NEWS

Summer Soiree

admin 7/31/2019
“RPPTL Summer Soiree” was held on July 18, 2019 at Northern Trust in Naples. Current and prospective section members were invited and 80 people attended. A special thank you to our Sponsors which include the RPPTL Section; Dunwody White & Landon, P.A.; London Bay Homes; Northern Trust; Porter Wright Morris & Arthur LLP; and Roetzel & Andress, LPA.
 
 

2019 Modifications to Florida Business Corporation Act (Annotated) - Chapter 607

admin 7/15/2019
The attached is a copy of the modifications made to Chapter 607 (expanded to include all sections of Chapter 607, even if not modified), and to certain sections of other Florida entity statutes, that were adopted by the Florida legislature during the 2019 legislative session, with full commentary explaining the changes. The attached copy of the modifications has been prepared by the Chapter 607 Drafting Subcommittee of the Corporations, Securities and Financial Services Committee of the Business Law Section of The Florida Bar that developed the proposed modifications. The attached copy of the modifications should not be relied upon by practitioners as being authoritative or completely accurate, and practitioners would be advised to should consult the actual statutory provisions when providing advice to clients. The modifications to Chapter 607 and to certain sections of other Florida entity statutes that are referenced in the attached copy of the modifications will become effective on January 1, 2020.

RPPTL dominates the Women Florida Super Lawyers

admin 6/18/2019
RPPTL dominates the Women Florida Super Lawyers with 7 of the 50 being members of our Executive Council. Congrats, ladies! 

Jail –N-Bail Fundraising Event raises over $40,000!

admin 6/10/2019

RPPTL Section Convention 2019

WE RAISED OVER $40,000!!!

May 31, 2019

Read more in the Florida Bar News 

 
RPPTL Section hosted a Jail –N-Bail Fundraising Event for The Florida Bar Foundation. All proceeds will go to fund The Florida Bar Foundation to help provide access to justice for all Floridians. Thanks to Retired Judge Patricia Thomas who set the bond and all “jailbird” participants. Bond payments will be made directly to The Florida Bar Foundation. Thanks to the following volunteer “outlaws” and all participants:
Mike Bedke
Sandy Diamond
Pete Dunbar
Laird Lile
Drew O’Malley
Bill Perry
Gwynne Young
Andy Sasso
Mike Tanner
Bill Schifino
Adele Stone
Rob Freedman
Hala Sandridge
DBrunner@DresdenBrunnerLaw.com for more information

RPPTL visits Ave Maria School of Law

admin 4/4/2019

Thank you to the following RPPTL members who visited Ave Maria School of Law yesterday to meet with students. See the photos.
 
Moderator:

Michael Sneeringer, Senior Associate, Porter Wright Morris & Arthur

 

Panelists:

Robert L. Lancaster, Principal, Cummings & Lockwood

Lisa Van Dien, General Counsel, London Bay Homes

Noelle Melanson, Shareholder, Melanson Law PA

TBA Fourth Annual Leon County Public School Legal Initiative

admin 3/30/2019
Tallahassee Bar Association collaborated with the Tallahassee Barristers Association in applying for a diversity grant from The Florida Bar that allowed the two voluntary bar associations to partner with Leon County Public Schools, the FSU College of Law, Discover Law Grant Program with the Law School Admission Council, Real Property Probate Trust Litigation Section of The Florida Bar, our Judiciary, and others to make the Fourth Annual Leon County Public School Legal Diversity Initiative happen again this year. The purpose of the program is to expose high school students to the diversity of the legal profession. The program allows students to get up close and personal with diverse attorneys in age, race, gender, and practice area.

The full-day event was held at various courts and the FSU College of Law. This innovative program allows students from Godby High, Lincoln High, Florida High, and Rickards High to get a behind-the-scenes look at the Leon County Circuit Court, Northern District of Florida U.S. Bankruptcy Court, and the First District Court of Appeal. After touring the various Courts the students conducted their own mock trials at the FSU Law and the day concluded with a speed networking lunch with judges, law students, lawyers and para-professionals from the local legal community.

