Opinion
1D20-3318
07-19-2023
Edward and Linda Huck, Appellants, v. Kenmare Commons Homes Association, Inc., Charlene Estes, Dorothy Feazell, Celeste Rosso, Tom Dearing, Ziomara Sawyer, and Connie Hill, Appellees.
David J. Fredericks of Anderson, Givens & Fredericks, P.A., Tallahassee, for Appellants. William D. Hall, III of Dean Mead & Dunbar, Tallahassee, for Appellees.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge.
David J. Fredericks of Anderson, Givens & Fredericks, P.A., Tallahassee, for Appellants.
William D. Hall, III of Dean Mead & Dunbar, Tallahassee, for Appellees.
TANENBAUM, J.
Edward and Linda Huck live in the Kenmare Commons neighborhood of Tallahassee. Edward is in his seventies, disabled, and in need of the assistance of a round-the-clock, in-home caregiver. The caregiver in turn needs a car to get to the job. A public road runs through the neighborhood and in front of the Hucks' house, and the caregiver routinely parks there. The appellees-some neighbors and their homeowners' association, Kenmare Commons Homes Association, Inc. ("KCHA")-sued to stop this practice based on a street-parking limitation contained in the recorded covenants and restrictions governing the neighborhood, which they contend is enforceable against the Hucks. The trial court rendered summary judgment in favor of the plaintiffs who moved for it-all but KCHA and Celeste Rosso- and effectively dismissed as moot the complaint as to the two nonmoving plaintiffs. In that judgment, the trial court declared that the Hucks violated the parking limitation and enjoined them and their guests from parking on the public street for "sustained, permanent, or regular periods of time." The Hucks assert several grounds for reversal, and we accept one: Because the developer made the road public by turning it over to the City of Tallahassee, the covenant regarding parking does not bind the Hucks. We reverse and direct that the trial court dismiss the complaint with prejudice.
The plaintiffs in that suit now are the appellees in this appeal.
We start with the acknowledgement that decades ago, the original developer-Killearn Properties, Inc.-promised prospective purchasers of to-be-built-out subdivided parcels that there would be no street parking. The developer made the promise as part of its declaration of covenants and restrictions, which it recorded in May 1991. According to the developer, it was subjecting the real property it owned in the new neighborhood to the declaration for the purpose of preserving the value of the nascent community. Here is what the beginning of the declaration looked like:
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Here is the land that the developer subjected to its declared restrictions and covenants:
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Despite its intent to make for a nice residential community "with permanent parks, lakes, playgrounds, open spaces and other common facilities," the developer apparently did not want to take responsibility for maintaining the neighborhood roads: By the time it recorded the declaration, the developer already had turned over responsibility for the neighborhood roadways to the taxpayers, deeding all ownership interests in the roadways in fee simple to the City of Tallahassee, as so:
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Here is a schematic showing the roads the developer gave the city to care for on its own:
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The real property that the developer intended to subject to the declaration, then, ultimately did not include the shaded roadways shown in the above diagram; it could not because it no longer owned them. As it turns out, the main roadway shown here includes the street in front of the Hucks' house on which the caregiver frequently parks-the one central to the dispute between the parties.
Nevertheless, the developer's parking promise appears in article VIII of its declaration, titled "Land Use and Building Type." It was as follows:
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Keep in mind that every other covenant and restriction the developer put into the declaration addresses the use of land owned by a homeowner, the developer, or the association (as common property). Then there is this exceptional provision: "No cars shall be parked on grass areas on a sustained, permanent or regular basis. Cars will be parked in the garage or on paved areas off the street. No cars shall be parked on the street for sustained, permanent or regular periods of time." (emphasis supplied). The highlighted promise is what KCHA and neighbors are trying to enforce against the Hucks.
