Wood v. Dozier

Decision Date10 January 1985
Docket NumberNo. 63879,63879
Citation10 Fla. L. Weekly 38,464 So.2d 1168
Parties10 Fla. L. Weekly 38 Tom WOOD and Peggy Wood, husband and wife, Petitioners, v. Raymond G. DOZIER, Jr., and Carolyn S. Dozier, husband and wife, Respondents.
CourtFlorida Supreme Court

William L. Gary and Howard E. Adams of Pennington, Wilkinson & Dunlap, Tallahassee, for petitioners.

James B. Fensom of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fensom, Panama City, for respondents.

Hume F. Coleman and Michael L. Rosen of Holland & Knight, Tallahassee, on behalf of Elizabeth B. Fensom; Guy R. Newman and Wenona D. Newman, his wife; R.F. Robertson and Frances M. Robertson, his wife; Charles E. Ragan, Jr.; Donald B. Ramsey and Mrs. E.H. Ramsey, his wife; Edward J. Schwartz and Linda N. Schwartz, his wife; Norbut C. Schweikert and Lillian C. Schweikert, his wife; Mrs. Emmett Scott; W.A. Spruill; and J.M. Warren, Jr., amici curiae.

PER CURIAM.

This cause is before the Court on petition for review of the decision of the district court of appeal, reported as Dozier v. Wood, 431 So.2d 184 (Fla. 1st DCA 1983). Because the district court certified that its decision passed upon questions of great public importance, we have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Unit No. 3, Mexico Beach, a subdivision platted in 1948, was conveyed subject to restrictive covenants including the following:

All lots shown on this plat are restricted to residences. No house may be erected on any lot shown hereon at cost of less than Three Thousand dollars ($3,000.00). Only one (1) building may be erected on each lot, except a garage apartment may be placed on the rear of any lot.

In 1952, the Driftwood Motel, an eight-unit vacation lodge, was built on three lots on the beachfront side of U.S. Highway 98. The petitioners Tom and Peggy Wood purchased the motel in 1975. They added one apartment in 1976 and two in 1978 by building a second story addition. The respondents Raymond and Carolyn Dozier purchased two lots across the highway from the beach in 1976 and 1978 and constructed a building consisting of their residence and a separate apartment. In 1980 the Town of Mexico Beach adopted a zoning ordinance providing: "Wherever the requirements of this ordinance are at variance with the requirements of any other lawfully adopted rules, regulations, ordinances, deed restrictions, or covenants, the most restrictive or that imposing the higher standards, shall govern." Town of Mexico Beach Ordinance No. 96, § 13 (1980).

In 1981, the Woods purchased two lots adjacent to their motel, receiving a warranty deed subject to restrictive covenants of record. In November, 1981, and March, 1982, the Woods applied for and received building permits to construct fourteen rental units on the two lots. The plans apparently called for seven separate buildings with two units each in an arrangement known as "cluster housing." The expansion plans were in keeping with the zoning ordinance which had zoned the two lots commercial, but were not in keeping with the restrictive covenant.

After construction commenced on the additions, the Doziers filed suit to prevent the proposed use on the ground it was in violation of the deed restriction. The trial court entered a temporary injunction on March 25, 1982. The Woods answered on April 23, 1982, alleging as affirmative defenses changes in the character of the neighborhood, acquiescence, estoppel, ambiguity, restraint on alienation, and lack of a time limit on the covenant rendering it unenforceable. The trial judge entered his final order on May 24, 1982. The Court allowed the Woods to build two structures on each lot, more than allowed under the deed restrictions but far fewer than they had proposed. The Court's order was based on evidence that the existing land use had changed since the time of the imposition of the deed restrictions. The Doziers filed an appeal and the Woods cross appealed.

