Annexation and re-zoning

by larry simon
(Zephyrhills Fl.)

Visitor Question: I have a 15 acre property which is being annexed and potentially re-zoned from Pasco County, Florida to Dade City, Florida, but the property has a deed restriction which applies to my property and four other properties only.

If I get 75% approval from the property owners can this restrictive covenant be removed? The deed restrictions allow one home per acre but no commercial activities.

Can the property be re-zoned to commercial use with the deed restrictions on it as it is also being annexed out of the county where the deed restrictions were imposed in the first place?

Editors Reply: The simple answer to the question posed in your last paragraph is yes. We are not attorneys; we are planners. However, almost everywhere in the U.S. rezoning proceeds with little to no regard for deed restrictions, especially if the restriction pertains to only five properties.

The problem here is that as we often advise, property owners need to comply both with zoning, which is assigned on the basis of a public process and enforced by the local government in question, and with deed restrictions, which are only privately enforced (with an exception for Texas and possibly a few others).

By private enforcement, we mean that someone would have to bring a lawsuit or other legal action requesting an injunction to enforce the covenant.

So if the annexation proceeds, and a new zoning classification is approved after public hearings, and yet the deed restriction remains in place, you will still be bound to a residential only land use unless you want to risk the possibility for some current or future property owner to bring a lawsuit to attempt to enforce the covenant.

Another complicating factor is that under Florida law, deed restrictions can expire in 30 years, but for all the details, qualifications, and asterisks to that statement, see Chapter 712 of your state statutes about marketable title. It could be that the deed restrictions will expire soon in the natural course of things, so that is something to be aware of in your situation.

Another question you asked was whether the deed restriction could be removed by 75 percent of the property owners. Without taking a dive into Florida law, which would be against our policy on this website, our advice would be to look at the restrictive covenants themselves to see if they tell how restrictions can be removed. If there is language about the 75 percent, follow that procedure exactly and don't take any shortcuts. Make sure that your resulting change is filed in the county of record, and you should be good. You will need a short consultation with an attorney to make sure this is done properly, especially in light of your comment about the restriction having been filed in a different county.

We have given you a couple of assignments, including figuring out the procedure for changing deed restrictions and talking to the neighboring property owners, if you haven't. As you no doubt appreciate, commercially zoned property commands a higher price than residentially zoned land, so this is worth a bit of your attention. Since there are only four other owners involved, this may be relatively easy. In Florida there are usually a number of attorneys who are well practiced in land use and real estate law, so it should not be much of a chore to find one. This may be a relatively easy matter to resolve if you are looking for a conversion of your land to commercial use.

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