Coming from the developer at the beginning of the neighborhood in 1991, this promise no doubt sounded like an alluring one. Imagine a new development, and you are a pioneer purchaser of one of the lots while construction continues all around you. Naturally, you would prefer not to arrive at your new home at the end of the day and find all kinds of construction, development, and sales vehicles parked up and down your street, including in front of your house. The promise of no parking on the by-then-public streets is a promise the developer could make-and one that purchasers (themselves or via the association) could enforce- against the developer. It, however, is not a promise made by the Hucks to anyone. Let us explain.
To be sure, the Hucks are not "parties" to the neighborhood's restrictive covenants, including this one. Restrictive covenants regarding real property are not like personal contracts. "Covenants are divisible into two major classes: (1) real covenants which run with the land and typically bind the heirs and assigns of the covenanting parties, and (2) personal covenants which bind only the covenanting parties personally." Hayslip v. U.S. Home Corp., 336 So.3d 207, 209 (Fla. 2022); see also Maule Indus., Inc. v. Sheffield Steel Prods., Inc., 105 So.2d 798, 801 (Fla. 3d DCA 1958) ("A covenant running with the land differs from a merely personal covenant in that the former concerns the property conveyed and the occupation and enjoyment thereof, whereas the latter covenant is collateral or is not immediately concerned with the property granted.").
Where a covenant "runs with the land," successors to the property owner who made that covenant "become liable as promisors upon the promise made by their predecessor," even though they are succeeding to an ownership or possessory interest in the real property rather than assuming the obligations of a contract under an assignment. RESTATEMENT OF PROP. § 530 cmt. a (at 3194) (Am. Law Inst. 1936); see also id. cmt. c (at 3195) ("Under the rules relating to the running of the burden of promises respecting the use of land the successor to the promisor becomes bound, if the promise runs to him, as though he were himself a promisor."); see Burdine v. Sewell, 92 Fla. 375, 392 (Fla. 1926) ("A covenant is said to run with the land when either the liability to perform it or the right to take advantage of it passes to the vendee or other assignee of the land."). This, then, is the key distinction between a covenant running with the land and a typical promise. "Ordinarily a promise creates a promissory or contractual obligation only on the part of the one making the promise." RESTATEMENT OF PROP., Div. V, Ch. 45, Intr. Note, Topic A (at 3192) (Am. Law Inst. 1936). When, however, a promise regards "the use of land, a successor to the ownership of one who has made a promise respecting the use of his land may, merely by virtue of such succession, become subject to promissory or contractual obligations on promises made by his predecessor." Id. (emphasis supplied). Running with the land, in essence, is a substitute for consideration. It turns a promise that would be binding only on the maker into a contract-like obligation that is binding on the maker's successors, even though they personally never signed onto the promise. Indeed, if the promise can be said to run with the land, purchase of the land with notice is enough.
We refer to the original Restatement of Property-and only that version-judiciously, and only to the extent it appears consistent with the early development of Florida's common law regarding real property. We otherwise share the late Justice Scalia's dubiousness about later editions of the Restatement. See Kansas v. Nebraska, 574 U.S. 445, 475-76 (2015) (Scalia, J., concurring in part, dissenting in part) (noting how the "modern Restatements . . . are of questionable value, and must be used with caution" because they "have abandoned the mission of describing the [general common] law [as it exists], and have chosen instead to set forth their aspirations for what the law ought to be").
Whether the parking promise in this case runs with the land, then, makes all the difference. Because the Hucks did not make the parking promise-there is no binding contract here, supported by consideration-it could bind them only if it could be said to "run with their land." If the covenant does not run with the land, the Hucks "acquired [their] land free of it." Armstrong v. Seaboard Air Line Ry. Co., 95 So. 506, 509-10 (Fla. 1922). Yes, to "run with the land" is an ancient real property principle studied in the first year of law school. But as we see in Hayslip, the principle still applies in Florida. See Hayslip, 336 So.3d at 209 (looking to "the following three conditions[, which] must exist to create a valid and enforceable covenant running with the land: (1) the existence of a covenant that touches and involves the land; (2) an intention that the covenant run with the land; and (3) notice of the restriction on the part of the party against whom enforcement is sought" (internal quotation and citation omitted, and emphasis supplied)). The emphasized portion of the quote from Hayslip is the rub for KCHA and the disgruntled neighbors: The restriction they seek to enforce against the Hucks has nothing to do with, and makes no reference to, the use of their own property.
