Wahrendorff v. Moore

• Decision Date: 20 March 1957
• Citation: 93 So.2d 720
• Parties: Walter WAHRENDORFF et al., Appellants, v. Leo H. MOORE et al., Appellees.
• Court: Florida Supreme Court

Page 720

93 So.2d 720

Walter WAHRENDORFF et al., Appellants, v. Leo H. MOORE et al., Appellees.

Supreme Court of Florida, En Banc.

March 20, 1957.

Rehearing Denied May 2, 1957.

Ward & Ward, Miami, for appellants.

Von Arx, Von Arx & Hope, Miami, for appellees.

THORNAL, Justice.

Appellants Wahrendorff, who were plaintiffs below, seek reversal of a final decree dismissing their complaint in equity praying for the cancellation of certain restrictions on the use of a parcel of land.

The determining points are whether the restrictions actually existed and if so, whether the proofs were adequate to justify cancelling the same.

In 1938 a plat of Flagler Groves Estates was recorded in Dade County. On the face of the plat under a heading reading 'Restrictive Covenants' appeared in part the following:

'1. The official County Zoning Regulations for the area shall be observed.

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'4. There shall be no more than a single residence on each lot which shall be used for residential purposes only and shall be used and limited to the use of single family and the dependents and guests thereof. This section shall not apply to Lots 1 to 7, inc., Block 2 of attached plat.'

The plat showed that the restrictions were approved by the Dade County Zoning Director and the subdividers of the subdivision. On Lots 1 to 7, inclusive, Block 2, described as an exception to the restriction, was located the well known Rare Bird Farm. Appellants owned Lot 8, Block 2, located immediately south of the Bird Farm and facing U. S. Highway No. 1. The highway existed when the subdivision was platted although it was then a two-lane road as contrasted to the heavily traveled fourlane highway now existing.

Appellants alleged in their complaint that over the years conditions had so changed that the restrictions had become an unjustifiable burden on the use of their lot. In the meantime, the County Zoning Board has zoned the lot for business uses. To support the alleged changed conditions appellants cite the general development in the area, the tremendously increased traffic on U. S. Highway 1 and the fact that a motel has been constructed in violation of the restrictions in Block 1 of the subdivision. Block 1 is north of the Bird Farm and the motel is in the northwest corner of the Block.

Appellees responded with the allegations that the covenants appearing on the plat restricting the use of the property for residential purposes were for the benefit of all purchasers of lots in the subdivision. They assert that they have constructed expensive residences on their lots in reliance on the restrictions. They, of course, allege that conditions have not sufficiently changed to justify equitable interference with their contended contractual rights under the circumstances.

The Chancellor heard all of the testimony and in the ultimate agreed with the appellees who were among the defendants. The final decree dismissing the complaint was entered. Reversal of this decree is now sought.

On appeal the appellants contend that the so-called restrictive covenants appearing on the face of the plat were not included in each of the deeds. It is their position that these covenants as a matter of law never became effective and should not now be enforced. In addition they contend that the changed conditions in the area justify the cancellation of the restrictions as to their lot if it should be concluded that the restrictions were once effective.

On the other hand the appellees contend that the restrictions were binding and that there has not been a sufficient showing to justify cancelling them.

On the basic point as to whether the restrictions came into being upon the recording of the plat and the subsequent sale of lots according to the plat, we agree with the Chancellor. The record here reveals that each deed subsequent to the plat referred thereto and in substance recited that the property was 'subject to restrictions of record'. The restrictions were not repeated verbatim. Although strangely enough the authorities on the subject are sparse, we are of the view that a deed and a plat which includes the property granted must be read together and whatever properly appears on the plat should be considered a part of the deed. Conditions, reservations and restrictions shown on the face of the recorded plat are notice to subsequent purchasers who accept conveyances based on the plat. 14 Am.Jur., Covenants, Conditions and Restrictions, Sec. 203, p. 615. Although we have never passed upon the point directly, we have in a number of cases construed deeds of conveyance in the light of provisions or reservations shown on the recorded plat of the subdivision involved. Hall v. Snavely, 93 Fla. 664, 112 So. 551; McCorquodale v. Keyton, Fla.1953, 63 So.2d 906; Burnham v. Davis Islands, Inc., Fla.1956, 87 So.2d 97.

It is true, as contended by appellants, that the law favors the free use of real estate and restrictions on usage will customarily be strictly construed. Mevertheless, such restrictive covenants are valid and will be recognized and enforced when established by contract between the parties involved. In a case such as this the mere filing of the plat containing the restrictive covenants does not in and of itself subject the land to the restrictions of the covenants so long as the title to the property remains in the subdivider. However, upon a severance of title by the grant of one or more lots according to the plat and by reference thereto, the restriction then springs into existence and becomes binding as between the subdivider and his purchasers and as between the purchasers inter sese.

We therefore conclude, as did the Chancellor, that the lots involved in this subdivision were subject to the restrictive covenants shown on the face of the plat.

We come to the second point as to whether there was an adequate showing of changed conditions that would justify cancelling these contractual restrictive covenants. In Dade County v. Thompson, 146 Fla. 66, 200 So. 212, we held in substance that to justify the removal of restrictive covenants such as those before us, it must be alleged and proved that conditions and circumstances existing at the time the restrictions were placed on the land have changed to the extent that the effect of the covenants has been brought to nought. We there stated that the test to be applied is whether or not the original intent of the parties to the restrictive covenants can be reasonably carried out or whether the changed conditions are such as to make ineffective the original purpose of the restrictions. See also, Allen v. Avondale Co., 135 Fla. 6, 185 So. 137; 8 Fla.Jur., Covenants and Restrictions, Sec. 40.

In Dade County v. Thompson, supra, we further pointed out that each case in which cancellation of such restrictions in sought must stand or fall on the equities presented and the evidence offered to support the position of the parties. In the instant case the principal evidence of substantial changes tendered by the appellants was the widening of U. S. Highway No. 1, the substantial increase in the flow of traffic and the single violation of the restrictions in another block in the subdivision. Appellants also showed that the County Zoning Board had rezoned the particular lot in question for business uses. As to the effect of the rezoning in cases such as this, we are of the view that such action by an official body is admissible in evidence but it is not conclusive. In and of itself it will not shift the burden of proof to the opposite party. It is merely a fact to be considered along with all of the other evidence pointing to the same...