Value of Restrictive Covenant when Moving for Permanent Injunction

A recent case demonstrates the value of a restrictive covenant. In The Residences at the Bath Club Condominium Association, Inc. v. Bath Club Entertainment, LLC, 48 Fla.L.Weekly D221a (Fla. 3d DCA), the parties entered into a settlement agreement and a proceeding relative to the breach and enforcement of the settlement occurred. The trial court entered an order enforcing the settlement agreement based on a specific paragraph in the agreement. Ultimately, the facts, for purposes of this posting, are not as significant as the appellate court’s discussion in obtaining a permanent injunction when dealing with a restrictive covenant. In particular, when...

31 December

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Recording Documents in Public Records to put Others on Constructive Notice

Posted by David Adelstein

in Trial Perspectives

A primary reason why documents concerning real property are recorded in the public (official) records is so that parties that do not have actual notice have “constructive notice” of the recording. Because the document was recorded in the public records, you reasonably should have known of the recording. To this point, Florida Statute s. 695.01(1) provides in pertinent portion, “No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable...

12 January

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Enforcement of Non-Compete and Non-Solicitation Provision

Posted by David Adelstein

in Trial Perspectives

Non-compete provisions are not always fair. The same can probably be said about non-solicitation provisions. Typically, these provisions (referred to as restrictive covenants) are included in an employment agreement as a condition of employment. But, if there is a legitimate business interest for these provisions, and they are limited in scope, they are enforceable and relief, including injunctive relief, can be sought. Restrictive covenants in employment-related agreements, such as a non-compete and non-solicitation provision, are governed by Florida Statute s. 542.335. A party (e.g., employer) seeking a temporary injunction against another (e.g., employee) must demonstrate four elements: “(1) the likelihood...

08 September

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Considerations when Enforcing or Challenging Restrictive Covenant

Posted by David Adelstein

in Trial Perspectives

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...

04 June

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Restrictive Language in Employment Agreement

Posted by David Adelstein

in Trial Perspectives

Woo-hoo! I got a real good J-O-B! Great pay. Great benefits. Great location. Doing what I want to be doing with my skillset. My new employer wants me to sign an employment agreement, but I have signed such agreements in the past, so this is no big deal. Or, is it a big deal? There are many professions that want certain employees to sign an employment agreement that includes a restrictive covenant, i.e., anti-compete or anti-solicitation language. The employer does not want to train the employee, give the employee access to its trade secret information, customer lists, internal marketing material, pricing...

29 April

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Strict Construction of Restrictive Covenants

Posted by David Adelstein

in Trial Perspectives

Restrictive covenants are to be strictly construed. Restrictive covenants show up in Declarations or Covenants recorded in the public records that restrict a landowner’s (or unit owner's) use to do something with his/her property. Just keep in mind that a restrictive covenant will be strictly construed in favor of the landowner. See Leamer v. White, 156 So.3d 567, 572 (Fla. 1st DCA 2015). Hence, the precise language of the restrictive covenant is important because of the requirement of strict construction. An example of such strict construction can be found in the recent opinion of Santa Monica Beach Property Owners Association, Inc....