Judges: PER CURIAM.
Attorneys: Baker Baker, and Martin Sack, for Appellant;
Raymond D. Knight, John M. McNatt and Knight, Adair, Cooper Osborne, for Appellees.
Filed: Nov. 15, 1938
Latest Update: Mar. 02, 2020
Summary: In 1921, a tract of land in the City of Jacksonville was subdivided into more than 1000 lots, was platted and designated as Avondale, and put on the market as a restricted residential subdivision. The restrictive covenant involved in this litigation was written in all deeds as sales were made and is as follows: "2. That said land shall be used only for residential purposes, and not more than one residence and the outbuildings thereof, such as garage, stable, servants' house and like outbuildings
Summary: In 1921, a tract of land in the City of Jacksonville was subdivided into more than 1000 lots, was platted and designated as Avondale, and put on the market as a restricted residential subdivision. The restrictive covenant involved in this litigation was written in all deeds as sales were made and is as follows: "2. That said land shall be used only for residential purposes, and not more than one residence and the outbuildings thereof, such as garage, stable, servants' house and like outbuildings,..
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It is rather remarkable that in a residential subdivision containing more than 1000 lots and more than 18 years old, the only allegation of a violation of the restrictive covenants concerns only one lot, and that allegation is that on the lot adjoining plaintiff's lot there is a building, originally designed and used as a dwelling, which for several years has been occupied and used as a florist's shop without objection by the defendant. This very limited and unsubstantial violation of the restrictive covenants would not authorize their cancellation. Stephl v. Moore, 94 Fla. 313; 114 So. 455.
As to the changes wholly outside of the restricted area, these will not authorize a court of equity to cancel or refuse to enforce the covenants, unless the influence of the changes upon the restricted area are such as to clearly neutralize the benefits of the restrictions to the point of defeating the objects and purposes of the covenants. I think this proposition is supported by the modified rule laid down in Barton v. Moline Properties, Inc., 121 Fla. 683, 164 So. 551, 103 A.L.R. 725. See also Sandusky v. Alsop, 131 Abl. (N.J.) 633; Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 P. 132; Rombauer v. Compton Heights Christian
Church, 328 Mo. 1, 40 S.W.2d 545. See also notes in 54 A.L.R. 830-32 and 85 A.L.R. 993-94.
The fact that the plaintiff's lot has been zoned by the City for business purposes does not abrogate the restriction nor impair the lawful contract rights created thereby. Ludgate v. Sumerville, 121 Oregon 643, 256 P. 1043, 54 A.L.R. 837; Bachman v. Calpaert Realty Corp. (Ind.) 194 N.E. 783, 789.
I think therefore that the order of the court below dismissing the bill was clearly correct and should be affirmed.
BUFORD, J., concurs.
