## Facts

- Winn-Dixie operated as the anchor grocery tenant in a shopping plaza under a lease with the landlord, Crest Haven, L.L.C.
- The lease granted Winn-Dixie an exclusive right to sell groceries in the plaza, allowing other tenants to sell grocery items only if they used no more than 500 square feet for such items.
- The lease stated that its provisions were “deemed” covenants and conditions running with the land and binding successors and assigns.
- A short-form lease memorializing the grocery exclusive and including a legal description of the property was recorded in the county public records and appeared in the chain of title.
- Dolgencorp later leased space in the same plaza for a Dollar General store and devoted more than 500 square feet to grocery items.
- The landlord declined to enforce the exclusive against Dolgencorp, and Winn-Dixie sued the landlord and Dolgencorp seeking injunctive and related relief.
- The trial court entered summary final judgment for Dolgencorp.

## Issues

1. Whether the grocery exclusive was a covenant running with the land (rather than a personal landlord-tenant promise) and therefore enforceable against a later tenant.
2. Whether Dolgencorp had sufficient notice (constructive, actual, or implied actual) of the exclusive to be bound by it.
3. Whether Florida Statutes § 542.335 (restrictive covenants) barred enforcement of the grocery exclusive.

## Decision

- The appellate court reversed the summary final judgment for Dolgencorp and remanded for further proceedings.
- Viewing the record in Winn-Dixie’s favor, the grocery exclusive could qualify as a real covenant running with the land and be enforced against Dolgencorp as a subsequent tenant with notice.
- The recorded short form supported constructive notice, and evidence of industry practice and Dolgencorp’s familiarity with anchor-tenant exclusives supported implied actual notice sufficient to defeat summary judgment.
- Section 542.335 did not invalidate the exclusive because it functioned as a real property use covenant rather than a personal services restraint.

## Legal Principles

- A covenant may run with the land when: (1) it touches and concerns the land, (2) the original parties intended it to bind successors, and (3) the party to be bound took with notice.
- A use restriction in a shopping center lease can touch and concern the land when it affects the use and value of the leased premises and the shopping center.
- Clear “run with the land” language in the lease is strong evidence of intent to bind successors, and recordation of a memorandum can supply constructive notice in the chain of title.
- Notice may be constructive, actual, or implied actual; implied actual notice may be supported by facts indicating the party should have recognized the likelihood of such recorded restrictions in the commercial context.
- Florida’s restrictive covenant statute does not necessarily govern or void real property use covenants recorded and asserted as servitudes.

## Conclusion

The court held that Winn-Dixie’s recorded grocery-exclusive provision could be treated as a covenant running with the land and enforced against a later tenant with notice, making summary judgment for Dolgencorp improper and requiring remand for further proceedings.


Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So. 2d 261 (Fla. Dist. Ct. App. 2007)