TBA Event Chair Jami Coleman said, “The Leon County Public Schools Legal Initiative with the Tallahassee Bar Association, Tallahassee Barristers, FSU College of Law, Law School Admission Council, Real Property Probate Trust Litigation Section of the Florida Bar and the Florida Bar Diversity Initiative has proven to be a successful annual program. Thanks to all the collaborators and The Florida Bar grant we are able to host this event again!” 

Now accepting Fellows applications for 2019

admin 3/29/2019
Now accepting applications for 2019 Fellows. Learn more here

2 Scholarships available for Florida Bar Leadership Academy

admin 12/11/2018
$3,500.00 IS AVAILABLE TO 2 RPPTL SECTION MEMBERS!
Interested in participating in The Florida Bar Wm. Reece Smith, Jr. Leadership Academy?
In support of the Leadership Academy, the RPPTL Section will select up to 2 active contributing members of a RPPTL Section Committee, to apply to the Leadership Academy as the Section’s scholarship nominee.
If a RPPTL Section nominee is chosen as an Academy Fellow, the Section will reimburse the participant up to $3,500.00 for out of pocket travel and hotel expenses incurred in attending the Leadership Academy.
2019 Leadership Academy applications are now available from The Florida Bar. Applicants must submit their Leadership Academy application to kfernandez@kfernandezlaw.com by Friday, December 14, 2018. The RPPTL Section Leadership Academy Committee will review the applications and then inform the nominee(s) of their selection for the potential scholarship.
A full explanation of the Florida Bar Wm. Reece Smith, Jr. Leadership Academy is available on the Florida Bar’s website athttp://www.floridabar.org/leadershipacademy.
Contact Kristopher Fernandez, (813) 832-6340,kfernandez@kfernandezlaw.com; Brian Sparks, (813) 739-6966,bsparks@gunster.com; or J. Allison Archbold, Esq.; (941) 960-8825,JAA@archbold.law, if you have questions regarding the RPPTL Section scholarships for The Florida Bar Wm. Reece Smith, Jr. Leadership Academy.

ALM Nominations

admin 11/8/2018
Accepting nominations for At Large Members until December 15, 2018. Learn more

South Florida Legal Mentoring Picnic Photos

admin 10/27/2018
 Check out the pictures from this great event! 

Attending your first RPPTL Meeting?

7/6/2018
Everything you need to know to easily navigate your first RPPTL meeting . Download the tip sheet. 

Constitutional Revision Commission’s Final Report /Proposed Constitutional Revisions: General Election Ballot

Michael J. Gelfand 6/1/2018

The Constitutional Revision Commission’s Final Report proposed to the citizens of the State eight sets of revisions to the Florida Constitution. The proposed revisions are scheduled to be on the next General Election Ballot, November 6, 2018. A proposed revision requires approval of sixty percent of the votes cast for the proposal. Fla. Const. Art. XI, §5(e)

Voters will look to lawyers for guidance as to the proposals. Please review the proposals so that you can provide that guidance, and understand how these proposals are important to all Florida citizens, not the least Florida lawyers, and in particular members of the Real Property and Probate Law Section of The Florida Bar and their clients. Changes to the Florida Constitution, Florida’s fundamental source of law after the Federal Constitution, impact our clients, and thus our practices.

After holding public hearings around the state to solicit citizen input the Commissioners filed 103 proposals for consideration. During open meetings at the State Capital, and a second series of public hearings around the State, the number of proposals was reduced, dropping many that were of concern to the Section. Proposals that did not survive the process included a revision to the homestead protection against forced sale, and to disability law thresholds. Surviving proposals were refined, somewhat.

Unlike Florida legislation which is required to embrace a single subject, the Commission’s proposals have no similar restraint. At least five proposed revisions contain varied subjects. The impact of grouping disparate subjects may create unusual dynamics as election day approaches.

Below are links to each proposed Revision as numbered and titled by the Commission. The Commission’s titles may be perceived as too narrow and incomplete; thus, I have supplied bullet summaries which are intended to be short, concise and non-partisan. The ballot will contain Commission approved summaries which are included in the Final Report.

