NEW PRODUCTS CORP., A FLORIDA CORPORATION, APPELLANT,
v.
CITY OF NORTH MIAMI, A FLORIDA MUNICIPAL CORPORATION, APPELLEE
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New Products Corp. contracted to purchase property from the City of North Miami for $75,000, conditioned on rezoning to multiple family use. The City refused to perform, and the trial court invalidated the entire contract based on the illegal rezoning provision. The appellate court reversed, holding that an illegal covenant benefiting the purchaser is severable, allowing the purchaser to waive it and enforce the contract for the property as-is.
The illegal rezoning covenant was severable from the contract and benefited the purchaser, who had the option to waive it and enforce specific performance for the property as originally zoned. An illegal obligation imposed on the seller for the benefit of the buyer does not vitiate the entire contract; rather, the purchaser may require specific performance of the remaining valid portions.
[1] A provision in a real estate contract requiring a municipality to rezone property is an illegal covenant.
[2] A purchaser may waive an illegal provision in a contract for their benefit and proceed with the purchase by paying the full consideration.
Previewing 2 of 5 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“Clearly, the provision requiring the City to re-zone the property to multiple family was an illegal covenant [...] However, it was for the benefit of the purchaser and he had the option to waive this provision, pay the full consideration, and take the property as presently zoned.”
Establishes the core holding that an illegal covenant benefiting the purchaser is waivable and does not void the contract.
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Join FLexlaw to unlock all legal intelligenceNew Products Corp. and the City of North Miami entered into a contract for the purchase of property for $75,000, with a provision requiring the City t…
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The appellant and appellee-City entered into a contract for the appellant to purchase certain property in consideration of the payment of $75,000.00. One of the provisions of the contract of purchase and sale required the property to be rezoned multiple family. The City apparently determined not to go through with the transaction. Suit for specific performance was instituted, during the pendency of which the purchaser agreed to take the property as originally zoned and pay the full purchase price. The chancellor held that the provision requiring the City to re-zone the property to multiple family was an illegal provision which vitiated the entire contract, and rendered a final decision in favor of the City and this appeal ensued. We reverse.
Clearly, the provision requiring the City to re-zone the property to multiple family was an illegal covenant. Hartnett v. Austin, Fla.1956, 93 So.2d 86; Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, Fla.*452App.1958, 108 So.2d 74. However, it was for the benefit of the purchaser and he had the option to waive this provision, pay the full consideration, and take the property as presently zoned. Livingston v. Malever, 103 Fla. 200, 137 So. 113; Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263; 7 Fla.Jur., Contracts, § 140. Generally, when a contract provides for two obligations on the part of one party and consideration to be paid by the other [one of which obligations on the party of the first part being illegal], the party of the second part [who pays the consideration] has the option to complete the contract notwithstanding the illegality or inability to enforce one of the promises on the part of the party of the first part. Osgood v. Central Vermont R. Co., 77 Vt. 334, 60 A. 137; Central New York Telephone & Telegraph Co. v. Averill, 199 N.Y. 128, 92 N.E. 206; Suesskind v. Wilson, 124 Ohio St. 54, 176 N.E. 889; Packard & Field v. Byrd, 73 S.C. 1, 51 S.E. 678; 17 Am.Jur.2d, Contracts, § 230; 7 Fla.Jur., Contracts, § 70; cf. Local No. 234 of United Association of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada v. Henley & Beckwith, Inc., Fla.1953, 66 So.2d 818. However, the converse of this is not true when the consideration is illegal. Morgan v. Foster, 208 Ga. 630, 68 S.E.2d 583; Good Hope State Bank v. Kline, 303 Ill.App. 381, 25 N.E.2d 425; Guardian Agency v. Guardian Mut. Sav. Bank, S.Ct.Wis.1938, 279 N.W. 79. It is generally held that a purchaser of real property may waive obligations on the part of the seller and take the property without complete performance on the part of the seller upon the payment of the entire purchase price [Triplett v. Brevard Properties, Inc., 94 Fla. 869, 115 So. 534; Kubicek v. Way, Fla.App.1958, 102 So.2d 173; Mazel v. McCurrach, Fla.App.1959, 110 So.2d 696; Urbain v. Speak, S.Ct.Iowa 1966, 139 N.W.2d 311; Sidle v. Kaufman, 345 Pa. 549, 29 A.2d 77]. The impact of these holdings is that the obligation to perform certain covenants in addition to conveyance of the property [which are for the benefit of the purchaser] are severable. And, even though the covenants may not be performed or would be illegal they are not integral parts of the contract and the purchaser may require specific performance of the remaining valid portions of the agreement.
