HENRY A. SLOANE ET AL., APPELLANTS,
v.
DIXIE GARDENS, INC., AND CRESTRIDGE UTILITIES CORPORATION, APPELLEES
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A property owner challenged a recorded restriction requiring residents of a subdivision to pay for garbage collection services provided by a developer-affiliated utility corporation. The court upheld the validity of such covenants as not contrary to public policy, but reversed and remanded because the utility was charging $2.25 per month instead of the agreed $1.75, and the trial court failed to properly declare the parties' rights.
The court held that developers may validly provide for furnishing essential services and bind lot owners to pay for them, and such agreements do not violate public policy. However, the utility corporation cannot charge a price different from that agreed upon ($1.75 per month) unless compelling considerations justify it. The covenant runs with the land, and the trial court erred in dismissing the complaint with prejudice.
[1] Developers may validly impose restrictions requiring lot owners to pay for essential services, such as garbage collection, as covenants running with the land.
[2] A covenant requiring lot owners to pay for garbage collection service is not void as against public policy, even if it creates an exclusive arrangement.
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“The basic question is whether developers of property can provide for the furnishing of essential services and bind the owners of lots to pay for them. We think they can.”
Establishes the court's approval of developer-imposed utility covenants as valid and binding
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSloane, a resident of Crestridge Gardens Subdivision, sought to invalidate a recorded restriction requiring lot owners to pay for garbage collection s…
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Sloane, a resident of Crestridge Gardens Subdivision, sought a declaratory judgment *310invalidating a restriction recorded in reference to that subdivision and which the developer asserts is binding on all residents as a covenant running with the land. It reads:
“If the Developer ... or the CRESTRIDGE UTILITIES CORPORATION . . . causes garbage collection service bi-weekly1 to be made available, the owner of each lot shall pay the Developer or its assigns, the sum of one and 75/100th ($1.75) Dollars per month therefor.”
Sloane says that there is no barrier to his right to employ another contractor for garbage collection.
The trial court found that the agreement was valid, that Crestridge Utilities Corporation had been making the service available, albeit at $2.25 per month, and that until recently the residents had been accepting the service and paying for it. He went on to find that it was unnecessary to determine whether the utilities corporation was under a duty to continue to provide the service, since it was then doing so. The opinion and final judgment is correct in all particulars except that the complaint was dismissed with prejudice. The developer appeals from this order.
We think that the judgment should have declared the rights of the parties to accord with the findings of fact. On remand, there are other questions unresolved. Sloane’s basic complaint is against the price of $2.25 per month, when he alleges that another contractor will do the job for $1.75. It is not clear on what authority the corporation charges $2.25. It cannot claim the right to perform the service without acknowledging the obligation to perform it at the agreed upon price, absent compelling considerations not present on the record before us.2
The basic question is whether developers of property can provide for the furnishing of essential services and bind the owners of lots to pay for them. We think they can. We find no contravention of public policy in the agreement. Sloane’s argument that it constitutes a monopoly void as against public policy is without merit. Garbage collection is essential to a well-run community, and may be treated as an exclusive franchise just as the furnishing of telephone service and electric power are.
We point out that the present litigation involves relationships between private persons and a local utility corporation associated .with the developer of the land. We are not called upon to determine the right of public authority to regulate or supersede the service. Although the present litigation involved parties in privity, and the trial court found it unnecessary to declare whether the covenant runs with the land, we think it clear that it does and that the parties had standing to request an adjudication to that effect, since the marketability of title is in question.
The order dismissing the complaint is reversed and the cause is remanded for further proceedings consistent with this opinion.
LILES and HOBSON, JJ„ concur.
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Cohee v. Crestridge Utils. Corp., 324 So. 2d 155 (Fla. 2d DCA 1975)…ction of the issues raised in the pending litigation.1 At the outset it should be noted that this is not the first dispute Crestridge has had with a property owner over rates for utility services. In Sloane v. Dixie Gardens, Inc., Fla.App.2d, 1973, 278 So. 2d 309, this court considered the effect of the action of Crestridge in charging $2.25 per month for garbage collection when the contract be [*157] tween Crestridge and Dixie Gardens, Inc. provided for a fee of $1.75 per month. This court directed the tria…
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Balzer v. Indian Lake Maint., Inc., 346 So. 2d 146 (Fla. 2d DCA 1977)…Finally, we would point out that this court has, subsequent to Henthorn, upheld the right of developers to provide the furnishing of essential services and bind by covenant owners of subdivision lots to pay for them. Sloane v. Dixie Gardens, Inc., 278 So. 2d 309 (Fla. 2d DCA 1973). Moreover, the final judgment below reveals that half, if not more of the funds generated by the maintenance covenant have, since 1966, been expended on necessary items with respect to the general scheme of development. Thus this…
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Bessemer v. Gersten, 381 So. 2d 1344 (Fla. 1980)…p. v. Clutter, 173 So. 2d 761 (Fla. 3d DCA 1965), or if the owner and spouse mortgage the homestead as authorized by article X, section 4(c), Florida Constitution. . Wood v. McElvey, 296 So. 2d 102 (Fla. 2d DCA 1974); Sloane v. Dixie Gardens, Inc., 278 So. 2d 309 (Fla. 2d DCA 1973); Japanese Gardens Mobile Estates, Inc. v. Hunt, 261 So. 2d 193 (Fla. 2d DCA 1972); Henthorn v. Tri Par Land Dev. Corp., 221 So. 2d 465 (Fla. 2d DCA 1969). . There was constructive notice, Vetzel v. Brown, 86 So. 2d 138 (Fla.1956)…
Authorities Cited
- Henthorn v. Tri Par Land Dev. Corp., 221 So. 2d 465 (Fla. 2d DCA 1969)
- TRI PAR Land Dev. Corp. v. Henthorn, 241 So. 2d 429 (Fla. 2d DCA 1970)