Sheres v. Genender

Citations: 965 So. 2d 1268; 2007 WL 2935394Docket: 4D06-3363

Court: District Court of Appeal of Florida; October 10, 2007; Florida; State Appellate Court

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Allan and Claire Sheres (the Shereses) appealed the trial court's decisions, which included granting partial final summary judgment to Richard and Carla Genender (the Genenders) on their counterclaims and granting final summary judgment against the Shereses' amended complaint. The Shereses also contested the summary judgment in favor of Greenberg Traurig, P.A. The court clarified that it lacked jurisdiction to consider the Shereses' appeal regarding the denial of their summary judgment motion due to appellate procedural rules. 

The case originated from a 1999 lawsuit involving the Genenders, Pinetree Homes, previous homeowners Bruce and Sharon Pearl, the Kolter Corporation, and the Woodfield Country Club Homeowner's Association, Inc. (Woodfield HOA) and The Enclave at Woodfield Country Club, Inc. (Enclave HOA). The Genenders claimed that the construction of the Shereses' house violated the Woodfield Country Club Master Plan and subdivision plat requirements for zero lot line single-family homes, as the house was built approximately three and a half feet from the property line with windows on the side wall. 

To resolve the dispute, the Genenders reached a settlement with the Pearls, their successors, the Maruns, the Woodfield HOA, the Enclave HOA, and the Kolter Corporation. The settlement stipulated the construction of a privacy wall, installation of motion detector lights, adjustments to a light fixture, and removal of hedges that obstructed the Genenders' view. Additionally, the Maruns were required to execute and record the Declaration of Covenants and Easement Agreement as part of the settlement. The appellate court ultimately reversed the orders granting summary judgments.

The settlement agreement mandates that the Maruns are financially responsible for the construction, maintenance, repair, reconstruction, and insurance of the Privacy Wall, explicitly stating that neither the Homeowners Association nor the Enclave Homeowners Association has any obligations related to these responsibilities. The Maruns are also prohibited from adding windows or changing glass blocks to clear glass on the side of their house facing the Genenders' lot. The declaration, which is separate from the settlement agreement and made solely by the Maruns and Genenders, obligates the Maruns and their successors to fulfill these responsibilities in exchange for an easement on the Genender property. The Genender parcel owner is the only party with the right to seek an injunction against violations by the Maruns. The declaration can be modified with written consent from both property owners.

The Shereses, who purchased the home from the Maruns in 2003, claim they were unaware of the unrecorded restrictions until after closing when the Genenders objected to their request to remove the alcove wall. Following this, the Genenders' attorney informed the Shereses that removing the alcove wall would violate both the settlement agreement and the declaration. Consequently, the Shereses sought a declaratory judgment to assert they were not bound by either document and requested an injunction against the Genenders and associations regarding the alcove wall's removal. In response, the Genenders filed counterclaims against the Shereses and claims against the Maruns and other parties, arguing that the Shereses had notice of the restrictive covenants before purchasing the property and that they were obligated to comply with the agreements as members of the Woodfield Country Club and Enclave HOA. The Genenders also contended that even if the Shereses were not bound by the agreements, the associations could not allow them to remove the alcove or privacy walls.

The trial court granted the Genenders' motion for partial final summary judgment, concluding that the Shereses had both actual and inquiry notice of the property's restrictive covenants. The court referenced Sapp v. Warner, which identifies two types of actual notice: express actual notice, based on direct information, and implied actual notice, inferred from a person's ability to obtain knowledge that they failed to pursue. The Shereses contested that they lacked express actual notice, as they claimed never to have been informed about the restrictions.

The trial court found implied actual notice based on various factors: Claire Sheres's experience as a real estate agent, her prior residence in similar subdivisions, and her observations of a large privacy wall before purchasing the property. Despite her real estate background, the appellate court disagreed with the trial court's reliance on her status in 2005 to determine that she should have inquired about restrictive covenants prior to the 2003 purchase. The appellate court deemed this a material question of fact for a jury to resolve.

Additionally, while the court acknowledged that seeing the privacy wall could indicate some restrictions, it concluded that such observation could not imply knowledge of all specific restrictions, such as those related to the alcove wall or landscaping. The appellate court found that the Genenders had not conclusively demonstrated the absence of material factual questions regarding implied actual notice, leading to the conclusion that the trial court erred in granting summary judgment based on that doctrine. The responsibility for proving the lack of genuine issues of material fact lies with the party moving for summary judgment.

The Florida Supreme Court established that a person can be charged with inquiry notice only if the circumstances would reasonably prompt further inquiry. In a relevant case, the Florida East Coast Railway had inquiry notice about an easement due to visible construction. In contrast, Claire Sheres' observation of a privacy wall did not provide sufficient grounds for inquiry notice regarding unrelated restrictions, and whether it indicated the wall's permanent nature is a factual question for a jury. The documents received by the Shereses, including an Affidavit of No Lien and a Seller's Property Disclosure, contained contradictory statements about easements and restrictions, creating a jury question rather than warranting summary judgment by the trial court. The trial court also erred in concluding that the settlement agreement and declaration legally bound associations to deny the Shereses' request to alter the walls. While the associations may have restrictions, this does not preclude the possibility of damages due to the law firm's failure to record the declaration, and the court's determination regarding the associations' ability to consent to wall alterations was premature. Consequently, the court reversed the orders for summary judgment in favor of the Genenders and Greenberg Traurig and remanded for further proceedings.