Therefore, for the reasons above stated the final judgment here under review be and the same is hereby reversed, with directions to the trial judge to grant specific performance to the appellant in accordance with the agreement between it and the City, save and except that portion relating to a re-zoning of the parcel.
Reversed and remanded, with directions.
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Title & Tr. Co. OF Fla. v. Parker, 468 So. 2d 520 (Fla. 1st DCA 1985)…th legal and illegal terms and enforcement of the illegal terms can be refused without nullifying the contract’s essential purpose, courts will give effect to those valid portions and ignore the illegal terms, New Products Corp. v. City of N. Miami, 241 So. 2d 451 (Fla. 3d DCA 1970), cert. den., 244 So. 2d 434 (Fla.1971); Points v. Barnes, 301 So. 2d 102, 104 (Fla. 4th DCA 1974), cert. den., 312 So. 2d 751 (Fla.1975).3 For the foregoing reasons, the judgment appealed from is AFFIRMED. MILLS and NIMMONS, JJ.…
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P.C.B. P'ship v. The City OF Largo, 549 So. 2d 738 (Fla. 2d DCA 1989)…n property the City conveyed to Largo Bunch. In our view, the portions of the agreement concerning the exchange of property are severable from the ultra vires provisions of the agreement. See Local No. 234; New Products Corp. v. City of North Miami, 241 So. 2d 451 (Fla. 3d DCA 1970), cert. denied, 244 So. 2d 434 (Fla.1971). Although it is unclear, at this stage of the proceedings, to which portion of the agreement the money is allocable, if it is allocable to the property exchange portion of the agreement it…
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Points v. Barnes, 301 So. 2d 102 (Fla. 4th DCA 1974)…everable, the remaining portions of the agreement (which grant the easement and restrict the grantor’s use thereof) are not affected, and being valid they are properly enforceable. See, New Products Corporation v. City of North Miami, Fla. App.1970, 241 So. 2d 451 (cert. den. Fla. 1971, 244 So. 2d 434); Kass Realty Company v. Stanley Company of America, 1955, 96 U.S.App.D.C. 332, 226 F. 2d 54; McCullough v. Clinch-Mitchell Const. Company, 8 Cir. 1934, 71 F. 2d 17 (cert. den. 293 U.S. 582, 55 S.Ct. 96, 79 L.Ed…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Local NO. 234 OF United Ass'n OF Journeymen & Apprentices OF Plumbing & Pipefitting Indus. OF United States & Canada v. Henley & Beckwith, Inc., 66 So. 2d 818 (Fla. 1953)
- Gilman v. Butzloff, 155 Fla. 888 (Fla. 1945)
- Livingston v. Malever, 103 Fla. 200 (Fla. 1931)
- Hartnett v. Austin, 93 So. 2d 86 (Fla. 1956)
- Bd. OF Comm'rs OF State Insts. v. Tallahassee Bank & Tr. Co. cum testamento annexo, 108 So. 2d 74 (Fla. 1st DCA 1958)
- Triplett v. Brevard Props., Inc., 94 Fla. 869 (Fla. 1927)
- Kubicek v. WAY, 102 So. 2d 173 (Fla. 2d DCA 1958)
- Mazel v. McCURRACH, 110 So. 2d 696 (Fla. 2d DCA 1959)