Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Ass'n

• Citation: 245 So.2d 609
• Decision Date: 17 February 1971
• Docket Number: No. 38967,38967
• Parties: SILVER BLUE LAKE APARTMENTS, INC., a Florida corporation, John Leisenring, Harold M. Diamond and Bernard Sandel, petitioners, v. SILVER BLUE LAKE HOME OWNERS ASSOCIATION, Inc., a corporation not for profit existing under the laws of the State of Florida, William M. DeLisa and Harris J. Buchbinder, Respondents.
• Court: United States State Supreme Court of Florida

Page 609

245 So.2d 609

SILVER BLUE LAKE APARTMENTS, INC., a Florida corporation, John Leisenring, Harold M. Diamond and Bernard Sandel, petitioners, v. SILVER BLUE LAKE HOME OWNERS ASSOCIATION, Inc., a corporation not for profit existing under the laws of the State of Florida, William M. DeLisa and Harris J. Buchbinder, Respondents.

No. 38967.

Supreme Court of Florida.

Feb. 17, 1971.

Rehearing Denied April 5, 1971.

Mallory H. Horton, of Horton & Schwartz, Miami, and Kastenbaum, Mamber, Gopman, Epstein & Miles, Miami Beach, for petitioners.

Thomas H. Anderson and Karl Vance Hart, of Shutts & Bowen and Kimbell & Bailey, Miami, for respondents.

ROBERTS, Chief Justice.

This cause is before the court on petition for certiorari to review the decisions of the District Court of Appeal, Third District, in Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Association, Inc., Fla.App.1969, 225 So.2d 557, certified to this court by the appellate court as one passing on a question of great public interest. We have accepted jurisdiction as authorized by Section 4, Article V, Florida Constitution.

The facts are stated in the opinion of the appellate court and need not be repeated herein detail. Basically, the suit was concerned with the right of apartment-house tenants of the petitioner Apartments, Inc., one of the defendants below, to use a small man-made lake covering land now owned by the respondent Association, one of the plaintiffs below. The plaintiff is a non-profit corporation whose membership consists of owners of homes on the perimeter of the lake. It has adopted rules of safety for the use of the lake by boaters and others and polices the lake to enforce safety standards and to restrict its use to authorized persons.

The tract of land now covered by the lake and the tract now owned by the defendant Apartments, Inc., were formerly owned by one Benjamin Freeman in association with others. Some seven or eight years ago the water bottom was conveyed to the plaintiff Association in return for its home-owner members agreeing not to resist--as they had successfully done before--Freeman's application for a rezoning from residential to commercial of a pie-shaped tract owned by him, a small portion of which abutted the lake. The deed contained a clause restricting the use of the lake to members of the Association. Four years later Freeman sold the pie-shaped tract to Apartments, Inc., together with the few feet of water bottom that he had reserved in the deed of the water bottom to the Association. The deed recited that it was subject to restrictions of record but omitted the restrictive clause contained in the waterbottom deed. At the time of the instant suit, there were some 218 apartment units in service and some 81 under construction. The tract will accommodate even more apartment units. The use of the lake--or misuse, as found by the Chancellor--by the apartment house tenants resulted in the subject litigation.

The Chancellor found that the use of the lake by the apartment tenants unreasonably interfered with the rights of the other proprietors and should be enjoined under the rule of Duval v. Thomas, Fla.1959, 114 So.2d 791. The appellate court agreed. However, the Chancellor rested his decree on an additional ground:--He found that the officers of Apartments, Inc. had actual knowledge of the clause restricting the use of the lake, referred to above, before purchasing the property from Freeman and had even applied for membership in the Association. He concluded that it would be inequitable, now that the apartment owners had reaped the benefit of the rezoning pursuant to the home owners' agreement with Freeman, to allow them to disavow the restrictive clause. On appeal, the decree was affirmed, but without discussion of the principle of law respecting such restrictive agreements.

In support of their petition here, it is contended on behalf of the petitioner-defendant Apartments, Inc. that it has an 'inalienable right' to the use of 'all its properties by all of its tenants' and that to deny it that right is to deny it the equal protection of the law. It is also contended that, since it was a stranger to the deed containing the restrictive clause referred to above, it cannot be bound thereby, even though it might have had actual notice as found by the Chancellor. Its position is stated as follows:--'The face that the corporate petitioners' predecessor in title reaped some benefit from the conveyances to the corporate respondent by negating the objections of owners on the lake to a rezoning of its property is of no concern or benefit to the petitioners.' Such an attitude of callous, almost cynical, indifference might be appropriate in a court of law; but in this case the rights of the parties were submitted to and decided by a court of equity. And the equitable principle applicable here--sometimes referred to as the doctrine of equitable servitude--is recognized in this state as in many other etc., Sec. 26, p. 597, in which it is noted etc., Se. 26, p. 597, in which it is noted that the doctrine of equitable servitude 'has now received wide acceptance in this country although there is no unanimity of opinion among the cases as to whether equity is enforcing the promise as a contract or as an incorporeal property interest in the burdened land; * * *'.

