Mandatory Injunction to Comply with Restrictive Covenant Reversed in Part
Boyle v. Hernando Beach South Property Owners Association, Inc., 5D12-2993 (Fla. 5th DCA 2013):
Boyle is the owner of a residence in a subdivision that is subject to a restrictive agreement (“Agreement”). The Agreement requires that lot owners keep their lots in a neat, clean and orderly condition and that any violators may be subject to an equitable suit to enforce the restrictions. The Hernando Beach South Property Owners Association, Inc. (the “Association”) initiated an action against Boyle that sought a mandatory injunction requiring him to comply with the Agreement.
The Association obtained an injunction after filing a Motion for Summary Judgment. The mandatory injunction required Boyle to comply with the Agreement by “properly maintaining and trimming the landscaping and trees and cleaning or removing the mold on the home.” If Boyle failed to comply, the Association could enter and maintain the property and place a lien on the property that could be foreclosed if the costs incurred by the Association in bringing the property up to standard were not paid.
Boyle appealed contending that material issues of fact remained unresolved and that the supporting affidavits were insufficient. The supporting affidavits were of five officers and directors of the Association stating that Boyle failed to properly maintain his lot within Hernando Beach, Unit 13-B. Boyle argued that the summary judgment evidence in the record did not indicate how he was in violation of the Agreement.
The Fifth District agreed with Boyle regarding the landscaping and trees. There were no allegations or evidence to show how the landscaping and trees had not been properly maintained and trimmed. It was unclear how Boyle violated the Agreement and what steps he needed to take to ensure that his landscaping and trees were in compliance. On the other hand, the mold on the house was established by the statements made in the affidavits. The existence of mold on the home was a readily observable fact and was not refuted by Boyle.