276 So.3d 109
Fla. Dist. Ct. App.2019Background
- In 2007 U.S. Home conveyed a newly built Lee County house to the Kennisons by a recorded special warranty deed that (1) was signed by the grantor only, (2) contained a mandatory mediation/FAA arbitration clause, and (3) declared all covenants to be equitable servitudes that run with the land.
- The Kennisons took title and possession without signing the deed; the statute and Florida practice require only the grantor’s signature and witnesses.
- In 2010 Shane and Laura Hayslip purchased the house from the Kennisons; their 2010 warranty deed referenced existing easements/restrictions of record but did not restate an arbitration clause.
- In 2017 the Hayslips sued U.S. Home under Fla. Stat. § 553.84 alleging defective stucco; U.S. Home moved to stay and compel arbitration based on the original special warranty deed.
- The trial court (via general magistrate) found the arbitration clause to be a covenant running with the land, binding on subsequent purchasers with notice, and ordered stay/compel arbitration; the Second District affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a valid written arbitration agreement exists in the original special warranty deed | Hayslip: deed is invalid as an arbitration agreement because the original grantees (Kennisons) did not sign it, so no mutual intent | U.S. Home: signature by grantor and recording—plus the Kennisons’ acceptance/possession—demonstrates intent and validity; statutes do not require grantee signature | Valid: the deed created an enforceable arbitration agreement; parties’ conduct and Florida practice support enforceability |
| Whether the arbitration provision is a covenant running with the land (binding on subsequent purchasers) | Hayslip: arbitration clause is a personal covenant that does not "touch and concern" the land and thus does not bind successors | U.S. Home: clause governs the method to resolve disputes about the property and therefore affects occupation/enjoyment; recorded notice binds successors | Valid covenant running with the land: clause touches and concerns the property and is binding on subsequent purchasers with notice |
Key Cases Cited
- Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999) (three-part test for arbitrability: valid written agreement, arbitrable issue, no waiver)
- Santos v. Gen. Dynamics Aviation Servs. Corp., 984 So. 2d 658 (Fla. 4th DCA 2008) (party conduct may demonstrate assent to arbitration even without signature)
- Bessemer v. Gersten, 381 So. 2d 1344 (Fla. 1980) (acceptance of a deed and possession binds grantee to deed conditions; grantee need not sign deed)
- Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So. 2d 261 (Fla. 4th DCA 2007) (restrictive covenants that affect mode of enjoyment of premises touch and concern the land)
- Hagan v. Sabal Palms, Inc., 186 So. 2d 302 (Fla. 2d DCA 1966) (test for whether a covenant runs with the land: relation to the land and occupation/enjoyment)
- Caulk v. Orange County, 661 So. 2d 932 (Fla. 5th DCA 1995) (contrasting example where a covenant concerned only proceeds of condemnation and did not touch the land)