Espirito Santo Bank of Florida v. Green Hills Southland Pines Community Ass'n, Inc.

• Decision Date: 17 July 1990
• Docket Number: No. 89-1637,89-1637
• Citation: 565 So.2d 756
• Parties: 15 Fla. L. Weekly D1849 ESPIRITO SANTO BANK OF FLORIDA, Appellant, v. GREEN HILLS/SOUTHLAND PINES COMMUNITY ASSOCIATION, INC., and Robert F. Cook, as the Building Official and Director of the Building and Zoning Department of Metropolitan Dade County, Florida, a political subdivision of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 756

565 So.2d 756

15 Fla. L. Weekly D1849

ESPIRITO SANTO BANK OF FLORIDA, Appellant, v. GREEN HILLS/SOUTHLAND PINES COMMUNITY ASSOCIATION, INC., and Robert F. Cook, as the Building Official and Director of the Building and Zoning Department of Metropolitan Dade County, Florida, a political subdivision of the State of Florida, Appellees.

No. 89-1637.

District Court of Appeal of Florida Third District.

July 17, 1990.

Rehearing Denied Sept. 6, 1990.

Wallace, Engels, Pertnoy, Solowsky, Newman & Allen and Marianne A. Vos and Dana Corbo, Miami, for appellant.

Robert A. Ginsburg, Co. Atty. and Joni Armstrong Coffey, Miami, Harold A. Greene, Fort Lauderdale, for appellees.

Before HUBBART, FERGUSON and JORGENSON, JJ.

FERGUSON, Judge.

On April 17, 1972, Dade County entered into a Consent Judgment with developers and residents in a South Dade community which approved a restrictive covenant on a certain parcel of land. The circuit court reserved jurisdiction in the 1972 judgment solely for the purpose of enforcement.

Over fifteen years later, the appellants initiated this attack on the Consent Judgment by a petition for leave to intervene. By an order of September 22, 1987, the trial court granted leave to intervene on condition that appellants serve notice of hearings "to all property owners within a 1500-foot radius of the four corners of the [subject] property."

The petition to intervene alleges that (1) the covenant is racially discriminatory and therefore in contravention of public policy, and (2) the covenant and its terms are unenforceable against the appellant, a successor owner of the land, because the agreement was not recorded with the muniments of title in the Public Records. ¹

The challenged paragraph of the Consent Judgment is paragraph 8C which provides:

In no event will the building, construction and development of the northerly 12 plus or minus acres of land of which the described premises are a contiguous part be federally-subsidized rental housing, but the same shall only be built, constructed and developed with private financing or government financing other than federally subsidized rental or interest subsidy housing, and as developed and sold or rented shall not be low-rent subsidized or interest subsidized housing as those terms are generally used by state and federal government agencies and persons engaged in the business of land development and residential construction; provided, however, nothing herein shall be deemed to in any way disturb and the parties agree that the present southerly 13.17 plus or minus acres of the premises herein described have and retain their present status of F.H.A. Mortgage Commitment and Rent Subsidies, but the northerly portion of said premises shall never be so qualified.

It is legally significant that the final clause in the covenant acknowledges that over half the parcel is already set aside for subsidized housing.

This case comes to us, essentially, on the pleadings; there was no formal evidentiary hearing. The appellants contend that the face of paragraph 8C shows an intent to preclude racial minorities and low income families from leasing, renting or buying property on parcel B in violation of 42 U.S.C. sections 1981, 1982 and 1983, the Civil Rights Act, and in violation of Florida law, specifically, chapter 420, the Florida Housing Act of 1972, and sections 760.21-760.50,...