SUMMARY OF PROPOSED CONSTITUTIONAL REVISIONS

Revision 1: Rights of Crime Victims; Judges

  • Victims’ rights include being informed as to process, a speedy trial, restitution and prompt return of property, protection which includes bail setting and location non-disclosure considerations, participation in clemency and expungement.
  • Speedy trial requirements which state can trigger, including 60 days from calendar call.
  • Limiting appeals and collateral attacks including two years for appeals, capital appeals being five years.
  • Judicial mandatory retirement age is to be extended to seventy-five years.
  • Agency statutory and rule interpretations are not provided judicial deference.

Revision 2: First Responder and Military Member Survivor Benefits; Public Colleges and Universities

  • State universities may not impose or increase fees without supermajority trustees’ vote (not including tuition).
  • Each state college shall have a board of trustees, and shall be supervised by the Department of Education.
  • Certain death benefits for survivors of first responders and military members are mandated.

Revision 3: School Board Term Limits and Duties; Public Schools

  • School board members are prohibited from seeking election after eight years of service.
  • School board oversight is limited to schools created by that board’s District.
  • The Legislature shall promote civic literacy for public school students.

Revision 4: Prohibits Offshore Oil and Gas Drilling; Prohibits Vaping in Enclosed Indoor Workplaces

  • Offshore extraction of oil and gas is prohibited in the state’s territorial seas unless the area is alienated.
  • Vaping is prohibited in most indoor work-spaces, excluding most private residences.

Revision 5: State and Local Government Structure and Operation

  • Regular legislative sessions in even numbered years are advanced to January.
  • Office of Domestic Security and Counter-Terrorism to support law enforcement agencies.
  • Department of Veterans’ Affairs to be headed by the Governor and the Cabinet.
  • County Constitutional Officers duties, selection and term cannot be changed by county charter.

Revision 6: Property Rights; Removal of Obsolete Provision; Criminal Statutes

  • Repeals legislative regulation of real property ownership by aliens ineligible for citizenship.
  • Deletes the prohibition of the application of a criminal penalty which was repealed after a crime occurred.
  • Repeals high speed ground transportation alternatives development.

Revision 7: Lobbying and Abuse of Office by Public Officers

  • Prohibits elected and many high placed appointed officials from lobbying for compensation while in office and for six years after leaving office, except as their office may require, and defining parameters.
  • Rule-making authorized to implement anti-nepotism requirement.

Revision 8: Ends Dog Racing

  • Prohibits racing of dogs in the State for wagers after December 31, 2020.
  • Licensed greyhound permitholder may cease dog wagering after 2018 without being subject to revocation of the right to conduct other pari-mutual activities.

Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Lawyers

Gelfand & Arpe, P.A.

"Assisting Communities to Efficiently Reach Goals"

1555 Tower, Suite 1220

1555 Palm Beach Lakes Blvd.bb

West Palm Beach Florida 33401-2329

(561) 655-6224

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News: Miami-Dade County amends County Code: Requires sellers to disclose whether the property is within special taxing districts

Admin 3/21/2018

MIAMI - DADE AMENDS COUNTY CODE

Recently, the Board of County Commissioners approved ordinance 18-12 amending section 18-20.2of the Miami | Dade County Code. The new ruling calls for the seller to disclose whether the property is within one of Miami | Dade County’s 1,070 Special Taxing Districts. The seller must include speci?c language on the instrument conveying property (the deed) and have the purchaser sign it.

EXAMPLE - I HEREBY CERTIFY THAT I UNDERSTAND THAT THE PROPERTY WHICH IS THE SUBJECT OF THIS TRANSACTION IS LOCATED WITHIN _____ SPECIAL TAXING DISTRICT CREATED BY MIAMI- DADE COUNTY (OR PROPOSED TO THE BOARD OF COUNTY COMMISSIONERS) FOR THE PURPOSE OF PROVIDING LOCAL IMPROVEMENTS AND SERVICES IN THE NATURE OF _____. _______________________ Signature of Purchaser

The enforcement of this new ruling is set to begin May 17, 2018. However, there has been no clear outline as to what the penalty will be for non-compliance. Included in the new changes, the buyer will now be required to sign the deed acknowledging the disclosure. It is also unclear as to whether any liability would fall upon the title agent executing the closing should the seller not disclose the required information prior to the sale.

