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Considerations when Enforcing or Challenging Restrictive Covenant

A restrictive covenant that runs with the land places restrictions on the use of real property.  As a result, “restrictive covenants must be strictly construed in favor of the free and unrestricted use of real property” and, with respect to any ambiguity in the covenant, “must be construed against the party seeking to enforce it.”   Beach Towing Services, Inc. v. Sunset Land Associates, LLC, 44 Fla.L.Weekly D2195a (Fla. 3d DCA 2019).  These are important things to remember when enforcing or challenging a restrictive covenant.

For instance, in Beach Towing Services, the plaintiff purchased property that was subject to a restrictive covenant of land.  The restrictive covenant provided that the property “will not be used as a parking lot, storage yard facility or for a garage or tow truck company.

The plaintiff wanted to build a parking garage on the property.  The defendant contended that a parking garage was restricted by the restrictive covenant.  The plaintiff filed a lawsuit for a declaratory judgment claiming ambiguities with the restrictive covenant, specifically with the word “garage.”  The parties did not dispute that the term “parking lot” referred to a surface parking lot as opposed to a parking garage.  The plaintiff was looking for a declaration from the court that the restrictive covenant did not restrict its use to build a parking garage on the property.  The appellate court, affirming the trial court, agreed.

Given the intent and meaning of ALL of the words in the restrictive covenant, the plaintiff could not use the property to conduct the business of activities of a garage company or tow truck company.  Beach Towing Services, supra (“The question thus becomes how to construe the words ‘for a garage or tow truck company,’ since the parties agree that the only dispute in this case is whether the word ‘garage’ as used in the Covenant prohibits Plaintiff from construction of a parking garage on the Property. Applying the series-qualifier, the Court must read the term ‘company’ as modifying both the term ‘garage,’ as well as the term, ‘tow truck,’ and the Covenant must therefore be read to mean that the Property cannot be used for either a ‘garage company’ or a ‘tow truck company.’  Indeed, there is no determiner before the words ‘tow truck’ that would indicate that the term ‘company’ modifies only ‘tow truck’ and not ‘garage’ (i.e., the Covenant does not say ‘for use as a garage or a tow truck company’).  Moreover, when reading the Covenant’s prohibition on a “garage company” in context, as the Court must do, ‘garage company’ is clearly associated with ‘tow truck company.’”) (internal citations omitted).  But, here, the plaintiff was not looking to engage in the business activities of a garage company or tow truck company.  Thus, nothing restricted the use of the property as a parking garage.


Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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