Victorville West Limited Partnership (“Victorville”) purchased the Inverrary Golf Course and Clubhouse within the Inverrary community in Lauderhill, Florida, in 2006. Victorville acquired the property subject to a restrictive covenant that became the subject of a lawsuit that the Fourth DCA recently ruled could not be canceled because it remained a substantial benefit to the surrounding homeowners.

Restrictive Covenants

When a person or entity purchases property, the property may be subject to a restrictive covenant that limits the purchaser’s use. The most common example is the restrictions provided by the declaration of covenants, restrictions, and easements that a homeowner’s association enforces within a residential neighborhood.

Continue Reading Appeals Court Hands Down a Win for Florida HOA

gavel.jpgThe Florida Marketable Record Title Act (“MRTA”) was enacted in 1963 to simplify conveyances of real property and provide greater certainty to landowners. Generally, MRTA provides that any person holding any recorded estate or interest in land for 30 years or more has title to the land, free and clear of most claims or encumbrances. By eliminating many old and stale title claims, MRTA makes examining title to real property less labor intensive. An important effect of MRTA is that covenants and restrictions may be extinguished 30 years after their creation.

Restrictive Covenants Imposed by Governmental Zoning Approvals Are Not Subject to MRTA

Recently, in Save Calusa Trust v. St. Andrews Holdings, Ltd., et al., Nos. 3D14-2682 & 3D14-2690 (Fla. 3d DCA Jan. 13, 2016), the Third District addressed whether a restrictive covenant that is recorded in compliance with a government-imposed land use approval is a title interest subject to extinguishment by MRTA. The developer in that case sought both a rezoning and an “unusual use” approval in 1967 to create a new golf course development in Miami-Dade County. In a resolution approving the developer’s “unusual use” application, the County’s Zoning Appeals Board imposed a restrictive covenant requiring the property to be perpetually maintained as a golf course. Thereafter, the restrictive covenant was recorded in 1968, and the developer subsequently sold the property. In 2012, after acquiring the subject property and realizing that the golf course was no longer profitable, the subsequent developer/owner filed an action in circuit court to declare the restrictive covenant void, arguing it had been extinguished under MRTA. The Third District disagreed and held that because the restrictive covenant had been imposed through the governmental zoning reclassification approval process, the covenant did not fall within the purview of MRTA’s extinguishing effect.

Impact of Proposed MRTA Amendments

Continue Reading How the Save Calusa Trust Case and Proposed Legislation Impacts Florida Property Owners and HOAs

caterpillar_front_loader_283346_l.jpgThe First District Court of Appeal’s recent holding in Howard v. Murray, No. 1D14-1996, 2015 WL 6847833 (Fla. 1st DCA Nov. 9, 2015), serves as a cautionary tale for those purchasers taking title to a parcel of real property that has been previously approved as a part of a development of regional impact (DRI).

The Facts

In Howard, the original developer of the 2300 acre Sandestin DRI went bankrupt and the DRI was then fragmented. The initial DRI development order was also amended to allot 550,000 square feet of commercial development rights to a 48.1 acre parcel, 16 acres of which were later sold. The deed’s language granting legal title to the 16 acre parcel made no mention of development rights.

Continue Reading DRI Development Rights Do Not Automatically Pass with the Conveyance of Title

mining via Kelly Michals on FlickrAs defined in Section 380.06, Florida Statutes, a development of regional impact (“DRI”) is “any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county.”

A Brief History of DRIs in Florida

Since the DRI program’s inception in 1972, it has been chipped away by the enactment of numerous legislative exemptions. In 2009, the Legislature enacted an exemption for Dense Urban Land Areas (“DULAs”), which exempted projects from DRI review in eight counties and 243 cities. In 2015, the Florida Legislature attempted to reduce duplicative and burdensome regulation by eliminating the requirement that new developments be reviewed pursuant to the DRI process by only subjecting such proposed developments to the requirements of the State Coordinated Review Process.

Continue Reading New Legislation on the Horizon for DRIs in Florida

gavel.jpgRecently, a number changes to Lee County’s land development regulations have been implemented which may be of significant interest to both the general public and practitioners throughout Southwest Florida.