Currently, the new ordinance is centralized to the South Florida area, but could expand into Broward County.
 

RPPTL New Items: Altman Contr. v. Crum & Forster (Chp. 558 and Duty to Defend)

Michael J. Gelfand 1/22/2018

Catching up on holiday reading, the Supreme Court of Florida’s decision on Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Company, Case No. SC16-1420, 42 Florida Law Weekly S 960 (Fla. December 14, 2017), may seem to focus on narrow issues but is jam packed with tidbits for the office practitioner and the litigator whether your practice is limited to community association law, or a broader civil practice. Drawing our attention are the four opinions issued.

The opinion of a majority, four responded to the request from United States Court of Appeals for the Eleventh Circuit. The Supreme Court rephrased the certified question as follows:

Is the notice and repair process set forth in chapter 558, Florida Statutes, a “suit” within the meaning of the commercial general liability policy issued by C&F to Altman?

Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 832 F.3d 1318, 1326 (11th Cir. 2016). The court answered yes:

… because the chapter 558 presuit process is an “alternative dispute resolution proceeding” as included in the policy’s definition of “suit.”

The facts may appear pedestrian. Sapphire Condominium provided Altman numerous Chapter 558 notices of claim from April 2012 through November 2012 claiming over 800 defects. In January 2013 Altman provided its insurer Crum & Forster (“C&F”) notice of the claims and a demand for coverage. C&F declined to defend asserting that the notices did not constitute a “suit” under the policy.

Altman retained its own counsel. In August 2013 C&F provided a reservation of rights letter and C&F retained counsel to defend Altman. Altman objected to new counsel and demanded that Altman’s original counsel continue and that C&F reimburse for the expense of its counsel. Ultimately, Altman settled all of the claims, the Association not filing a lawsuit.

Altman filed a declaratory judgement action against C&F resulting in the District Court finding no policy ambiguity on the issue of coverage, denying Altman’s motion for partial summary judgment and granting C&F’s motion for partial summary judgment. Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co.,124 F. Supp. 3d 1272, 1275 (S.D. Fla. 2015).

Construing Chapter 558 Fla. Stat. (2012), in context of the policy, the court then quoted from the policy which defines a “suit” as not just a complaint filed in court:

“Suit” means a civil proceeding in which damages because of “bodily injury,” “property damage” or “personal and advertising injury” to which this insurance applies are alleged. “Suit” includes:

a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or

b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.

Ultimately focusing on the “other alternative dispute resolution proceedings” language, and relying in part on Black’s Law Dictionary’s definition as “[a] procedure for settling a dispute by means other than litigation” the court held that the Chapter 558 proceedings fall under the policy’s definition of a “suit.”

On the path to this conclusion, the Court engaged in a number of interesting discussions. Harkening back to the Court’s decision in Raymond James Financial Services, Inc. v. Phillips, 126 So. 3d 186 (Fla. 2013) the Court revisited what constitutes a “civil proceeding.” Referring to only the statutory text, a “chapter 558 notice and repair process cannot be considered a “civil proceeding” because the process is voluntary, does not involved in adjudicatory body, or produce legally binding results.

The Court noted that §558.001 Fla. Stat. was amended to add that the benefits of the Act were extended to …. “the insurer of the contractor, sub-contractor, supplier, or design professional with the opportunity to resolve the claim through confidential settlement negotiations without resort to further legal process….” (Ch. 2015-165, § 1, Laws of Fla.). The Court did not comment that while insurers were provided an “opportunity” to participate, the statute does not expressly require the insurer to participate. The opinion does not comment as to why the legislature may have amended the law.

