Don Cesar Property Owners Corp. v. Gallagher
FL · Florida Second District Court of Appeal
Member win · other
What happened
Don Cesar Property Owners Corporation sought to enforce a covenant that property shall be 'for residence only' to block townhouse condominium development by the Gallaghers. The trial court refused enforcement. On appeal the Second DCA affirmed per curiam: the covenant restricts use/occupancy mode rather than building form and does not prohibit townhouse condominiums, and in any event ample evidence supported findings of acquiescence, waiver, and abandonment barring enforcement.
What the court (or agency) held
A covenant that property shall be 'for residence only' restricts use/occupancy mode, not building form, and does not by itself prohibit townhouse condominiums. Separately, the Second DCA affirmed that the association could not enforce the covenant because of acquiescence, waiver, and abandonment—classic abandoned-enforcement grounds later cited alongside selective-enforcement authorities such as Kenyon.
Why this matters for members
Residential-use covenants are often about occupancy mode, not structure type. Longstanding nonenforcement can waive or abandon covenant rights even when the text might otherwise apply.
Questions for the board
- Does 'residence only' language in our covenants address use, structure type, or both?
- Have similar structures or uses been allowed without enforcement?
- What record shows consistent enforcement versus acquiescence?
Questions for a lawyer
- Is this covenant a use restriction or a structural prohibition?
- Do waiver, acquiescence, or abandonment defeat enforcement on this record?
- How should selective-enforcement authorities interact with these facts?
Citation
Don Cesar Property Owners Corp. v. Gallagher, 452 So. 2d 1047 (Fla. 2d DCA 1984) (1984-07-06). Florida Second District Court of Appeal. Outcome chip: architectural hub / secondary. Source: https://exa.ai/library/legal/opinion/sjqxnlk8rf9yv6bh25vk35d5
_General information, not legal advice. Outcomes turn on facts and current law._
General information, not legal advice. Outcomes turn on facts and current law.