564 So. 2d 247 | Fla. Dist. Ct. App. | 1990
Siering appeals a final judgment that denied homeowners in the 0 Bar Ranchettes subdivision the right to enforce a restrictive covenant
The Bronsons’ predecessors in title (parents of appellee Murray Bronson) purchased the 60 northern-most feet of Lot 9 (the Property) in 0 Bar Ranchettes. The Property is located directly across from a 60-foot road, but is not platted as an extension of that road. For approximately twenty years, the Bronsons used the Property as access to 120 adjoining acres, also owned by them, which harbored a cattle-ranching operation.
They then sought to sell the adjoining acreage and the Property to a third party, who proposed the development of a 149-unit residential subdivision. A road was to be constructed over the Property as the sole access to the new subdivision. Witnesses estimated that 1,500
The trial judge found that the homeowners had waived and abandoned their right to enforce the residential only use restriction
A long-continued waiver or acquiescence in the violation of a restrictive covenant may forfeit one’s right to enforce it, depending upon the facts shown to exist. Stephel v. Moore, 94 Fla. 313, 114 So. 455 (1927). However, acquiescence in a limited use which violates a restrictive covenant cannot be unilaterally expanded to include other offensive violations. Coffman v. James, 177 So.2d 25 (Fla. 1st DCA 1965). Other jurisdictions have reached similar results. For example, in Gordon v. Incorporated Village of Lawrence, 84 A.D.2d 558, 443 N.Y.S.2d 415, 416 (N.Y.App.Div.2d 1981), affirmed, 56 N.Y.2d 1003, 453 N.Y. S.2d 683, 439 N.E.2d 398 (N.Y.1982), the court held one may ignore inoffensive violations of a restriction without forfeiting one’s right to restrain offensive violations. There must be conscious acquiescence in persistent, obvious and widespread violations for waiver or abandonment to occur. See Lake St. Louis Community Ass’n v. Kamper, 503 S.W.2d 447 (Mo.App.1973). It occurs only where there is an intent to tolerate the specific use. 5 Powell, The Law of Real Property, 679[1] (1990); V Restatement of Property § 561 at 3307 (1944).
By this court’s decision, the Bron-sons are not denied access to their acreage.
REVERSED.
. The subdivision plat and a Notice of Restrictions and Reservations were filed in Osceola County on December 21, 1967, prior to the purchase of the Property by the Bronsons’ predecessors in title.
. There was testimony that 1,500 auto trips per day would occur. The exact number, however, is irrelevant since the number of trips would necessarily far exceed the approximate twice daily trips of the Bronsons to feed the cattle.
.Use of a lot as a connecting street is neither a residential use nor incidental to such use. Thompson v. Squibb, 183 So.2d 30 (Fla. 2d DCA 1966).
. Nor is this a diminished value situation as the Property may continue to be utilized as it has been in the past. Thus, the value of the Property remains unchanged.