating to repairs, maintenance and improvements of the road right of ways but this was not done. After selling lots to Owners who thereby acquired right of ways for ingress and egress, the original subdivider as owner of the title to the roadways, being the servient estate, could not retroactively and unilaterally impose legal duties or obligations on the dominant estates (the lots) or the lot owners relating to the maintenance, improvements or repairs of the roadways. (#3) The defendant corporate Homeowners Association having merely acquired from the original subdivider, title to the roadways, a servient estate, stands in no better position or relationship than its grantor, the subdivider, and merely as owner of the servient estate, has no power or authority to create or impose legal obligations for maintenance, repairs or improvements of roadways upon the dominant estate (the lots) or the lot owners.
The Homeowners Association's position essentially ignores the legal concept of implied easements for ingress and egress and uses arguments applicable to the ownership of land failing to recognize those arguments are inapplicable to easements because of historical and inherent differences between legal concepts relating to land title and easements. Under the English feudal land system upon which Florida land title concepts are based, all land was owned by the king as lord paramount. The king infeuded parcels to levels of nobles (mesne lords) who in turn subinfeuded to lower levels. Each level of ownership owed obligations, such as knight service (servitium militare) and shares of produce from the lands (free and common socage), in the nature of rentals and other duties. (#4) The existence of duties corollary to land rights is the basis for the legal principle that joint landowners who have discharged duties obligatory on land ownership have causes of action to obtain contribution from other joint landowners whose land interests have been benefited by the discharge of the obligation upon the jointly owned land. (#5) However, easements are mere rights to make certain limited use of lands and at common law, they did not have, and in the absence of contractual provisions, do not have, obligations corollary to the easement rights. Furthermore, multiple holders of multiple dominant estates with implied non-exclusive easements over the same servient estate are not such joint owners as would support a right of contribution even if such obligations existed. (#6)
The basis for all of the claims of the
defendant corporate Homeowners Association contained in the counterclaim
and third party complaint are based upon an assumption that the lot owner
had no valid easement for ingress or egress prior to the deed of the roadway
to the corporate Homeowners Association (#7) and were
dependent upon receiving a grant of easement from the Association and that
the Association could condition its grant of easement to the lot owners
upon the lot owners "voluntarily" becoming Members of the Association and
by Joinder, agreeing to all of the provisions contained in the Association's
Declaration, which assumption is unwarranted and factually and legally
incorrect. The trial court was correct in holding that the counterclaim
and third party complaint failed to state a cause of action and correct
in granting the plaintiffs' motion to dismiss and that order of dismissal
#2 The Homeowners Association
seeks to transform the common law rule that between the servient estate
and dominant estate, the duty to maintain an easement rests on the dominant
estate, Morrill v. Recreational Development, Inc., 414 So.2d 590 (Fla.
1st DCA 1982) into a requirement or obligation that the dominant estate
maintain the easement. The rule is that a dominant estate may elect not
to maintain or repair the easement. See 2 Thompson on Real Property, §
428 p. 673.
#3 The lot owners cannot
be said to be tenants in common of an easement from whom a duty of contribution
exists for disproportionate payments required for preservation of the tenancy.
See Merrill Lynch v. George, 516 So.2d 1068 (Fla. 4th DCA 1987). Here there
are multiple distinct rights of user and not a single easement. 3 Tiffany,
The Law of Real Property, a 756 (3d Ed. 1939). See also Florida Power Corp.
v. McNeely, 125 So.2d 311 (Fla. 2d DCA 1960) (no estate or tenancy exists
in an easement).
#4 The modern equivalent
of obligations resulting from the ownership of lands is the payment of
taxes and other encumbrances. Joint landowners have legal rights of contribution
relating to such matters. For further discussion of the English feudal
land system see 2 Blackstone's Commentaries on the Laws of England Chpt.
v (Lewis Ed. 1897).
#5 The obligations imposed
on land ownership were likewise the basis for the importance of the ceremonial
"livery of seisin" and the later requirement that deeds name a grantee,
all to make it convenient to know who owed the duties. The lack of legal
obligations upon easement holders explains why grants of easements can
be granted to vaguely defined groups of grantees.
#6 As explained in 3 Tiffany,
The Law of Real Property, § 756, p. 202 (3d Ed. 1939): It not infrequently
occurs that two or more persons have, as appurtenant to distinct pieces
of land owned by them, exactly similar easements in a single piece of land.
For instance, one who owns several adjoining lots or parcels of ground
may, in conveying them to different persons, grant to each of such persons
a right of way in an alley, or over some land retained by them. The various
persons thus entitled to similar easements are sometimes referred to as
tenants in common of an easement but such an expression is inaccurate.
If the right of user vested in one person is appurtenant to one tract,
and the right of user vested in another person is appurtenant to another
tract, there are two distinct rights of user, two easements, and not one
easement. It is only when the two persons have an easement appurtenant
to land of which they are tenants in common that they can, with any degree
of accuracy, be said to be tenants in common of the easement.
#7 The Homeowners Association concentrates its argument upon attacking the validity of the 1978 and 1986 road dedications made by the Homeowners' grantors before executing a quitclaim deed of the roadways to the Association. The attack is that the dedications named no grantee and were not accepted by any official governmental entity. The general rule, derived from concepts of seisin, that a deed to land is insufficient if it fails to name a grantee capable of taking and holding title, does not apply to a common law dedication for public use, whereby the fee remains in the offeror and the public body merely acquires an easement giving the public right of use. McQuillin, Municipal Corporations § 33.07 (3d Ed.) Acceptance of a common law dedication may be by use of the public, City of Miami Beach v. Miami Beach Improvement Co., 153 Fla. 107, 14 So.2d 172 (1943); Bonifay v. Garner, 503 So.2d 389 (Fla. 1st DCA 1987), Hughes v. Town of Mexico Beach, 455 So.2d 566 (Fla. 1st DCA 1984), though such use must be for the benefit of the public at large. See generally McQuillin, Municipal Corporations § 33.50.