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Ballinger v. Smith

Supreme Court of Florida, En Banc

October 16, 1951

BALLINGER et ux.
v.
SMITH.

J. Kenneth Ballinger, Tallahassee, for appellants.

Will J. Oven, Tallahassee, for appellee.

ROBERTS, Justice.

In a suit in the court below to determine the rights of the parties under a contract for the purchase and sale of a certain lot in Betton Hill Subdivision of Tallahassee, Florida, the court interpreted the following building restriction, to wit: 'No residential lot shall be resubdivided into building lots other than those shown on the recorded plat heretofore referred to, nor shall any building be erected on any residential building lot other than shown on said recorded plat' as preventing a person from building a residence in the subdivision unless he owned at least one entire lot according to the plat referred to; and, in the opinion of the writer, the only question properly before this court is whether the lower court erred in such interpretation.

The building restrictions applicable to the subdivision also provide that 'No building shall be erected on any lot in said subdivision unless the design and location of such building have been approved in writing by a Committee appointed by the Grantors hereinabove named, their heirs and assigns, or by a majority of the owners of lots in said subdivision * * *.'

The law favors the free and untrammeled use of real property. Restrictions in coveyances on the fee are regarded unfavorably and are, therefore, strictly construed; but when the intention is clear the courts will enforce such restrictions, if nor unreasonable. Moore v. Stevens, 90 Fla. 879, 106 So. 901, 43 A.L.R. 1127; Heisler v. Marceau, 95 Fla. 135, 116 So. 447.

The restrictive covenants here clearly manifest the fact that it was the intention of the subdividers, as a general overall plan for the harmonious development of the subdivision as an attractive residential area, to allocate to each residence to be built in the subdivision at least one entire lot, as platted by them, and to require the prospective builder to obtain the approval of the building committee as to

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the location on such lot of his proposed residence, before proceeding with construction.

The parties did not raise the question of the reasonableness of the restrictions, either as to the subdivision as a whole, or as to their application to the appellants' specific property; and we do not here determine whether the enforcement thereof in connection with such specific property would be without substantial value in carrying out the general plan of the subdividers, or for any other reason inequitable. See Rogers v. Zwolak, 12 Del. ch. 200, 110 A. 674; Trustees of Columbia College v. Thacher, 87 N.Y. 311, 317, 41 Am.Rep. 365, 367; Union Trust & Realty Co. v. Best, 160 Cal. 263, 116 P. 737; Thompson on Real Property, Perm.Ed., Vol. 7, Sections 3640, 3647, and 3662.

The appellants having failed to show that the lower court erred in its interpretation of the restrictions, the final decree should be affirmed, without prejudice to the right of the appellants to litigate the question of the ...


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