NATHAN H. GARVIN AND EVA GARVIN, APPELLANTS/CROSS-APPELLEES,
v.
VIRGINIA SQUIERS, APPELLEE/CROSS-APPELLANT
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The Garvins sought to enforce a restrictive covenant in their subdivision's Declaration of Restrictions prohibiting chain-link fences from the front lot lines. The trial court found the violation but denied the Garvins attorney's fees and costs. The appellate court affirmed the violation finding but reversed the fee denial, holding that a prevailing party enforcing such restrictions is entitled to attorney's fees when the covenant provides for them.
The prevailing party in an action to enforce restrictive covenants is entitled to recover attorney's fees and costs when the covenant provides for such recovery, and the trial court lacked discretion to decline granting such fees. The Garvins, as the prevailing party, are entitled to a reasonable award of attorney's fees and costs.
[1] A homeowner in a subdivision is bound by the provisions contained in a declaration of restrictions.
[2] A homeowner who successfully enforces restrictions contained in a declaration of restrictions is entitled to an award of attorney's fees if the declaration provides for s…
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Join FLexlaw to unlock all legal intelligence“Enforcement shall be by action at law or in equity against any person or persons violating or attempting to violate any covenants, either to restrain violation or to recover damages. The party bringing the action or suit shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the court may adjudge to be reasonable for the services of his attorney.”
The Declaration's provision requiring attorney's fees for the prevailing party in enforcement actions, which the court interpreted as mandatory.
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Join FLexlaw to unlock all legal intelligenceThe Garvins and Squiers own adjoining lots in a Manatee County residential subdivision governed by a Declaration of Restrictions. The Declaration proh…
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FRANK, Judge.
The parties to this action own adjoining lots in a residential subdivision in Manatee County, Florida. The Declaration of Restrictions governing the subdivision includes a provision prohibiting a homeowner from maintaining a chain-link fence unless it extends only from the side of the house and along the rear but not from the front lot lines.
The Garvins’ neighbor, Mrs. Squiers, maintained a chain-link fence from the front to the rear of her property in contravention of the proviso. The Garvins sought to enforce the restriction. The trial court determined that Mrs. Squiers’ fence did in fact violate the Declaration. It concluded, however, that the parties would bear their respective costs and attorney’s fees resulting from the litigation for the reason that at an earlier time in the action an injunction was issued barring the Gar-vins from trespassing on Squiers’ property and requiring that they restore a segment of her fence they had destroyed.
The Garvins’ appeal from that aspect of the final judgment denying them their attorney’s fee and costs. Mrs. Squiers cross appeals from that portion of the final judgment which forbids her from maintaining a chain-link fence.
A review of the record reveals that the trial court properly concluded that Mrs. Squiers’ fence existed in violation of the Declaration. We affirm the final judgment to the extent it enforces the Declaration.
We reverse the final judgment, however, requiring the parties to bear their separate costs of the action. The Declaration governs the award of attorney’s fees:
Enforcement shall be by action at law or in equity against any person or persons violating or attempting to violate any covenants, either to restrain violation or to recover damages. The party bringing the action or suit shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the court may adjudge to be reasonable for the services of his attorney.
We agree with the first district’s determination in Powell v. Shumann Investments, Inc., 492 So. 2d 850 (Fla. 1st DCA 1986), and hold that a buyer in a subdivision is bound by the provisions contained in a declaration of restrictions. Moreover, a homeowner successfully enforcing such restrictions is entitled to an award of attorney’s fees when such an award is provided in a covenant of the present kind. Hence, the trial court lacked discretion to decline granting the consensually contemplated fees and costs. Brickell Bay Club Condominium Association, Inc. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981), rev. denied, 408 So. 2d 1092 (Fla.1981). The Garvins were the prevailing party. See Daniels v. Arthur Johannessen, Inc., 496 So. 2d 914 (Fla. 2d DCA 1986).
Accordingly, the final judgment is reversed in part and remanded to the trial court for the determination of a reasonable award of fees and costs to the Garvins.
SCHOONOVER, A.C.J., and HALL, J., concur.
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Parton v. Palomino Lakes Prop. Owners Ass'n, Inc., 928 So. 2d 449 (Fla. 2d DCA 2006)…ed after the entry of the temporary injunction. We agree. A trial court lacks discretion to refuse to award reasonable attorneys’ fees to the prevailing party when the deed restrictions contain a provision for attorneys’ fees. See Garvin v. Squiers, 502 So. 2d 47, 48 (Fla. 2d DCA 1987). The fee provision at issue in Gar-vin stated that the restrictive covenants could be enforced by an action to restrain the violation or to recover damages and that “[t]he party bringing the action or suit shall be entitled to…
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Lakewood ON THE Green Villas Ass'n, Inc. v. Pomerantz, 556 So. 2d 505 (Fla. 4th DCA 1990)…omitted). For that proposition of law, this court cited Brickell Bay Club Condominium Association, Inc. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981). See also Campbell v. A.B. Taff & Sons, Inc., 519 So. 2d 1039 (Fla. 1st DCA 1988); Garvin v. Squiers, 502 So. 2d 47 (Fla. 2d DCA 1987); Powell v. Shumann Investments, Inc., 492 So. 2d 850 (Fla. 1st DCA 1986). Appellee contends the trial court acted within its equitable jurisdiction in denying appellant attorney’s fees and proposes to distinguish the array of cas…1 / 2
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Ass'n OF Poinciana Villages, Inc. v. Hollis Moore, 630 So. 2d 229 (Fla. 2d DCA 1994)…division. The appellant seeks review of only that part of the final judgment denying its attorney’s fee. We reverse. The deed restrictions contain a mandatory provision for attorneys’ fees identical to the provision construed in Garvin v. Squiers, 502 So. 2d 47 (Fla. 2d DCA 1987). As in Garvin, the trial court lacked the discretion to decline to award the appellant, as the prevailing party, a reasonable attorney’s fee. Accordingly, that part of the final judgment denying fees is reversed and the case is re…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brickell BAY Club Condo. Ass'n, Inc. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981)
- Thomas and Virginia Daniels v. Arthur Johannessen, Inc., 496 So. 2d 914 (Fla. 2d DCA 1986)
- Powell v. Shumann Invs., Inc., 492 So. 2d 850 (Fla. 1st DCA 1986)