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59919 |
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413 So. 2d 28; 1982.FL.0002621 |
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April 8, 1982 |
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ROBERT B. NELLE, ET AL., PETITIONERS
v.
LOCH HAVEN HOMEOWNERS' ASSOCIATION, INC., ET AL., RESPONDENTS DOCKET NO(S).
59919 1982.FL.2621
PROPERTY OWNERS IN LOCH HAVEN SUBDIVISION ACQUIRED THEIR RESPECTIVE LOTS
SUBJECT TO DULY RECORDED DEED RESTRICTIONS. THESE RESTRICTIONS ARE
COMPREHENSIVE AND DETAILED. NELLE
v.
LOCH HAVEN HOMEOWNERS' ASSOCIATION, 389 SO.2D AT 698. THREE OF THESE
RESTRICTIONS ARE PARTICULARLY PERTINENT TO THE RESOLUTION OF THE LEGAL
ISSUE HERE IN QUESTION. |
| [6] |
Before ADKINS, Justice. BOYD, OVERTON and
McDONALD, JJ., concur. |
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SUPREME COURT OF FLORIDA |
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APPELLATE PANEL |
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DECISION OF THE COURT DELIVERED BY THE
HONORABLE JUDGE ADKINS |
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The second district acknowledges that two of
its sister courts have taken an approach different from the one adopted by
the second district in Nelle v. Loch Haven Homeowners' Association, 389
So.2d 697 (Fla. 2d DCA 1980). See Finchum v. Vogel, 194 So.2d 49 (Fla. 4th
DCA 1966), and Ortega Co. v. Justiss, 175 So.2d 554 (Fla. 1st DCA 1965).
We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. |
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g. These covenants and restrictions are real
covenants and restrictions and are to run with the land, and shall be
binding on all parties and owners, and on all parties claiming under them
//-- |
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h. If any person, firm or corporation, or
their heirs, successors or assigns, shall violate or attempt to violate
any of the restrictions before their expiration, it shall be lawful for
any other person or persons owning any part or parcel of any above
described land to prosecute and proceeding ]sic[ at law or in equity
against the person violating or attempting to violate any such covenant or
restriction and to either prevent him or them from doing ]sic[ or to
recover damages or other dues for such violation. |
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//-- |
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k. The Developer shall have the right and
authority to approve exceptions or variations from these restrictions
without notice or liability to the owners of other lots or any persons or
authority whatsoever. |
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These covenants present the question of
whether the developer's reservation of the right to approve exceptions to
the restrictive covenants prevents enforcement of the remaining covenants
by a remote grantee. |
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Ordinarily, restrictive covenants are
unenforceable by one not a party to the conveyance unless the covenants
were made by a common grantor for the benefit of all grantees. Osius v.
Barton, 109 Fla. 556, 147 So. 862 (1933). One method of demonstrating this
beneficial intent of the grantor is through a common, uniform, or scheme
of restriction imposed on the property transferred out of the common
grantor. Id. 147 So. at 866. Thus, a remote grantee may enforce
restrictive covenants against another remote grantee when a common grantor
intended to create a uniform building plan or scheme of restrictions.
Batman v. Creighton, 101 So.2d 587 (Fla. 2d DCA 1958). |
| [17] |
In the past, reservation of the right to
modify subdivision restrictions negated the existence of a common, uniform
building plan thereby preventing enforcement of the restriction by a
remote grantee. Finchum v. Vogel. See also Carranor Woods Property Owners'
Association v. Driscoll, 106 Ohio App. 95, 153 N.E.2d 681 (1957). We
disagree with this rule and affirm the modern view adopted by the second
district. |
| [18] |
Traditionally, reservation of the right to
modify restrictions, without some limit, allowed the grantor to entirely
change the character of the subdivision at the grantor's whim with no
corresponding benefit to the grantee. Thus, there was no assurance that
the subdivision would remain subject to the restrictions which supplied
the mutual benefit or consideration necessary to allow enforcement. More
recently, however, courts have begun to require that the reserved power be
exercised in a reasonable manner so as not to destroy the general plan.
Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners 's, Inc., 303
So.2d 665 (Fla. 4th DCA 1974); Johnson v. Three Bays Properties b 2, Inc.,
159 So.2d 924 (Fla. 3d DCA 1964). Reading this reasonableness requirement
into the reservation of power to modify undercuts the grantor's unfettered
control and provides the mutual burden and benefit to both grantor and
grantees necessary to sustain the covenants. The subdivision will
substantially retain the character and restrictions contemplated by the
grantor and each grantee at the conveyance. |
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There may be times, however, when the
grantor reserves too much power or other factors support a finding that a
common building plan was not intended. Because this intent is critical we
cannot subscribe to the "all or nothing" rule previously held.
We, therefore, hold that a reservation by the developer of the power to
approve exceptions to the restrictive covenants is merely one factor to be
considered in determining whether the developer intended to establish a
uniform plan of development. |
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We find that the restrictions in the instant
case show an intent on the part of the developer to establish a uniform
plan of development. They are comprehensive and detailed. Moreover, the
language of covenant g. expresses an intent that the covenants are to run
with the land and be binding on and enforceable by all parties and owners.
Plaintiffs are entitled to continue their suit for permanent injunction. |
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In light of the foregoing, the decision of
the Second District Court of Appeal is approved. |
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It is so ordered. |
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BOYD, OVERTON and McDONALD, JJ., concur. |
| [24] |
SUNDBERG, C. J., dissents. |
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