The Court was somewhat fractured. Four opinions were provided. A clear majority joined the courts opinion. Justice Lewis provided a concurrence and Justice Pariente separately provided concurring and descending opinions, as did Justice Lawson. These minority opinions considered whether the underlying policy provided coverage for the claim an issue that the majority opinion sidestepped when focusing only on the duty to defend.

How will this decision affect the community association, and likely other practitioners? This will focus on whether initiation of alternate dispute resolution processes such as, for example, mandatory pre-suit mediation provided by §718.311 Fla. Stat. trigger a duty to defend? This issue will send practitioners to review client’s policies.

What else? Of course, consider that the decision will provide insurers an impetus for insurers re-write their policies definition of a “suit.” Until then, consider what other ADR processes may trigger a duty to defend, of course depending upon your client’s policy provisions.

Thank you to Scott Pence, Chair of the RPPTL Insurance and Surety Committee for providing a heads up concerning the decision. For those that address insurance issues, you should consider joining the Insurance Committee. Check it out at www.rpptl.org.

Be certain to sign up for the Real Property and the Condominium certification review seminars scheduled in Orlando for February 9th and 10th.

Belated good wishes to all for a successful, healthy and positive new year.

Michael J. Gelfand
Past Chair
Real Property, Probate and Trust Law Section of The Florida Bar
Click www.RPPTL.com for Breaking News
About Florida’s Largest Substantive Law Section!

Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section
© 2018 Michael J. Gelfand

Michael J. Gelfand
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator:
Civil Circuit Court & Civil County Court
Fellow, American College of Real Estate Attorneys

ALM Nominations deadline Dec 15, 217

admin 12/7/2017
Deadline for ALM nominations is 12/15/17. More details and application

Apply for The Florida Bar Wm. Reece Smith, Jr. Leadership Academy

admin 11/20/2017
$3,500.00 IS AVAILABLE TO 2 RPPTL SECTION MEMBERS!
Interested in participating in The Florida Bar Wm. Reece Smith, Jr.
Leadership Academy? Two RPPTL Section scholarships cover out of pocket
travel and hotel expenses incurred in attending the Leadership Academy up to
$3,500.00.
 
WHAT IS THIS? The Florida Bar is accepting applications for the 20187 Leadership
Academy, a one-year multi-session training program designed to assist a diverse and inclusive group of
lawyers in becoming better leaders within our profession while enhancing their leadership skills.
 
HOW DOES IT WORK? In support of the Leadership Academy, the RPPTL Section will select up to 2 active
contributing members of a RPPTL Section Committee, to apply to the Leadership Academy as the
Section’s scholarship nominee. If a RPPTL Section nominee is chosen as an Academy Fellow, the
Section will reimburse the participant up to $3,500 for out of pocket travel and hotel expenses incurred
in attending the Leadership Academy. To receive the scholarship, the nominee(s) if chosen by The
Florida Bar as a Leadership Academy Fellow must agree to remain actively involved in the RPPTL Section
after the conclusion of the Leadership Academy.
 
TIMING? 2018 Leadership Academy applications will be available from The Florida Bar on
Thursday, December 1, 2017. To be eligible for the RPPTL Section scholarship(s), potential
applicants must submit a COPY of their Leadership Academy application to
rpptlapplications@gmail.com by Friday, December 15, 2017 (with a copy to
kfernandez@kfernandezlaw.com). The RPPTL Section Leadership Academy Committee will review the
applications and then inform the nominee(s) of their selection for the potential scholarship. The
nominee(s) must still submit the completed application to The Florida Bar for approval by The Florida
Bar Leadership Academy Committee.
 
A full explanation of the Florida Bar Wm. Reece Smith, Jr. Leadership Academy, is available on the
 
If you have any questions regarding the RPPTL Section scholarships for The Florida Bar Wm. Reece
Smith, Jr. Leadership Academy, please contact Kristopher Fernandez, (813) 832-6340,
kfernandez@kfernandezlaw.com or Brian Sparks, (813) 222-8515,
brian.sparks@hwhlaw.com; J Allison Archbold, Esq.; (941) 960-8825,

Citizens Begins taking claims in Big Pine Key on Wednesday

Neil B. Shoter 9/20/2017
Press Release_Big Pine Key_Keys response

Court Closure State Wide Friday, and time extensions to Monday

Michael J. Gelfand 9/6/2017

Attached is Chief Justice Larbarga’s Administrative Order, No. AOSC17-46, announcing the closure of all court’s statewide on Friday, and a corresponding extension of most time limits for deadlines falling from the close of business on Thursday, September 7, 2017, until the close of business on Monday, September 11, 2017.

