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Victorville West Limited Partnership v. The Inverrary Association, Inc.

Florida Court of Appeals, Fourth District

August 23, 2017

VICTORVILLE WEST LIMITED PARTNERSHIP, Appellant,
v.
THE INVERRARY ASSOCIATION, INC., a Florida Non-Profit Corporation, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge; L.T. Case No. 13-000536 (08).

          Matthew P. Leto of Hall, Lamb and Hall, P.A., Miami, for appellant.

          Geralyn M. Passaro and Angela M. Swenka of Litchfield Cavo, LLP, Fort Lauderdale, for appellee.

          Levine, J.

         Appellant 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.

         The 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 . . . .

         This covenant is recorded in the Broward County records and is incorporated into the deeds of the surrounding residential properties.

         In 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 ...


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