1st Circuit Ruling that fence prohibitions are not extinguished by MRTA where no HOA exists

We live in a Plat where there is no HOA to revive the covenants that expired in 2011. Plaintiff was denied covenant revival by the DEO when they applied anyway, including in their application a false Affidavit stating there is an HOA when in reality none exists.

So: no HOA and Unrevived covenants - yet, we have received a ruling against us by the FL 1st Circuit Court which it states the fence prohibition in our expired covenants was not extinguished by MRTA because it is a "negative easement." The ruling doesn't specify any law, but the Plaintiff argued Guttman v Vanneck, a DCA case which was very different, because in G.v.V. the fence prohibition was in the muniments of title, but not so with ours, where covenants are not mentioned by book or page on the plat map. But G v V "established" that a fence is a negative easement. So they extended that to Easements which are not extinguished by MRTA.

The Plaintiff also claimed an "implied easement" over our property, for use of their customers, although there is no written document to prove, and no history of continuous use, and no necessity for access. Our title insurance defended us in part, but has not agreed to go forward with an appeal.

We are not sure if we should appeal. It depends largely on whether a DCA ruling can be found to support the alternate view: that fences are NOT a "negative easement" that survives MRTA's extinguishment. Such a ruling would provide that fence prohibitions are indeed extinguished by MRTA along with other prohibitions such as parrots prohibitions, trailer prohibitions, etc. We have 14 days to decide whether to appeal.

Do you know of any cases where a DCA ruled that fence prohibitions expire with MRTA? We feel after all this, that the fewer HOA & Covenants the better, since with increasing neighborly aggression these days, they are "petri dishes for corruption." This is why we bought in a plat with no HOA and expired covenants. The Plaintiffs must have a motive we don't know, to spend $40K-$50K in legal expenses to force the removal of our 47 ft county-code-compliant fence which covers 1/3 of our rear boundary, and provides protection, privacy, and other advantages. Even after the ruling, they are sending us heckling letters about other features in our rear yard.

One of the strange elements is that one of the Plaintiffs is someone who has no ownership in the plat, a stipulation in the former covenants for "enforcement." He states he is heir/assigns of the Developer, and has authority to enforce the extinguished covenants. The original Developer is deceased, and 20 years ago sold 100% of the lots. We cannot find any proof that the heir of a Developer (Plaintiff) can enforce extinguished covenants, and we are not sure why the Judge gave him authority to create a "variance" for the fence prohibition. The other Plaintiff is the golf course at the rear which has dozens of fences and high hedges on adjacent properties.....but that precedent didn't seem to matter to the Court.

We are flummoxed because the window for a Rehearing ends tomorrow. Our title insurance attorney only wants to clarify the implied easement issue that wasn't addressed in the ruling (through a Rehearing motion). Our title insurance attorney doesn't have a lot of experience with MRTA, and really isn't in a capacity to advise us.

Do you know of a situation where expired covenants allow a Developer continued authority to "enforce" covenants?

Do you know of MRTA extinguishing of a fence prohibition, please?

If we appeal, a landmark case could establish that fence prohibitions are also extinguished by MRTA. Thanks so much for your help.

Thank you, our Title-insurance appointed attorney has withdrawn. An appeal would be pro se. We are not asking for legal advice, rather, for knowledge of any caselaw that would give us information for a our decision. Thanks.

This sounds complicated and you've waited until now, a day before your window for a Rehearing ends, to ask around for help?

I found a link that may help, but the article itself says if you're looking for information on "negative easements" you're probably in law school.

https://thetampainjurylawyers.wordpress.com/2012/06/27/the-difference-between-a-negative-easement-and-a-restrictive-covenant-it-could-mean-trouble/

If you're flying by the seat of your pants pro se in this you might consider cutting your losses and throwing in the towel before spending a ton of money to achieve an uncertain outcome. MRTA can be complicated, negative easements can be complicated, and with deadlines so near... I wouldn't even know where to start outside of jumping in a time machine and going back several months and hiring a good lawyer.

Good luck to you. I think you'd need, at a bare minimum, access to a service that will allow you to search DCA rulings in Florida.

From what I was able to find after a quick online search, in Guttman v Vanneck even the courts are confused about such matters!

http://www.floridasupremecourt.org/clerk/briefs/2009/1401-1600/09-1556_JurisIni.pdf

UPDATE:
We decided not to pursue an appeal, but rather a Bill in Legislation that addresses the issue for others,
as well as for ourselves.

Here's the website. The website has a
https://clarifymrtaprop.wixsite.com/negativeeasements

If you have a disbanded HOA, or no HOA and expiring/expired covenants, this will be very important to you.

