TERMINATION OF HOMEOWNER’S COVENANTS AND RESTRICTIONS
By: Barry L. Miller, Esq., Offices Orlando.
A stark percentage of the population of Florida fall subject to restrictive covenants—though many of such people do not know it, much less know what a restrictive covenant is. A restrictive covenant is a condition, based upon contract, between a grantor and grantee of real property which restricts the grantee’s use and/or occupancy of the land typically for the purpose of maintaining or enhancing the value of adjacent lands by controlling the nature and use of surrounding lands.
Typical examples of restrictive covenants include Covenants, Conditions and Restrictions, the documents which form a Homeowner’s Association, and Condominium Declarations, the documents which form a Condominium Association.
These restrictions; however, are not absolute and can be terminated by courts, or by operation of law, as the case may have it, by various means including abandonment of the covenant, waiver, acquiescence, or change in circumstances.
As to the first of these contentions, a restrictive covenant may be terminated by law as a result of abandonment. This particular theory is typically used as a defense by a homeowner in an action by a particular authority, such as a homeowner’s association, to enforce the covenant at issue. Generally, for a restrictive covenant to be deemed abandoned the person asserting the defense must prove that the covenant has been violated so frequently, and so extensively that a reasonable person would deem the covenant to have been abandoned. For example, consider Subdivision A in which exists a restrictive covenant stating that all homes in Subdivision A must have a red roof. In an action to enforce the red roof provision against Homeowner B, Homeowner B provides proof that 70 out of the 100 homes in the subdivision has a non-red roof. Similarly, Homeowner B provides proof that of those 70 homeowners, 68 painted their roof a non-red color over 5 years ago and that no actions to enforce the red rood provision, nor any fines levied, until the suit by the homeowner’s association against Homeowner B. A court would likely determine that the violations are so wide-spread, that any actions to enforce the covenant are nearly non-existent, and, as a result, the covenant requiring a red rood has effectively been abandoned. As the Florida Supreme Court noted in Stephl v. Moore, “[l]ong-continuted abandonment or acquiescence in violation of restrictive covenant…may forfeit the right to enforce it….”
Another method by which real covenants are terminated is by acquiescence, which is similar to abandonment. Acquiescence to a breach of a restrictive covenant may result in a waiver to enforce the covenant against a particular homeowner in that a continued breach of the covenant and the failure of others subject to the covenant to enforce it may constitute consent to the breach thereof. For example, in Woodlands Civic Ass’n, Inc. v. Darrow, Florida’s Fifth District Court of Appeal concluded that a voluntary homeowners’ association and individual property owners had acquiesced to a property owner’s use of a residential-only plot of land when it was demonstrated that the former property owner marketed the sale of the premises as commercial land for three (3) years, operated a business out of the property, and made renovations to the property to allow for commercial use. Woodlands Civic Ass’n, Inc. v. Darrow 765 So. 2d 874 (Fla. Dist. Ct. App. 5th Dist. 2000).
Lastly, Restrictive Covenants may be terminated by a change of circumstances. That is to say that the enforcement of the particular covenant would be unreasonable or oppressive as a result of changed circumstances in the neighborhood. To this end, courts and juries will look to the original purpose of the covenant to determine whether or not the intent of the covenant could reasonably be enforced. Say for example, Subdivision A has a real covenant which states that “no home in Subdivision A can be sold for less than $1,000,000.00.” Suppose further that, after a downturn in the real estate market that the homes in Subdivision A only could reasonably sell for $400,000.00 and that no prudent buyer would pay anywhere near $1,000,000.00 for a property in Subdivision A. A court would likely find that the covenant is ineffective due a resulting change of circumstances. More particular, the purpose of the covenant was likely to maintain property value by disallowing sales below a certain threshold; however, after all the homes fell in price anyway, homeowner’s would essentially be unable to sell their homes due to the covenant thus making it oppressive and unreasonable.
Barry L. Miller, P.A. is familiar with all aspects of restrictive covenants, if you, or anyone you know has questions regarding the legal status of any covenant, please call our offices at 407-423-1700 or email us at [email protected] for a free consultation.