## Facts

- Owners in the Loch Haven Subdivision purchased lots subject to recorded restrictive covenants referenced in their deeds.
- The restrictions were described as real covenants “to run with the land” and bind all owners, heirs, successors, and assigns.
- The restrictions also stated that any owner of any part of the subdivision could sue at law or in equity to prevent violations or recover damages.
- In the same instrument, the developer reserved the right to “approve exceptions or variations” from the restrictions “without notice or liability” to other lot owners or any other person or authority.
- A lot owner (or group of lot owners) sued seeking a permanent injunction to enforce the restrictive covenants against other owners.
- The defendants argued the plaintiffs lacked authority to enforce the restrictions because the developer’s reserved exception power meant the restrictions were not part of a mutually enforceable subdivision-wide plan.
- The Florida Supreme Court accepted review to resolve conflict among district courts on how a developer’s broad retained modification/exception power affects remote-grantee enforcement.

## Issues

1. Whether a developer’s reservation of a broad unilateral power to approve exceptions or variations to subdivision restrictions prevents a remote grantee from enforcing those restrictions against another remote grantee under a common plan or scheme.

## Decision

- The Florida Supreme Court approved the Second District’s decision and resolved inter-district conflict.
- The Court held that the developer’s sweeping reservation of authority to approve exceptions or variations prevented remote grantees from enforcing the restrictive covenants against other remote grantees on a common-scheme theory.
- Because the developer could authorize departures from the restrictions without notice or liability to other owners, the Court concluded the recorded restrictions did not reflect the type of uniform, mutually enforceable plan required for lot-owner enforcement.

## Legal Principles

- Generally, restrictive covenants are not enforceable by someone who was not a party to the original conveyance unless the covenants were imposed by a common grantor for the benefit of all grantees.
- A remote grantee may enforce restrictions against another remote grantee when the common grantor intended a uniform plan or scheme of restrictions benefiting all lots, creating reciprocal rights and duties among owners.
- The instrument must be read as a whole to determine whether the grantor intended a mutually enforceable common scheme.
- A clause giving the developer an unfettered right to approve exceptions or variations—especially “without notice or liability” to other owners—can negate the inference of a fixed, reciprocal subdivision plan and defeat remote-grantee enforcement, even where the document also states the covenants run with the land and are enforceable by any owner.

## Conclusion

In *Nelle*, the Florida Supreme Court held that Loch Haven’s restrictions were not enforceable by one lot owner against another under a common-scheme theory because the developer retained a broad, unilateral right to approve exceptions without notice or liability, which was inconsistent with a uniform, mutually enforceable plan of development.


Nelle v. Loch Haven Homeowners' Association, Inc., 413 So. 2d 28 (1982)