final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dale Ross, Judge; L.T. Case No. 13-000536
Matthew P. Leto of Hall, Lamb and Hall, P.A., Miami, for
Geralyn M. Passaro and Angela M. Swenka of Litchfield Cavo,
LLP, Fort Lauderdale, for appellee.
purchased a golf course with a restrictive covenant and now
seeks to cancel the covenant because the golf course has
become unprofitable. Appellant contends there has been a
substantial change in circumstances such that the
covenant's purpose can no longer be carried out and that
the covenant is an unlawful restraint on alienation.
Additionally, appellant argues that the statute of
limitations did not bar its claim. Thus, we are confronted
with the issue of whether a property owner may cancel a
restrictive covenant when that covenant has become
financially onerous. Although we find appellant's claim
not to be time-barred, we conclude that the restrictive
covenant may not be cancelled because it remains beneficial
to the dominant estate holders and does not create an
unlawful restraint on alienation.
Inverrary Golf Course and Clubhouse within the Inverrary
community has been encumbered by a restrictive covenant since
1971. This covenant states as follows:
The [Golf Course] shall henceforth be used solely for
recreational purposes, including all sports as defined
herein, and for the Facilities and amenities appurtenant
thereto, such as clubhouses and recreational, maintenance,
and storage facilities and equipment. For the purposes of
this Declaration, the term "sports" shall be deemed
to include, by way of illustration and not in limitation
thereof, the following: Golf, tennis, horseback riding,
swimming and all such other recreational activities as may be
appropriate and in keeping with the overall development of
Inverrary. . . .
. . . .
Developer agrees that henceforth, when at any time [the Golf
Course] has a roster of Fifteen Hundred (1500) Golf
Memberships . . . it will not at any such time offer, sell,
or admit to golf membership any persons or families not then
bona fide residents of Inverrary.
. . . .
Duration. The foregoing Restrictions shall run with, and be
binding upon, the [Golf Course] as an obligation and charge
against the same, running with the land for the benefit of
the owners of the property . . . for a term of twenty-five
(25) years from the date this Declaration is recorded, after
which time the said restrictions shall be automatically
renewed for successive ten (10) year periods; provided
however that at the expiration of the initial term or any
renewal thereof, the foregoing restrictions may be amended,
modified or terminated by the affirmative vote of the owners
of not less than two-thirds (2/3) of the land area . . . .
covenant is recorded in the Broward County records and is
incorporated into the deeds of the surrounding residential
2006, Victorville West Limited Partnership purchased the golf
course "SUBJECT TO . . . all covenants . . . listed in
the Public Records of Broward County, Florida." Since
purchasing the golf course, membership, particularly among
Inverrary residents, has ...