Question 1

What is a negative covenant in Florida real estate?

Accepted Answer

A negative covenant (also called a restrictive covenant or deed restriction) is a promise by a property owner NOT to do something with their property. Examples: not to build above a certain height, not to use the property for commercial purposes, not to alter the exterior of the building without approval, and not to keep certain animals. In Florida, negative covenants are commonly found in: subdivision deed restrictions, HOA and condominium declarations, and conservation easements.

Question 2

How are negative covenants enforced in Florida?

Accepted Answer

Enforcement: negative covenants that "run with the land" (bind subsequent owners) are enforceable if: the covenant was in writing (usually in the deed or declaration), the original parties intended the covenant to bind successors, the covenant "touches and concerns" the land (relates to the use or enjoyment of the property), and there is privity of estate (the parties are in a grantor-grantee relationship). In Florida, the HOA or condominium association typically enforces restrictive covenants through: written notice of the violation, an opportunity to be heard (due process), fines (up to $100/day for HOAs under Section 720.305), and injunctive relief (a court order requiring compliance).

Question 3

Can negative covenants be modified or removed in Florida?

Accepted Answer

Modification: covenants can be modified by: amendment of the declaration (typically requiring a supermajority vote of the property owners, as specified in the declaration), court order (if the covenant is outdated, the court may modify or remove it through a declaratory judgment action), merger of the benefited and burdened properties (if one owner acquires both properties), and expiration (some covenants have a specified term; the Marketable Record Title Act, Chapter 712, can extinguish old covenants that are not properly preserved). The Florida Supreme Court has held that covenants are strictly construed in favor of the free use of property.

Negative Covenant in Deed Restriction

Negative Covenants and Deed Restrictions in Florida

Examples

Enforcement

Modification/Removal

Related Terms

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