Europco Mgt. Co. of America v. Smith

572 So. 2d 963, 1990 WL 205335
CourtDistrict Court of Appeal of Florida
DecidedDecember 17, 1990
Docket90-1392
StatusPublished
Cited by14 cases

This text of 572 So. 2d 963 (Europco Mgt. Co. of America v. Smith) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Europco Mgt. Co. of America v. Smith, 572 So. 2d 963, 1990 WL 205335 (Fla. Ct. App. 1990).

Opinion

572 So.2d 963 (1990)

EUROPCO MANAGEMENT COMPANY OF AMERICA, Appellant,
v.
Stephen W. SMITH and Ruth R. Smith, Appellees.

No. 90-1392.

District Court of Appeal of Florida, First District.

December 17, 1990.

*964 D. Michael Chesser, of Chesser, Wingard, Barr, Whitney, Flowers and Fleet, Shalimar, for appellant.

C. LeDon Anchors, of Anchors, Foster and McInnis, Fort Walton Beach, for appellees.

ZEHMER, Judge.

Europco Management Company of America appeals a final order, entered at the end of the plaintiff's case in a nonjury trial, dismissing its action for a mandatory injunction to enforce certain protective covenants of the Southwind II housing development against homeowners Stephen and Ruth Smith. We reverse, holding that the evidence presented by Europco was sufficient to establish a prima facie case.

Europco is the owner and developer of Southwind II, a 200-acre golf course subdivision containing single-family, high-priced homes.[1] Protective covenants, which have been recorded in the official records of Okaloosa County and run with the title to the land in Southwind II, contain various restrictions on the use of the land in the subdivision and the construction and alteration of the structures built thereon. The covenants principally involved in this case recite that:

(4) MINIMUM SQUARE FOOTAGE FOR ANY PRINCIPAL RESIDENCE... . (c) No lot clearing or construction of any kind, including but not limited to construction of main structure, garages, fences or ancillary structures, shall be permitted to commence or allowed to remain on any lot until the plans, design, colors and location of said improvements on the lot have been approved by Developer acting through the Bluewater Bay Architectural Review Committee or such other representative as Developer may designate from time to time.
* * * * * *
(5) OTHER STRUCTURES. Construction of structures other than the main residence and a garage shall not be permitted on any lot of the Subdivision except for the following ancillary structures which may be permitted subject to approval by Developer of location, architectural design and exterior finishes: pet house (up to 25 square feet and not more than 5 feet high), hothouse or greenhouse (up to 100 square feet and not more than 15 feet high), poolhouse, outdoor fireplace or barbecue pit (up to 9 square feet and not more than 10 feet high), and swimming pools and mechanical installation in connection therewith. Any such ancillary structures permitted *965 hereunder shall be attractively landscaped, constructed in a harmonious design with the main structure and located only in the lot area to the rear of the main residence and not visible from the street. No ancillary structure shall be built or placed on a lot until the quality, style, color and design have been approved by the Developer in the manner provided for herein.
* * * * * *
(9) DESIGN AND LOCATION OF IMPROVEMENTS AND TREE REMOVAL TO BE APPROVED BY DEVELOPER. For the purpose of further insuring the development to be a residential area of highest quality and standards, and in order that all improvements on each lot shall present an attractive and pleasing appearance from all sides of view, the Developer reserves the exclusive power and discretion to control and approve the landscaping plan and the location on the lot and design of all building, structures and other improvements to be built on each lot. Included in the power and discretion to approve such design is the right to approve the architectural design, appearance, color, finish and materials of all exterior building surfaces. A lot owner shall be required to submit such information as Developer may request in order to facilitate Developer's approval process. One set of the plans required to be submitted for approval will be retained by Developer. If the finished building or other structure does not comply with the approved plans, Developer retains the right to cause the necessary changes to be made at owner's expense, the cost of which shall be a lien upon the property involved. Any changes in plans must first be reapproved by the Developer in accordance with the procedures specified from time to time by Developer... .

(Emphasis added.)

The Smiths purchased a home in Southwind II and required, as a condition of the sale, that the builder add a screen porch to the rear of the house. The builder, however, did not obtain the developer's approval before completing the addition and consummating the sale transaction. Subsequent to the purchase transaction, Europco sought an injunction against the Smiths on the ground that they had caused an addition to their house to be built without first seeking approval as required by the protective covenants. Europco further alleged that when approval was eventually requested, it was denied because the addition violated the developer's established policy prohibiting additions constructed of a design and material different from that of the primary structure. The complaint requested an injunction requiring the Smiths to either remove the addition or make it comply with the protective covenants and the builder's policy. The Smiths' answer denied the essential allegations of the complaint and raised the affirmative defenses of estoppel and laches.[2]

At trial, Jerry Zivan, the chief executive officer of Europco, testified that he had created an advisory committee for the architectural review of projects in Southwind II, and that the committee consisted of 3 representatives of the developer, 5 representatives of the homeowners, and 2 other representatives. Zivan testified that on July 16, 1987, the architectural review committee was making a routine inspection for an application involving property in Southwind II when a member noticed Mr. Barber, a contractor, constructing an addition on the back of a house. Zivan talked to Barber, confirmed that no request for approval of the addition had been submitted, and requested that Barber immediately cease construction. Barber agreed to stop work on the addition, and submitted an application for approval of the addition to the committee that day. One week later, as part of their review of the application, the committee visited the house and found the addition had been completed. Zivan *966 instructed the committee that they were not to consider the fact that the addition was completed without committee approval; rather, they were to apply the same standards in reviewing the application that would otherwise be applied. Zivan testified that the committee rejected the application because the materials used on the exterior of the addition were not harmonious with those used on the exterior of the primary residence (horizontal cedar lap siding on the addition, brick and stucco on the original structure), and because the primary residence had 16" to 24" roof overhangs whereas the addition had none. Zivan testified that he subsequently met with Barber and John Recher, a real estate broker representing the Smiths, who then had made a contract to purchase the home. Zivan informed Barber and Recher of the committee's rejection of the application and asked that the house be made to conform to the restrictions. Barber and Recher requested permission to complete the painting of the addition so that the Smiths could close on a permanent loan, and promised to thereafter make whatever changes were necessary.

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Cite This Page — Counsel Stack

Bluebook (online)
572 So. 2d 963, 1990 WL 205335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/europco-mgt-co-of-america-v-smith-fladistctapp-1990.