Note that most firms in south Florida will be closed Friday, and many for a good portion of on Thursday.

May all who are the path of the storm find safe shelter, fortitude and calm. May everyone find patience and understanding.

 

Michael J. Gelfand
Past Chair
Real Property, Probate and Trust Law Section of The Florida Bar
Click www.RPPTL.org  for Breaking News
About Florida’s Largest Substantive Law Section!
Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section
© 2017 Michael J. Gelfand

RPPTL Sponsors Minority Mentoring Picnic

Jesse Friedman 2/13/2017

On Saturday, February 4, 2017, the Real Property, Probate & Trust Law Section of the Florida Bar was again a sponsor of the Kozyak Foundation's Annual Minority Mentoring Picnic (the "MMP"), held at Amelia Earhart Park in Hialeah, Florida. The MMP is the Kozyak Foundation's premiere event and gives every law student, lawyer, or judge who attends the opportunity to connect with or serve as a mentor or mentee, supporting the Foundation's goal of mentoring as a means to foster diversity and inclusion in the legal profession.

The Real Property, Probate & Trust Law Section of the Florida Bar is dedicated to diversity and inclusion. Hung Nguyen and Jesse Friedman co-chaired the RPPTL Section's sponsorship of the MMP. Section members helped make the event a true success by volunteering of their time and energy at the RPPTL tent. At the RPPTL tent, attendees were able to learn about the benefits of the Section and upcoming meetings, meet RPPTL members, join the Section, take away recent issues of ActionLine and other fun Section-branded goodies, and most importantly - engage in mentorship. This year's 13th Annual MMP and the Section's involvement was the most successful yet!

RPPTL SECTION STARTS BICYCLE CLUB

Robert Swaine 1/30/2017

The RPPTL Section recently formed a bicycle club bicycle rides at upcoming Executive Council meetings. Both causal and experienced cyclists are invited to join in on the fun. Custom Riding Reptile bike jerseys are available for order now!

Are you a cyclist? Wanna try?

Marty Solomon and others have formed the RPPTL Riding Reptiles Bicycle Club, and you are invited to join for FREE. The club will work to organize bike rentals and bike routes at upcoming Executive Council meetings.

Don’t feel like wearing spandex? Not a problem. There will be groups and ride routes for normal people who just want to go for a ride, as well as the Mike “Big Ring” Bedke die-hard group. The point is, this is an opportunity to ride in new cities with friends at your own pace. We are going to start with Deb Goodall’s Austin meeting. If you are interested in participating, please RESIST THE URGE TO RESPOND TO THIS EMAIL and email Marty at msolomon@carltonfields.com<mailto:msolomon@carltonfields.com>.

If you are a cyclist, you will definitely want to purchase the custom Riding Reptile jersey that Marty designed. You can view the logo on the attachment and purchase your jersey from the link below within the next 20 days. Orders should be delivered by March 9, unfortunately not in time for the Austin rides.. You can view the logo on the attachment and purchase your jersey from the link below within the next 20 days. Orders should be delivered by March 9, unfortunately not in time for the Austin rides.

Your online store is ready for ordering at: http://shop.jakroo.com/RPPTL-Reptiles

Save Calusa Trust v. St. Andrews Holdings, Ltd

Manuel Farach 1/9/2017

When does a local government ordinance become a restrictive covenant that is subject to being extinguished through application of the Marketable Record Title Act, Florida Statute section 712.01 et. seq.? That was the question in Save Calusa Trust v. St. Andrews Holdings, Ltd., 193 So. 3d 910 (Fla. 3d DCA 2016), where the Third District Court of Appeal held that a restrictive covenant imposed by government as part of development order is not subject to and cannot be extinguished by the Marketable Record Title Act.

