In short: No. A Miami-Dade covenant required deeds to state how many housing units went with each parcel, and none in the chain of title did. The trial court ruled the current owner forfeited its development rights. On September 27, 2012, the Third District reversed, holding courts cannot add a forfeiture penalty the covenant never contained.
The Facts
Presidential Estates is a 158-acre community in Miami-Dade County. In 1986 the original developer rezoned the land and signed a restrictive covenant with the County. Its controlled-densities clause capped the total number of homes and required the owner, in any deed conveying part of the property, to state how many units were allocated to that parcel and to notify the County. A 1987 supplemental covenant lowered the cap to 800 units. A separate clause gave the County a remedy if the covenant was not followed: it could withhold permits, inspections and approvals until the owner complied.
The land changed hands several times. One owner built 173 zero-lot-line homes. None of the deeds in the chain of title stated a unit allocation, and the County was never notified of one. The remaining 104 acres, including the golf course land, eventually went through a foreclosure, and 19650 NE 18th Ave., LLC took title.
The homeowners association asked the court to declare that because no deed carried any unit count, the current owner had no right to build any homes. The trial court agreed and entered partial final summary judgment for the association, finding that the owner had forfeited its development rights.
The Decision
The Third District reversed on September 27, 2012, and directed entry of judgment for the landowner. The court read the covenant as written. It set a cap, required a unit count in deeds, and required notice to the County. Nothing in it said that skipping those steps would cancel development rights. The covenant named its own remedy, which was the County’s power to withhold permits and approvals until the owner complied. By adding forfeiture, the trial court rewrote the parties’ agreement.
The court also relied on the long-standing rule that restrictive covenants are strictly construed in favor of the free and unrestricted use of land. A reading that wipes out all future development for a paperwork omission runs against that rule.
The Law
Florida courts enforce restrictive covenants when they are clear, reasonable and show the parties’ intent, but they read them narrowly. Any doubt is resolved in favor of the free use of property, and a court may not add terms, including penalties, that the parties did not write. This is basic contract law applied to land. Covenants affecting a community are also preserved and governed in part by the Marketable Record Title Act, section 712.05, and HOA covenant revitalization rules in section 720.403, which matter when old restrictions are at issue.
The lesson for drafting is simple. If the parties want a harsh consequence such as forfeiture, they must say so plainly. Courts will not supply it.
Lessons
- A covenant means what it says. If it does not spell out forfeiture, a court should not impose one.
- When a covenant lists its own remedy, such as withholding permits, that is usually the remedy you get.
- Buyers of large parcels should still check density allocations and County records before closing, because the County’s permit remedy can stall a project.
- Associations opposing development need language in the recorded documents, not inferences from missing paperwork.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Golf Course Covenant: Does a Deed Silent on Unit Count Forfeit Development Rights? | 19650 NE 18th Ave v. Presidential Estates
Go Deeper
- Easement Disputes in Florida: Utility, Access, and Prescriptive Easements
- Florida's Summary Judgment Rule: How Rule 1.510 Ends Cases Without a Trial
Frequently Asked Questions
Can a Florida court add a forfeiture to a restrictive covenant?
Generally no. Florida courts enforce restrictive covenants according to their plain language and will not rewrite them to add penalties the parties did not include. In this case, the Third District reversed a ruling that read a forfeiture of development rights into a covenant that only gave the County the power to withhold permits.
How are restrictive covenants interpreted in Florida?
They are enforced if clear and reasonable, but they are strictly construed in favor of the free and unrestricted use of real property. Ambiguities are resolved against the restriction, and the words are given their ordinary meaning as understood when the covenant was signed. Courts will not add terms the parties left out.
What happens if a deed leaves out a required density allocation?
It depends on the covenant. Here the covenant required each deed to state the units allocated, but its only stated remedy was that the County could withhold permits and approvals until compliance. The court held the omission did not erase the owner’s right to develop, and it ordered judgment entered for the owner.
Can an HOA stop development on a former golf course in Florida?
Only if the recorded covenants or land use rules give it that power. Associations often rely on old restrictions, but courts read those narrowly. In this case the association lost because the covenant did not provide for forfeiture of development rights, and its only stated remedy was permit withholding.
Talk to a Florida foreclosure and HOA lien lawyer
Weidner Law, P.A. handles Florida mortgage and association lien foreclosures from St. Petersburg. If you need a foreclosure defense lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
