05
Feb

Enforcing Recorded Covenants

Recent Appellate Decision Emphasizes Importance of Reasonableness and

Intent of Words in Interpreting and Enforcing Recorded Covenants

     A recent appellate court decision serves as a useful reminder of the issues that may arise and need to be considered in enforcing and interpreting recorded covenants that impact the use of real property, such as a declaration of covenants, conditions and restrictions for a subdivision. In the case of Leamer v. White (issued on January 27, 2015), Florida’s First District Court of Appeal was asked to interpret a use restriction at issue in a dispute between neighboring owners of townhomes, one of whom had installed a lighting system that may have potentially impacted the other neighbor and their lot without first seeking the requisite approval for the lighting system from an architectural review board as set out in the recorded covenants for the property. The use restriction at issue included language indicating that “lighting systems which may be offensive to adjacent neighbors [were] unacceptable.” The architectural review board interpreted the use restriction to require the approval of adjacent neighbors before the lighting system could be approved and would not approve of the lighting system unless the adjacent neighbors consented to the installation. In spite of efforts to bring the neighbors into agreement about the previously-installed lighting system, the dispute could not be resolved and the neighbor who had opposed the lighting system filed suit against the owner who had installed the lighting system. The lower court agreed with the complaining neighbor’s interpretation of the use restriction and disagreed with the other neighbor’s argument that an interpretation of the use restriction that would require the adjacent neighbors to agree to the installation would be unreasonable and arbitrary.

The appellate court, recognizing the various legal standards involved in enforcing use restrictions, focused on the established principles that use restrictions will be strictly construed in favor of the free and unrestricted use of real property and will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms. In considering these principles, the appellate court concluded that to require adjacent neighbors to consent to the lighting system would be unreasonable and could not be the intent of the provision. Instead, the appellate court concluded that the more reasonable intent of the provision was to make the adjacent neighbor’s opinion a – rather than the – factor and that the provision otherwise made it clear that the architectural review board had the authority under the provision to approve of the installation without any neighbor having the final say.

Douglas G. Christy, Esq.

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