The district court of appeal reversed the trial court's partial invalidation of the deed restriction. The court held that under Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938), a purchaser cannot rely on violations of deed restrictions to support a claim for relief therefrom if the violations occurred prior to his taking title. The court noted that the Avondale rule had been criticized in Acopian v. Haley, 387 So.2d 999 (Fla. 5th DCA 1980), rev. denied, 392 So.2d 1375 (Fla.1981) and Carlson v. Kantor, 391 So.2d 342 (Fla. 4th DCA 1980). The district court, upon denying the Woods's motion for rehearing, certified the following questions as being of great public importance:

I. Whether the principle of law announced in Allen v. Avondale Company, 135 Fla. 6, 185 So. 137 (Fla.1938), holding that where the owner of property who seeks relief from the enforcement of restrictive covenants shall be denied the relief sought when he is on notice that all material changes in the neighborhood occurred prior to his purchase of the property, [sic] shall have continuing vitality?

II. If Question I is answered in the negative, whether the decisive issue is, as suggested in Acopian v. Haley, 387 So.2d 999 (Fla. 5th DCA 1980), whether the intent of the original grantors, in restricting the use of the land has been frustrated by subsequent changes regardless of when such changes occurred?

We answer the first question in the affirmative and therefore need not reach the second question.

In Allen v. Avondale Co., appellant purchased a lot subject to a restrictive covenant prohibiting the use of any land in the subdivision for any purpose other than residential. Despite the restrictive covenant the properties on three sides of appellant's lot were being used for commercial purposes. Appellant brought a suit to cancel and remove the restrictions on the ground that the neighborhood had completely changed. The suit was dismissed and this court affirmed, stating:

This Court has repeatedly held that change in the circumstances and the neighborhood materially affecting the lands will warrant the granting of relief from restrictive covenants such as are here brought in question. [Citations omitted.]

The Chancellor evidently took the position that notwithstanding the expiration of the effective period of the covenants January 1, 1940, Appellant was not entitled to the relief sought because the changes relied on had taken place before he acquired his title and all of them except the use of the residence on the adjoining lot as a florist shop, were in another subdivision though said subdivision was just across the street on the south and west of Appellant's lot.

As against the holding of the Chancellor, we cannot say that error was committed. The changes shown to have taken place would ordinarily be sufficient to grant relief from enforcing the covenants but it is shown that all these changes took place before Appellant purchased his lot; he was therefore on notice of them and all but one were in another subdivision. At the...

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9 cases
  • C & A Invs. v. Jiangson Duke, LLC
    • United States
    • Nevada Supreme Court
    • October 11, 2022
    ... ... the Plaza and C & A knew of the restrictions when it ... entered into the REOA. See Wood v. Dozier, 464 So.2d ... 1168, 1170 (Fla. 1985) (holding that even if changed ... conditions "would ordinarily be sufficient to grant ... ...
  • Chick-Fil-a, Inc. v. Cft Development, LLC
    • United States
    • U.S. District Court — Middle District of Florida
    • September 3, 2009
    ...purchasers of property to control the development and use of property and to protect property owners' interest in land. Wood v. Dozier, 464 So.2d 1168, 1170 (Fla.1985). Therefore a permanent injunction in favor of Chick-fil-A would not be contrary to the public 71. Chick-fil-A's claim for p......
  • Lancaster v. Banks
    • United States
    • Florida District Court of Appeals
    • August 7, 1986
    ...both before and after the Bankses' purchase, and that the property was "virtually worthless for the restricted use." In Wood v. Dozier, 464 So.2d 1168 (Fla.1985), the Florida Supreme Court reaffirmed the principle it had recognized in Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938), t......
  • Planned Parenthood of Greater Orlando v. MMB Props.
    • United States
    • Florida District Court of Appeals
    • May 22, 2015
    ...allowed by a restrictive covenant, he should seek to have the deed restriction removed before purchasing the property.” Wood v. Dozier, 464 So.2d 1168, 1170 (Fla.1985). Similarly, Planned Parenthood argues that no evidence supported the trial court's finding that an injunction would serve t......
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