If you are an attorney, here are the nuts and bolts of it:
A DCA ruling has become a bellweather, creating a precedent that “un-extinguishes” MRTA-extinguished covenant prohibitions, even when Municipalities allow, no HOA prohibits, and DEO has denied revitalization. Now, in some circumstances a fence - and possibly other constructions, even buildings - can be forcibly removed by a neighbor, due to a precedent in a Court of Appeals in Guttman v Vanneck 15 So. 3d 813 (Fla. 4th DCA 2009) that directs Trial Court rulings. The application falls in a bandwidth of plats that have expired covenants due to MRTA, and no HOAs to support or govern revitalization. The loophole comes about by the application of the term “negative easement” to both setback prohibition (Fiore v. Hilliker, 993 So. 2d 1050 (Fla. 2d DCA 2008), and a fence prohibition (Guttman v Vanneck).

Shockingly, the ruling could be exploited in this way: a new construction home is completed in the Plat where the suit established the “un-extinguishment” of expired setback Covenants, classifying them as “permanent negative easements.” The new home violates the ruling’s stipulation for 50 ft setbacks that now, are no longer deemed extinguished by the “negative easement” application. The builder’s current setbacks are only 30 ft, compliant with County requirements. Yet, a neighborhood litigant can now file suit against the Builder for Covenant enforcement, and due to the previous DCA rulings, the trial court’s “decision tree” would direct compliance with enforcing the setback of 50 feet, thus issuing an injunction to demolish the front 20 feet of the Builder’s new spec house. A litigant could in effect hold the Builder’s feet to the fire and demand “ransom” to not pursue a successful suit, due to the precedented Ruling.

In 2013, Michael Allan Wolf, University of Florida Levin College of Law discussed “the ‘term creep’ problem that has long plagued the Anglo-American common law of real property, that is, the tendency of common law courts (and in turn commentators and legislators) to use the same label to describe two or more conceptually discrete, though related, concepts.”

Negative easement is an iconic example of “term creep,” or simply, using catch-all phrases imbued with powers imbued by Case Law. In Guttman, the muniments of title were significantly distinguished from the case where it was later applied, EMCR2 v Kostelny (FL 1st Circuit Okaloosa County Civil). Comparing, in Guttman, the muniments showed the restriction of the prohibited fence; in EMCR2, however, the covenants were not listed by Book and Page number on the Deed – not “inherent” in the deed, and not containing a specific criteria necessary for revitalization. Yet the DCA cases established that the term “Negative Easement” applied to fences and setbacks, and therefore to the expired “Prohibition on Fences” to Kostelny’s lot. “Term creep” of unextinguishable “negative” easements therefore crept out from what might even be considered obiter dictum or adjectives during those DCA cases.

But without pinpointing an exact source, the new phrase “Negative Easement” has now been re-coined as a power play to supercede MRTA. If MRTA isn’t clarified with a new Legislative Bill on “Negative Easements,” then Case Law may be extended to reviving even more “dead” covenants besides fences and setbacks. Squabbling neighbors seeking to enforce personal preferences in expired covenants will gain injunctions because of the authority of Case Law, the hierarchy of Civil procedure, and a claim of the superceding, omnipotent unextinguishability of “Negative Easement.”

Aside from the stress and expense of lawsuits, loopholes like this DCA ruling give unprecedented policing powers to neighbors, without any democratic HOA governing documents. Typically when Covenants are expired and there is no HOA, property use is supervised by Counties or Cities through code enforcement. Left to litigious neighbors, suits can become punitive and senseless over personal preferences. Expired covenants sometimes contain quite petty prohibitions to enforce, such as owning no more than two pets, keeping uniform mailboxes, displaying no political or school spirit signs, prohibiting home businesses, and the ubiquitous trailer-in-the-driveway taboo. And that’s why MRTA was enacted in the first place – after 30 years, real property has a relief from those kinds of burdens.

Case Law and the “term creep” of “negative easement” is trending to let dissenting neighbors become vigilante enforcers, leading to mushrooming civil cases and even more overburdened Courts. Ultimately, taking property rights from unwilling parties is a Fifth Amendment issue, therefore, scaled up, the application of the semantic term “negative easement” has a disturbingly powerful effect.

Efforts are underway to propose a bill in 2018 to define MRTA in regard to negative easements as they are connected to extinguished, unrevivable covenants. Interested parties can contact your legislators to encourage Bill sponsorship.

Looking for support! Approaching Julio Robaina and others who have had balanced views toward minimizing HOA legal dramas, etc.
Meetings with two local legislators are scheduled for June & Aug.
Please feel free to contact us through the contact link on the website https://clarifymrtaprop.wixsite.com/negativeeasements