Adrift in the amendments sea: Florida courts struggle for logic and consistency part I.

• Author: Hartenstine, J. Michael
• Position: Real Property, Probate and Trust Law

Amendments to recorded subdivision restrictions are common and usually provoke no objection from affected lot owners. Occasionally, however, the change wrought by an amendment so offends at least some lot owners that they seek to have the amendment judicially invalidated. Over the years, the Florida courts have developed varying tests for adjudicating the validity of amendments to subdivision restrictions, generally aspiring to a rule of reasonableness. This article traces the course of that development, critiques the rationales employed by the courts in both the creation and application of the reasonableness rule, and recommends adopting the principles of the Restatement (Third) of Property: Servitudes to adjudge the validity of future amendments to subdivision restrictions.

Common Benefit and a General Plan of Development

In 1933, the Florida Supreme Court decided Osius v. Barton, 147 So. 862 (1933), answering an elementary question concerning the enforcement of subdivision restrictions: Can remote grantees enforce restrictions imposed by a common grantor? Yes, they can, the court said, if the restrictions were made for their benefit as well as for the benefit of the grantor. Such common benefit is generally found "where the scheme of restriction ... is universal or reciprocal, as the consideration for the obligation to observe the restrictions is the imposition of the same or kindred restrictions on other lots similarly situated." (1)

Osius involved a restriction imposed by the common grantor of lot owners Osius and Barton. The restriction prohibited commercial uses within a subdivision in Miami Beach; Osius violated the restriction by operating a beauty parlor. Each deed recited that the restriction was a covenant running with the land and could be enforced by any subdivision lot owner. Osius argued that the restriction was not enforceable by Barton because, instead of a creating a uniform plan for the subdivision, the common grantor "followed a plan flexible and subject to change from time to time." (2)

The court responded that a uniform plan of development was not essential to the enforcement of restrictions by a remote grantee. Although a uniform plan of development often could be the primary indicator of a common benefit in cases in which the common benefit "is not otherwise apparent," (3) the court ruled the common benefit was apparent from the very language of the deeds imposing the restriction--namely, that the restriction was a covenant running with the land and could be enforced by any subdivision lot owner. Thus, Osius' allegations regarding the absence of a uniform plan of development were deemed immaterial as to the enforceability of the restriction.

The Florida Supreme Court next considered the enforceability of restrictions by remote grantees in Vetzel v. Brown, 86 So. 2d 138 (Fla. 1956). A recorded agreement permitted commercial uses on some subdivision lots and restricted the remaining lots to residential usage. Vetzel sued to cancel the residential restriction on the Vetzel lots. The agreement expressly provided that its provisions were covenants running with the land and were binding on all subsequent lot owners. Under the logic of Osius, the court could have been expected to find this language sufficient to establish the common benefit necessary for enforcement of the restrictions by remote grantees. To the contrary, the court cited Osius solely for the proposition that enforcement was warranted when the restrictions were imposed "for the benefit of all of the grantees of such common grantor, and as a part of a general scheme of development and improvement...." (4)

In this single phrase, the Vetzel court modified the test for enforcement of restrictions by remote grantees. Under Osius, the test was whether a common benefit existed--a general scheme could be an indicator of a common benefit, but it was not a sine qua non. Under Vetzel, a general scheme was required in addition to a common benefit. The Vetzel court further parted ways with Osius in finding that the segregation of commercial lots and residential lots was alone sufficient to evidence a general plan; under Osius, the mere restriction of lots to residential purposes was insufficient to evidence a uniform plan.

In 1980, Loch Haven Homeowners' Association, Inc. v. Nelle, 389 So. 2d 697 (Fla. 2d DCA 1980), addressed whether a developer's right to approve exceptions to restrictions precluded enforcement of the restrictions by a remote grantee. Consistent with Vetzel, the Loch Haven court maintained that the "essential ingredient of enforceability is the finding of the existence of a building scheme ...." (5) Rejecting the view that the power to amend restrictions automatically negated the existence of a general scheme, (6) the court concluded that a reserved power to amend restrictions was only one factor to consider in determining whether a general plan of development existed. Then, reaching back to Osius without invoking its name, the court reasoned that "a general plan or scheme of...