In Miami, the local circuit court has recently ruled that the owner of the Calusa Golf Course is no longer bound by a covenant that the property could only be used for a golf course. Adjoining homeowners are livid.
The owner intends to convert the land into a top-notch hospice facility. Zoning is still an obstacle for the owner, as is the likely appeal of the trial court’s ruling. But unless things change, there will be development on the land and the 248 homeowners in the Kendall area will see their home values fall. The golf course closed in 2011 after operating at a loss for six years.
For the last eight years, more golf courses have closed than have opened. The National Golf Foundation reports that the number of people playing golf peaked in 2003 and has since fallen 16 percent. The continued economic viability of golf courses is in danger. Locally, at least one golf course closed completely, although it has reopened.
At the same time, the value of such land has risen. New development in Florida is starved for good land, as few new developments were completed during the recession. And golf courses that are under restrictions find that those restrictions are expiring.
That was the case at Calusa. There was a 1968 restriction that the land could only be used for a golf course, and that was to last for 99 years unless 75 percent of the adjacent homeowners voted to lift it. Further, the county had gone along with that restriction in permitting the golf course.
But the court ruled that the Marketable Record Title Act defeated that restriction and the land was no longer burdened by that limitation. The court went further and said that by embracing the requirement of a 75-percent vote by the adjoining property owners, the county had abdicated the zoning process to the residents.
The golf course owner had tried to obtain the consent of the homeowners, it is reported. The developer offered homeowners $50,000 each to make up for any loss in value and offered to build a three-mile park around the development. When that failed, the owner sued the homeowners and the county, and won, at least at the trial level.
The importance of that ruling really is not whether the land will continue as an open area, golf course or not, and not whether the Marketable Record Title Act controls. It is really the frustration of the abutting land owners over the fact that they did not have any rights, other than opposing rezoning, concerning land that was vital to them and the value of their land.
We have opined for decades that homebuyers and REALTORS® should never, ever assume what will happen to abutting property owned by others. This has happened when homebuyers value an adjacent forest only to have it destroyed with the construction of schools, homes, and power stations.
If it is important to you, then you need to check it out. And even then, circumstances may change. The public boat ramp you value may close. The quiet you relish may come with a harsh awakening. But what is really important is at least to perform some investigation into abutting property and its uses; do not just assume.
Lastly, it is probably prudent under Johnson v Davis for a home seller and REALTOR® to now disclose to a prospective buyer any information that suggests that important adjacent or nearby land may be about to be used in a different manner, if it is substantial and may adversely affect the value of the seller’s home.
Joe R. Boyd
TBR Legal Counsel
Board Certified Real Estate Attorney
Boyd & DuRant, P.L.