KIRK MCKAY, APPELLANT,
v.
RONNIE N. TOWNSON, APPELLEE
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Kirk McKay appealed a summary judgment finding deed restrictions unenforceable. The restrictions, contained in a 1976 deed McKay conveyed to Townson's predecessor, reserved McKay's right to use the lake surface and prohibited uses detrimental to McKay's adjacent property. The court reversed, holding the lake-use restriction was not ambiguous and remanded for further proceedings.
The restriction reserving McKay's right to use the lake surface as it existed at the time of conveyance is not ambiguous and is enforceable; the provision sufficiently evidences the parties' intent and refers to an ascertainable factual matter. To hold the restriction unenforceable would improperly place within Townson's power the means to abolish a substantial benefit McKay reserved.
[1] A deed restriction will be enforced if the parties' intention is sufficiently evidenced, even if covenants restraining property use are strictly construed in favor of the…
[2] A reservation of the right to use the surface of a lake as it existed at the time of conveyance is enforceable if the lake's condition at that time can be factually ascer…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“covenants restraining the free use of property are to be strictly construed in favor of the grantee and ambiguity in restrictions must be resolved against the person claiming enforcement”
Establishes the general rule for interpreting restrictive covenants, though not absolute when parties' intent is clear
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Join FLexlaw to unlock all legal intelligenceOn October 5, 1976, McKay conveyed land containing a man-made lake to Townson's predecessor in interest. The deed reserved McKay's right to use the la…
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SCHEB, Acting Chief Judge.
Kirk McKay challenges a final summary judgment finding certain deed restrictions unenforceable. We reverse.
On October 5, 1976, McKay, appellant here and plaintiff below, conveyed land on which a lake was situated to Ronnie N. Townson’s predecessor in interest. The deed contained the following restrictions:
This conveyance is made subject to a reservation in favor of Kirk McKay, his heirs and/or assigns, to retain the right to use the surface of the man made lakes as they exist on the property; provided, however, that neither grantee, his heirs and/or assigns, shall have any responsibility to maintain the said lakes.
Grantee, his heirs and/or assigns agrees that there will be no use made of the property being conveyed hereunder that would be detrimental to the use of the property owned by adjacent property owner or property owner lying adjacent to the west....
Subsequently the property was conveyed to Appellee Townson who had constructive knowledge of the restrictions from the public records. McKay retained the land immediately west of the lake property. Citing violation of the two provisions by Townson’s dumping of fill dirt into the lake, McKay filed suit on January 20,1987, seeking a mandatory injunction. The trial court found that both restrictions were “substantially ambiguous” as to be “unenforceable as a matter of law,” and granted a final summary judgment in favor of Townson. This appeal by McKay ensued.
Although McKay argues that Townson has violated both restrictions, we think the controversy here essentially involves the provision reserving to McKay the right to use the surface of the lake. The other provision, which proscribes use of the property that would be “detrimental” to McKay’s adjacent property, appears to be more relevant to the general use of the land in question.
We recognize that covenants restraining the free use of property are to be strictly construed in favor of the grantee and ambiguity in restrictions must be resolved against the person claiming enforcement. Moore v. Stevens, 90 Fla. 879, 885, 106 So. 901, 903 (1925); Norwood-Norland Homeowners’ Assn., Inc. v. Dade County, 511 So. 2d 1009, 1014 (Fla. 3d DCA 1987). Yet where, as here, the provision that governs the dispute sufficiently evidences the intention of the parties, it will be enforced. Barrett v. Leiher, 355 So. 2d 222, 225 (Fla. 2d DCA 1978).
We think the court erred in finding the restriction ambiguous which reserves unto McKay “the right to use the surface of the man made lakes as they exist on the property.” Rather, we think the restriction refers to the lake as it substantially existed at the time of the conveyance, a matter which can be ascertained factually. Furthermore, we believe that to hold the lake restriction unenforceable would be to place within Townson’s power the means by which he could abolish a substantial benefit which McKay reserved in his 1976 deed.
We express no opinion as to McKay’s entitlement to the relief he seeks. We simply conclude that entitlement to any relief was foreclosed when the trial court determined the restrictions were unenforceable.
Accordingly, we vacate the summary judgment in favor of Townson and remand for proceedings consistent with this opinion.
LEHAN and PARKER, JJ. concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Moore v. Stevens, 90 Fla. 879 (Fla. 1925)
- Norwood-Norland Homeowners' Assn., Inc. v. Dade Cnty., 511 So. 2d 1009 (Fla. 3d DCA 1987)
- Watts v. Magdalene Booth Watts, 355 So. 2d 222 (Fla. 1st DCA 1978)
- Barrett v. Leiher, 355 So. 2d 222 (Fla. 2d DCA 1978)