I. Facts

This case begins in 1967 when a developer sought to create a golf-course in Miami-Dade County. The real property was zoned General Use (“GU”), which did not permit a golf course, so the developer sought and obtained an “unusual use” that same year with the County's Zoning Appeals Board (“ZAB”) adopted a resolution with the condition that a restrictive covenant be recorded that limit the future use of the property to a golf course. This first developer sold to a second developer who, in fact, recorded a restrictive covenant as follows:

The aforedescribed property may only be used for the following purposes:

A golf course and for the operation of a country club which may include a clubhouse, pro shop, locker rooms, swimming pools, cabanas, liquor, beer and wine facilities, dining room facilities, parking, tennis courts, putting greens, golf driving ranges and all other uses incidental thereto.

These restrictions shall continue for a period of ninety-nine years unless released or revised by the Board of County Commissioners of the County of Dade, State of Florida, or its successors with the consent of 75% of the members of the corporation owning the aforedescribed property and those owners within 150 feet of the exterior boundaries of the aforedescribed property.

“[t]hat restrictive covenants running with the land in proper covenant form, meeting with the approval of the Zoning Director, be recorded to ensure that the golf course be perpetually maintained as such....”

Save Calusa, 193. So. 3d at 912.

The property was developed as a golf course, and a “ring” of 140 homes were built around the golf course. These owners in the “ring” paid no dues for the maintenance of the golf course and did not otherwise maintain the course. Id. at 912 – 23. This arrangement stayed in place until the golf course closed in 2011. A later developer sought to re-develop the golf course, and to no one’s surprise, failed to get 75% of the “ring” homeowners to approve the proposed change. Accordingly, the county refused to let the newest developer change the zoning of the parcel. Id at 913. This litigation followed.

II. Case

Rather than filing an administrative challenge to the county’s decision, the owner of the now defunct golf-course filed suit seeking to invalidate the deed restriction under the Marketable Record Title Act (MRTA) and joined the “ring” homeowners and the county. The trial court entered a detailed summary judgment finding for the developer that the restrictive covenants were barred by MRTA. The homeowners and the county appealed to the Third District.

III. Analysis

The Third District reversed and held that the use restrictions were exempt from MRTA:

While we are not unsympathetic to Owner's arguments, we cannot so readily divorce the covenant from the governmental approval process that spawned it. The record reflects that ZAB's approval of Developer's unusual use application for the golf course acreage was final administrative agency action. ZAB's unusual use approval was not a recommendation to the County Commission, but rather, a final approval conditioned on the recordation of the restrictive covenant. The record clearly reflects that the ZAB Resolution imposed a condition that a restrictive covenant be generated and recorded. As the unusual use approval was final as of August 16, 1967, the date of the ZAB Resolution, so was the prescribed restrictive covenant. That the Developer's successor took seven months to record the restrictive covenant is of no significance.

Id. at 915.

In other words, the Third District held the fact that the restrictive covenant arose out of the governmental approval process imbued it with the ability to withstand extinguishment under MRTA since it was now a government regulation. This decision has created a great deal of concern among some because almost all planned subdivision restrictions are created through a “governmental approval process” and could conceivably be exempt from MRTA. The concern is that MRTA is intended to clear land titles and there should be no exceptions to its extinguishment provisions other than those specifically set forth in the statute. Moreover, the Save Calusa opinion contains some imprecise language that restrictive covenants imposed by government do not constitute defects in marketable, a position rejected by most real estate practitioners. The landowners sought discretionary review in the Florida Supreme Court, but its petition was rejected.

IV. Conclusion

It remains to be seen whether Save Calusa Street will be a “one-off” opinion that is limited to its facts, or whether later courts will adopt its view that government-approved restrictive covenants as being exempt from MRTA’s extinguishment provisions. Real estate practitioners are cautioned to be aware of the case and its facts as it has created uncertainty in the application of MRTA.

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