Changes to the County’s LDC

On November 17, 2015, the Lee County Board of County Commissioners (the “Board”) adopted Lee County Ordinance No. 15-15, which modifies Chapters 10, 12, 26, and 34 of the County’s Land Development Code (“LDC”). This ordinance took effect on November 20, 2015.

Continue Reading Tidying-Up Lee County’s Land Development Regulations

The story behind this new cause of action

gavel.jpgThis legislation expands the Bert J. Harris Jr., Property Rights Protection Act (which we have recently discussed here and here) and codifies the 2013 United States Supreme Court’s Koontz decision. Following the Koontz case, a local government’s power to condition the approval of proposed development by demanding property or monetary exactions has been significantly curtailed.

Effective October 1, 2015, Florida has crafted a new cause of action under Section 70.45, Florida Statutes, which will provide relief for property owners who have been subjected to such an unlawful exaction.

How it works

Continue Reading New Florida Law Benefits Property Owners Subjected to Unlawful Exactions

clock via George Vnoucek Flickr Creative CommonsIn 2011, Florida enacted section 252.363, Florida Statutes, a law which grants certain permits and authorizations an extension for the amount of time a declared state of emergency was in effect, plus an additional 6 months.

Important Executive Orders

Following Governor Scott’s recent declarations of emergency, many throughout Southwest Florida now have an opportunity to extend the expiration dates of their permits. On August 28, 2015, following the threat of Tropical Storm Erika, Governor Scott declared a state of emergency in Executive Order 15-173 which applied to the entire state of Florida and will last until October 27, 2015. Previously, on August 6, 2015, Governor Scott had also declared a state of emergency for Dixie, Hillsborough, Pasco, Pinellas, and Taylor Counties that will last until October 5, 2015.

What does this mean for you?

Continue Reading The clock is ticking if you want a permit extension under this Florida law

On October 1, 2015, various revisions to the Bert J. Harris, Jr., Private Property Rights Act will take effect. On October 1, among other things, the definitions of “property owner” and “real property” will change as set forth in Chapter 2015-142 Laws of Florida. The changes may limit the reach of the Second District Court of Appeal’s decision that expanded the rights of property owners in Southwest Florida since “property owner” will mean “the person who holds legal title to the real property that is the subject of and directly impacted by the action of a governmental entity.” The FINR II, Inc. v. Hardee County decision held that the Bert Harris Act provided a cause of action to owners of real property “inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property.” With the change in definition effective October 1, it seems the impact of the FINR II decision may be short-lived.

We’ll be sure to keep you updated!

Wedding Rings with Gay Symbols.As the laws change, we strive to share how they will affect our clients and readers of this blog. Thus, we are pleased to share the following guest post by Florida Bar Board Certified Wills, Trust and Estate Planning Attorney Eric Gurgold.

On June 26, 2015 the Supreme Court of the United States, in Obergefell v. Hodges, Director, Ohio Department of Health, in a five to four opinion ruled to allow same sex marriages in every state. The Court held that the 14th Amendment requires a state to license a marriage between two people of the same sex and to recognize the marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. The Court said the 14th Amendment concepts of due process and equal protection require states to treat same sex couples the same as opposite sex couples with regard to the fundamental right of marriage. The ruling does not apply to civil unions or other arrangements where the couple is not lawfully married.

Effect on Homestead Provisions

Continue Reading Impact of the Supreme Court’s Ruling on Same Sex Marriages on Homestead and Property Rights

The Second District Court of Appeal, which covers fourteen counties in West Central Florida and Southwest Florida from Pasco County in the north to Collier County in the south, issued a decision in June 2015 that significantly expands the rights of real property owners in Southwest Florida. In the case entitled FINR II, Inc. v. Hardee County, the appellate court ruled that

the Bert [J.] Harris [, Jr., Private Property Rights Protection] Act provides a cause of action to owners of real property that has been inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property.” (Emphasis added.)

Facts of the Case

Continue Reading Recent Court Decision Expands Rights of Property Owners in Southwest Florida