19650 NE 18th Ave. LLC. v. Presidential Estates Homeowners Ass'n, Inc., 3D11–2584.

• Decision Date: 27 September 2012
• Docket Number: No. 3D11–2584.,3D11–2584.
• Citation: 103 So.3d 191
• Parties: 19650 NE 18TH AVE. LLC., Presidential Club, LLLP, and The Union Labor Life Insurance Company, Appellants, v. PRESIDENTIAL ESTATES HOMEOWNERS ASSOCIATION, INC., Appellee.
• Court: Florida District Court of Appeals

103 So.3d 191

19650 NE 18TH AVE. LLC., Presidential Club, LLLP, and The Union Labor Life Insurance Company, Appellants,

v.PRESIDENTIAL ESTATES HOMEOWNERS ASSOCIATION, INC., Appellee.

No. 3D11–2584.

District Court of Appeal of Florida,

Third District.

Sept. 27, 2012.

Coffey Burlington, P.L., and David A. Freedman; Shubin & Bass, P.A., and John K. Shubin, Juan J. Farach and Lucinda A. Hofmann, Miami, for appellants.

Hyman & Mars, LLP, and Michael L. Hyman, Darrin B. Gursky and Jeffrey S. Respler, Miami, for appellee.

Before LAGOA, SALTER and FERNANDEZ, JJ.

FERNANDEZ, J.

19650 NE 18th Ave., LLC., et al. (“19650”) appeal the trial court's entry of partial final summary judgment in which the trial court concluded that 19650 has no residential developmental rights to 104 acres of property because the deed of sale did not specify the number of units it could build on the property conveyed to it. We reverse because the trial court improperly interpreted a public covenant to identify a remedy that the original parties did not contemplate, a conclusion which is contrary to well-established principles of real property law that favor the free and unrestricted use of real property.

The community known as “Presidential Estates” covers an area of 158 acres in Miami–Dade County. The property at issue consists of 104 acres of the 158–acre subdivision, originally owned and developed by Hasam Realty Corporation. Hasam sought to rezone the original acreage to build a residential development and golf course.

In 1986, Hasam first rezoned the parcel and proposed a Declaration of Restrictive Covenant, or the 1986 County Covenant, with Miami–Dade County. The 1986 County Covenant contains, among other things, a Controlled Densities Provision that limits the total number of residential units, requires subsequent deeds that convey any part of the property to reflect the number of residential units allocated to the parcel being conveyed, and requires that the county be notified of the number of units allocated. The covenant provides, in part:

A. Controlled Densities. Notwithstanding the request for the RU–4M zoning classification, the maximum number of residential units on the Property is hereby established at a total of 850. The densities may vary within the Property,but in no event may the total number of residential units exceed the aforementioned 850 dwelling units. In order to assure proportionate spreading of density, the Owner shall specify in any instrument conveying portions of the Property the number of residential dwelling units allocated to the property being conveyed. The number of dwelling units available to the remaining portions of the Property shall be correspondingly reduced. Prior to sale or transfer of any portion of the Property, the Owner will notify in writing the Director of the Dade County Building and Zoning Department of the property to be transferred, specifying the description for land conveyed and the number of units permitted to be constructed pursuant to such conveyance. Upon the sale or transfer of the portion of the Property, the Owner will send to the Director of the Dade County Building and Zoning Department a copy of the deed conveying such property.

(emphasis added). Furthermore, the covenant provides, in part:

T. Compliance with Conditions. In the event payments required hereunder are not made as promised, or improvements agreed to hereunder are not made as promised, then in addition to any other remedies available, the Dade County Building and Zoning Department is hereby authorized to withhold any further permits, and refuse any inspections or grant any approval on any projects within subject property until such time as this declaration is complied with.

(emphasis added).

Hasam thereafter executed a Supplemental Declaration of Restrictive Covenant, or the 1987 County Covenant. The 1987 County Covenant reduced the density limitation from 850 to 800 dwelling units. It also included other setback restrictions but did not contain a Controlled Densities provision. Several conveyances followed Hasam's rezoning of the 158–acre parcel. Hasam sold the property to Presidential Golf Estates in 1987. Ten years later, Presidential Golf Estates sold the property to Coscan Presidential, Inc., which ultimately developed the property into 173 zero-lot-line homes. Presidential Country Club, Inc., Presidential Golf, L.L.C., and Presidential Club also took title to the property.¹ None of the deeds of sale in this chain of title recited the number of units of density being allocated, nor was the County ever notified of the number of units allocated.

Presidential Club brought a declaratory judgment action against the Association in 2007, seeking a determination of its developmental rights under the County Covenants and the 1997 Declaration.² The Association counter-claimed, after which Presidential Club voluntarily dismissed its complaint. The Association then amended its counter-claim and sought a determination that 19650, the holder, did not have the right to develop the property under the Controlled Densities provision of the 1986 Covenant. ³ In its motion for summaryjudgment on count VI, the Association argued that 19650 could not construct any dwelling units because such rights were neither carved out nor described in the deeds conveying portions of the land, nor did the county receive proper notice. Furthermore, there was no future development contemplated or authorized because the recorded deed did not transfer the right to construct any number of units. The trial court entered partial final summary judgment in favor of the Association on the basis that 19650 had forfeited its development rights.

A trial court's interpretation of a contract is reviewed de novo. See Peach State Roofing, Inc. v. 2224 S. Trail Corp., 3 So.3d 442, 445 (Fla. 2d DCA 2009). The same standard applies to the review of the entry of summary judgment. Id. 19650 argues, and we agree, that the trial court erroneously added a development...