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79-2212 |
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389 So. 2d 697; 1980.FL.0000575 |
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October 29, 1980 |
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LOCH HAVEN HOMEOWNERS' ASSOCIATION, INC.,
ETC., ET AL., APPELLANTS,
v. ROBERT B. NELLE AND VICKI NELLE, APPELLEES |
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Before DANAHY, Judge. HOBSON, A.C.J., and
RYDER, J., concur. |
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COURT OF APPEAL OF FLORIDA, SECOND DISTRICT |
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Docket No(s). 79-2212 1980.FL.575 |
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Appeal from the Circuit Court for Pinellas
County; John S. Andrews, Judge. |
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APPELLATE PANEL |
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DECISION OF THE COURT DELIVERED BY THE
HONORABLE JUDGE DANAHY |
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We are asked to decide whether the
reservation by subdivision developers of the right to approve exceptions
or variations with respect to restrictions placed by them on a residential
subdivision renders those restrictions unenforceable by the subdivision
lot owners inter sese. The trial judge in this case ruled that such a
reserved power precludes enforceability by the developers' grantees and
entered a final judgment on the pleadings against subdivision lot owners
who sought an injunction against an alleged violation of the restrictions
by other lot owners. We disagree with the trial judge, and reverse. |
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The restrictions at issue here were placed
on Loch Haven subdivision by a duly recorded instrument signed by the
developers and entitled "Loch Haven-Restrictions." They are
comprehensive and detailed, ranging from minimum floor area to type of
construction, from set-back requirements to placement of garbage
containers, from size and finishing of garages to outdoor clothes drying
limitations. Among others, the restrictions contain the following general
provisions: |
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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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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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Our supreme court has adopted the general
rule that restrictions as to use which are placed upon land by a common
grantor for the benefit of all of the grantees of such common grantor, and
which are part of a general scheme of development and improvement, are
enforceable in equity by any remote grantee from the common grantor
against any other grantee. Vetzel v. Brown, 86 So.2d 138 (Fla.1956). The
essential ingredient of enforceability is the finding of the existence of
a building scheme, which depends on the intent of the common grantor. 5 R.
Powell, The Law of Real Property, P 679 (1979). Courts initially viewed
the reservation of a power to amend restrictions as negating the existence
of a general scheme or plan of development and, accordingly, held that
restrictions subject to such a reserved power are not enforceable by one
remote grantee against another. E. g., Curronor Woods Property Owners'
Ass'n v. Driscoll, 106 Ohio App. 95, 153 N.E.2d 681 (1957). Two of our
sister courts have adopted that view. Finchum v. Vogel, 194 So.2d 49 (Fla.
4th DCA 1966); Ortega Company v. Justiss, 175 So.2d 554 (Fla. 1st DCA
1965). But cf. Flamingo Ranch Estates, Inc. v. Sunshine Ranches
Homeowners, Inc., 303 So.2d 665 (Fla. 4th DCA 1974) (reserved power to
amend elaborate restrictions is valid so long as it is exercised in a
reasonable manner so as not to destroy the general scheme or plan of
development). |
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The more modern judicial attitude-and the
one we adopt-is that the reservation of the right to amend restrictions is
only one factor to be considered in determining whether the grantor
intended to establish a uniform plan of development, and that all language
of the restrictions should be considered in arriving at the grantor's
intention. E. Sevier City Utility Dist. v. Wachovia Bank, 570 S.W.2d 850
(Tenn.1978); Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794 (1962); Kreppel
v. Tucker, 225 N.Y.S.2d 708 (Sup.1962); Goldberg v. Paul, 14 Misc.2d 988,
178 N.Y.S.2d 349 (Sup.1958); Reichman, Residential Private Governments: An
Introductory Survey, 43 U.Chi.L.Rev. 253, 292 (1976); Annot., 51 A.L.R.3d
556, 646 (1973). |
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Reviewing the restrictions involved in the
case before us, we find that an intent on the part of the Loch Haven
subdivision developers to establish a general plan or scheme of
development is clearly reflected in the provisions that the restrictions
are to be considered covenants running with the land and that any
subdivision lot owner shall have the right to bring a proceeding against
any person who violates any of the restrictions. Accordingly, we hold that
the restrictions are enforceable by the subdivision owners among
themselves notwithstanding the reserved power of the developers to approve
exceptions or variations. We express no opinion as to the merits of this
suit, only the opinion that appellants are entitled to remain in court at
this stage of the litigation. |
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REVERSED AND REMANDED. |
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HOBSON, Acting C. J., and RYDER, J., concur. |
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