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The limitations period on challenging an amendment to a restrictive covenant applies even though the amendment is alleged to be void because it was invalidly enacted.

April 1, 2016
Hilton v. Pearson, No. 1D15-440, 2016 Fla. App. LEXIS 1813 (Fla. 1st DCA Feb. 10, 2016)

Homeowners in the Paradise by the Sea subdivision filed suit in 2015 against the subdivision’s governing body to invalidate 2001 and 2005 amendments to its original restrictive covenants. They argued that the amendments were null and void because they were enacted without the proper procedure, including not being voted on and not being unanimously approved. Other owners intervened and sought summary judgment on the ground that the suit was untimely. The plaintiffs argued that the restrictive covenant amendments themselves were not properly enacted and so a time bar premised on a passage of time from enactment did not apply. The First District Court of Appeals sided with the interveners and adopted the Fourth District Court of Appeal’s opinion in Harris v. Aberdeen Property Owners’ Association, 135 So. 3d 365 (2014). The court squarely held that any challenge to an amendment to restrictive covenants must be brought within five years of the recording of the amendment, “even if the suit alleges that the amendment was void because it was not properly enacted.”

 

Case Law Alerts, 2nd Quarter, April 1, 2016

Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2016 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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