"In order that a covenant may run with the land it must have relation to the land or the interest or estate conveyed, and the thing required to be done must be something which touches such land, interest, or estate and the occupation, use, or enjoyment thereof." Maule Indus., Inc., 105 So.2d at 801. The parking promise at issue, though, would not be "so related to land of the [Hucks] as to run with it unless the promise requires that the land be used in a specified way " RESTATEMENT OF PROP. § 537 cmt. g (at 3221) (Am. Law Inst. 1936) (emphasis supplied). In other words, a promise cannot run with the Hucks' land unless it relates to "the way in which [their] land [] is used." Id.; see also id. cmt. b (at 3219) ("For the burden of a promise to run the promise must be one respecting the use of the land of the promisor.").
Perhaps it could be argued that a restriction on the Hucks and their invitees' parking on the public roads near their house does affect the use of their property because it affects how many people the Hucks can have over to the house at one time. This, however, is not the type of use that "running with the land" contemplates. That connection is too tenuous and indirect to support application of an otherwise personal promise to the Hucks. See generally Caulk v. Orange County, 661 So.2d 932, 934 (Fla. 5th DCA 1995) ("The covenant in Caulk's deed to Hibbard is incapable of running with the land. Although the covenant 'concerns' the land, it does so only tangentially. . . ."); RESTATEMENT OF PROP. Div. V, Part III, Intr. Note (at 3150) (Am. Law Inst. 1936) (explaining that the term "promise respecting the use of land . . . means that there is contemplated by the parties to such a promise a use of identified land which is not merely casual and which is not merely an incident in the performance of the promise"); id. ("Even when the promise identifies a specific tract of land as the sphere of action contemplated by it, the use of the land may be so incidental in the performance of the promise, or the promised action may be of such a casual and temporary character, as to prevent the promise from being a 'promise respecting the use of land'"). Instead, "[t]he use of land involved must be a primary consideration of the undertaking of which the promise is a part and the promise must contemplate a degree of permanency in the particular use." Id. at 3151. Such is not the case here.
It is true, as the appellees argue, that nothing in chapter 720 precludes the KCHA or the unhappy neighbors from going after the Hucks in court regarding parking on streets they do not own, possess, or maintain. At the same time, the chapter is not an independent source of authority for KCHA or anyone else to hold the Hucks to account in a trial court for personal activity (not someone else's, and not their own) on a public road or in some other public space. The point being here that there still must be an enforceable restriction in that "chapter, the governing documents of the community, [or] the rules of the association" on which to sue for redress under the chapter. § 720.305(1), Fla. Stat. As we now have discussed, the no-parking promise was personal to and enforceable against the developer. It is not enforceable against anyone else, and certainly not against the Hucks regarding someone else's parking on the city's streets. The supposed parking restriction at issue here does not relate to the use of real property that originally was subjected to the developer's covenants, so KCHA and the other plaintiffs lacked a legal basis for their complaint as pleaded.
If we were dealing with a restriction on cars parked on the Hucks' property (say, how many cars could be parked in their driveway), it would be a different matter entirely. That is not what we have in this case. As we have described, the developer saw to it in 1991 that KCHA would not own or be responsible for the neighborhood roads, so instead, we have a restriction on personal activity on property that bears no connection to the association. Indeed, the roads now belong to the taxpayers. If KCHA or individual association members do not like how the neighborhood roads are being maintained or policed, they have a remedy, but it does not lie in the courts. Rather, they can contact the city.
The summary judgment in favor of those plaintiffs who moved for it was error. Moreover, as a matter of law, there was no cognizable claim that could be asserted based on the caregiver's persistent parking. On remand, then, the trial court shall dismiss the complaint with prejudice.
REVERSED and REMANDED WITH INSTRUCTION.
WINOKUR and NORDBY, JJ., concur.