So many of you live in communities that are
actually on a golf course or are adjacent to a golf course.
While some of you purchased your home because you actually play
golf, more of you purchased because you like the golf course
view. You expected to have that view for as long as you own the
property. In fact, you would think that you have the right to
expect that view, especially when there is a restrictive
covenant on your property requiring the owner of the golf course
property to keep it that way.
Here’s the potential problem. Golf is a dying
game. It was much more popular when Nicklaus, Palmer and
especially Tiger Woods were tearing up the course. They aren’t
any longer and nobody seems to be playing golf any longer. As a
result, these golf courses are no longer profitable and the
owners want to turn them into additional homes. The question
is…can they do it?
In a brand new case called Victorville West
Limited Partnership v. The Inverrary Association, Victorville
purchased a golf course property in 2006. The golf course had a
restrictive covenant on it that required the golf course to
solely be used for sports. The developer now said that he wants
that restrictive covenant canceled because it was no longer
profitable. The community association wouldn’t take a vote to
authorize the cancelation of the restrictive covenant. The
developer then sued, arguing that under Florida law, the
restrictive covenant can be canceled because there has been a
substantial change in circumstances such that the covenant's
purpose can no longer be carried out and that the covenant is an
unlawful restraint on alienation.
At trial, some of the unit owners testified
that they like the golf course because it provided a tranquil
view, prevented overcrowding and preserved the nature of the
The Appeals court held for the Inverrary
residents, specifically stating that the covenant still provides
them with all of the benefits they testified to. Even if the
golf course is failing financially, the covenant must be
enforced because it remains a “substantial value to the
surrounding residences.” Nothing in the agreement anticipates
that the golf course is going to be profitable.
It’s really amazing to watch The Florida
Legislature routinely protect the rights of developers, but The
Florida Courts protect the rights of the owners. The Florida
Legislature bends over backwards to help developers. This time,
the Courts helped the little guy.
I’m not so sure this particular battle is
over though. Here is what the covenant actually says:
The [Golf Course] shall henceforth be used
solely for recreational purposes, including all sports as
defined herein, and for the Facilities and amenities appurtenant
thereto, such as clubhouses and recreational, maintenance, and
storage facilities and equipment. For the purposes of this
Declaration, the term “sports” shall be deemed to include, by
way of illustration and not in limitation thereof, the
following: Golf, tennis, horseback riding, swimming and all such
other recreational activities as may be appropriate and in
keeping with the overall development of Inverrary...
The developer may still have some choices and
some tricks up his sleeve. The covenant apparently does not
require the property to remain as a grass area. He can threaten
to black top it all and turn it into basketball and tennis
courts. That might get the owners to sit down and talk and buy
the developer out. He can make the owners a cash settlement
offer in exchange for a release from the covenant. Or…. He can
simply cut his losses, sell the property and get out of the bad
deal he apparently made. There’s lots of cases out there that
say it’s not the job of a court to relieve someone from a bad
deal they made. So, let’s see what happens.
Just know, as it becomes more and more
difficult to fund the operation of a golf course, your
communities will be faced with these very same issues. Now at
least you have an appeals court opinion that gives you some
ammunition against a developer looking to steal the peace and
serenity you purchased.