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declaratory judgment

Considerations when Enforcing or Challenging Restrictive Covenant

Posted by David Adelstein on September 08, 2019
Trial Perspectives / Comments Off on 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 dadelstein@gmail.com 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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Actions for Declaratory Relief / Declaratory Judgment

Posted by David Adelstein on August 24, 2016
Trial Perspectives / Comments Off on Actions for Declaratory Relief / Declaratory Judgment

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Sometimes a party pursues what is known as an action for declaratory relief or declaratory judgment– for a trial court to declare their rights with respect to the application of a written document or instrument. In this manner, Florida Statute s. 86.021 states:

Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

It has long been held that with respect to actions for declaratory relief:

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

Ahearn v. Mayo Clinic, 180 So.3d 165, 174 (Fla. 1st DCA 2015) quoting May v. Holley, 59 So.2d 636, 639 (Fla. 1952) (courts are not going to entertain hypothetical facts or facts that are contingent in nature to address the possibility of a legal injury).

Courts, however, are not going to render an advisory opinion about a future possibility of a legal injury because this means there is NOT a present injury at the time the declaration is being sought. See Apthorp v. Detzner, 162 So.3d 236 (Fla. 1st DCA 2015). Thus, it is imperative that there is a “bona fide, actual, present practical need for the declaration” dealing with the application of an actual fact pattern and these allegations should be included in the lawsuit seeking declaratory relief. See Ahearn, 180 So.3d at 174.

Generally, and subject so some exceptions, actions for declaratory relief must be filed in the trial court that has jurisdiction over that party’s monetary claims. For example, if you are moving for an action for declaratory relief in a civil matter where you are seeking in excess of $15,000 in damages, then the action for declaratory relief must be filed in a circuit court (since a circuit court has subject matter jurisdiction over matters in excess of $15,000). Conversely, if you are moving for an action for declaratory relief in a civil matter where you are seeking damages up to and including $15,000 in damages, then the action for declaratory relief must be filed in county court (since a county court has subject matter jurisdiction over matters up to and including $15,000 in damages).   This jurisdictional requirement is set forth in the following relevant language in Florida Statute s. 86.011:

The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment.

Please contact David Adelstein at dadelstein@gmail.com 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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