Allen v. Avondale Co. , 135 Fla. 6 ( 1938 )

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.