Monday, October 04, 2004

The covenent can be mightier than the LDR

In this case, released in late August, the 2d DCA reminds us that covenants restricting use are enforceable as long as they benefit the rest of the properties, even if conditions change.

Citing an earlier case, the court provided this standard for when a property can be relieved of the burdens of a covenant:

in Essenson v. Polo Club Associates, 688 So. 2d 981, 984 (Fla. 2d DCA
1997), this court held that the party seeking to be relieved of the deed restriction
hadfailed to carry its burden of proof by showing that "the change occurred,
(1) after theagreement, (2) without any fault on its part, and (3) that the
change destroyed all valueof the covenant," in spite of the fact that the
plaintiff demonstrated changed circumstances resulting from a rezoning
affecting its property.
The court found that even though the property in question here fronted a major street and had been rezoned to support the medical office desired by the new owner, the covenant still had benefits for the other owners in the subdivision.

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