The doctrine apparently originated in the English case of Tulk v. Moxhay (1848) 2 Ph. 774 (41 Eng.Rep. 1143) in which it was said that

'* * * the question does not depend upon whether the covenant runs with the land * * * if there was a mere agreement and no covenant, this court would enforce it against the party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.'

The rule is simply stated in Langenback v. Mays (Ga.1950) 207 Ga. 156, 60 S.E.2d 240, as follows:--

'Equity will enforce a lawful restrictive agreement concerning land against a person who takes with notice of the contract. In such a case, the person violating the agreement, though not a party to it, is a privy in conscience with the maker.'

The reason for the rule is apparent: 'Obviously, plaintiff has no adequate remedy at law. If equity cannot grant relief, a covenantor need only convey the land to destroy today the covenant he made yesterday.' Sun Oil Company v. Trent Auto Wash, Inc. (1967), 379 Mich, 182, 150 N.W.2d 818.

Whether a restrictive agreement is technically one 'running with the land' is material in equity only on the question of notice, since if it runs with the land it is binding regardless of notice and, if not, the owner is bound only if he takes the land with notice. Appeal of J. C. Grille, Inc., 181 Pa.Super. 456, 124 A.2d 659. The sole test for the running of the burden in equity is the intention of the parties to impose a servitude upon the land as distinguished from a personal promise of the present owner. Thodos v. Shirk (1956) 248 Iowa 172, 79 N.W.2d 733. Other recent cases applying this equitable doctrine are Bouley v. City of Nashua, 1964, 106 N.H. 79, 205 A.2d 34; Murphey v. Gray, 84 Ariz. 299, 327 P.2d 751; Warren v. Protano, Inc., Sup., 155 N.Y.S.2d 686; Baldwinsville Federal Savings & Loan Ass'n. v. Burns Farms, Inc., 8 Misc.2d 127, 165 N.Y.S.2d 650; Wallace v. St. Clair, 1962, 147 W.Va. 377, 127 S.E.2d 742; Coomes v. Aero Theatre & Shopping Center, 1955, 207 Md. 432, 114 A.2d 631, citing 3 Tiffany, Real Property, 3d Ed., Sec. 861.

There can be no doubt that the doctrine of equitable servitude has been accepted and applied by courts in this state. In Osius v. Barton, 1933, 109 Fla. 556, 147 So. 862, 868, the court discussed the two theories upon which such restrictive agreements are enforced: (1) as contracts concerning the land, and (2) as servitudes or easements of land, and said:

'The theory adopted in this state is that the contract which embodies the restriction may be enforced against both the promissor and those taking from him with notice, thereby including amongst those who may enforce the obligation not only the promisee, but those who take from him and those in the neighborhood who may be considered as beneficiaties of the contract.'

And in Vetzel v. Brown, Fla.1956, 86 So.2d 138, we said that

'Such use restrictions have long been enforced by courts of equity against a grantee taking title with notice of the restrictions, without regard to the technicalities of law relating to covenants running with the land.'

Accord: Frumkes v. Boyer, Fla.1958, 101 So.2d 387; Hagan v. Sabal Palms, Inc., Fla.App.1966, 186 So.2d 302; Tolar v. Meyer, Fla.App.1957, 96 So.2d 554; Batman v. Creighton, Fla.App.1958, 101 So.2d 587; Maule Industries v. Sheffield Steel Products Fla.App.1958, 105 So.2d 798; Gercas v. Davis, Fla.App.1966, 188 So.2d 9; City of Miami Beach v. Kline, Fla.App.1966, 189 So.2d 503.

The Chancellor heard the testimony of the parties concerning the circumstances in which the restrictive clause was agreed to by the Association and by the predecessor in title of Apartments, Inc., and concluded that it was the intent and purpose of the conveyance and the restrictive clause to give the defendant Association control over the use of the lake insofar as the lands retained by Freeman were concerned. His finding was stated as follows:--

'To allow APARTMENTS, INC. and its tenants to have unrestricted use of the lake would deprive the ASSOCIATION of its beneficial use of the property in violation of the very intent of the parties at the time of the conveyance (of the water bottom). The position of the parties has now changed. APARTMENTS, INC. has reaped its benefit of the bargain with the home owners. Its land has been rezoned and has been developed accordingly. To allow its tenants the free and unobstructed use of the lake will make it impracticable, if not impossible, for the home owners...