Supreme Court of Florida

____________

No. SC19-1371

____________

SHANE R. HAYSLIP, et al.,

Petitioners,

vs.

U.S. HOME CORPORATION,

Respondent.

January 27, 2022

LABARGA, J.

This case is before the Court for review of the decision of the 

Second District Court of Appeal in Hayslip v. U.S. Home Corp., 276 

So. 3d 109 (Fla. 2d DCA 2019), which certified the following 

question as one of great public importance:

DOES A MANDATORY ARBITRATION PROVISION 

CONTAINED WITHIN A RESIDENTIAL WARRANTY DEED 

CONVEYING RESIDENTIAL PROPERTY FROM HOME 

BUILDER TO ORIGINAL PURCHASER RUN WITH THE 

LAND SUCH THAT IT IS BINDING ON SUBSEQUENT 

PURCHASERS WHERE THE INTENDED NATURE OF 

THE PROVISION IS CLEAR AND THE PARTY AGAINST 

WHOM ENFORCEMENT IS SOUGHT WAS ON NOTICE 

OF THE PROVISION?
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Id. at 118. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. 

We rephrase the certified question as follows:

DOES A DEED COVENANT REQUIRING THE 

ARBITRATION OF ANY DISPUTE ARISING FROM A 

CONSTRUCTION DEFECT RUN WITH THE LAND, SUCH 

THAT IT IS BINDING UPON A SUBSEQUENT 

PURCHASER OF THE REAL ESTATE WHO WAS NOT A 

PARTY TO THE DEED?

We answer the rephrased certified question in the affirmative 

and approve the decision of the Second District Court of Appeal.

FACTS AND PROCEDURAL HISTORY

In 2007, the home at issue in the present case (the Home) was 

constructed and sold by U.S. Home to the original purchasers, with 

transfer of title being conveyed from U.S. Home to the original 

purchasers via special warranty deed (Original Deed), which was 

recorded in the Official Records of Lee County, Florida. Hayslip, 

276 So. 3d at 112. The Original Deed contained the following 

provision (the Arbitration Provision):

Grantor and Grantee specifically agree that this 

transaction involves interstate commerce and that any 

dispute . . . shall first be submitted to mediation and, if 

not settled during mediation, shall thereafter be 

submitted to binding arbitration as provided by the 

Federal Arbitration Act . . . and not by or in a court of law 

or equity.
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Id. The Original Deed also contains several covenants, conditions,

and restrictions (CC&Rs) concerning the Home. These recorded 

CC&Rs provide that they: (1) bind both the original purchasers and 

subsequent purchasers; and (2) require arbitration for disputes 

concerning the Home. The Original Deed also provides that its 

CC&Rs run with the land:

All covenants, conditions and restrictions contained in 

this Deed are equitable servitudes, perpetual and run 

with the land including, without limitation, Sections H, I, 

and J.

Section J of the Original Deed expressly states that acceptance of 

the Original Deed binds successors and assigns to its terms:

Grantee, by acceptance of this Deed, automatically 

agrees for itself, and its heirs, personal representatives, 

successors and assigns, to observe and to be bound by 

all of the terms and conditions set forth in this Deed.

Id. at 112.

In 2010, the original purchasers sold the Home to the 

Hayslips. The Hayslips’ 2010 deed provides that it is “[s]ubject to 

easements, restrictions, reservations and limitations, if any.” Id.

In 2017, the Hayslips filed a lawsuit against U.S. Home 

pursuant to section 553.84, Florida Statutes (2016), alleging that 

U.S. Home improperly installed the stucco system on the Home in 
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violation of the Florida Building Codes Act. 276 So. 3d at 112. In 

response, U.S. Home filed a Motion to Dismiss or Stay and Compel 

Arbitration. Id. at 112-13. Following a hearing, the general 

magistrate denied U.S. Home’s request to dismiss the action and 

granted U.S. Home’s request to stay the action and compel 

arbitration. Id. at 113. The circuit court adopted the general 

magistrate’s report and recommendation, and the Hayslips 

appealed. Id. On appeal to the Second District, the court held that 

a valid arbitration agreement existed, that it was a covenant 

running with the land, and affirmed the circuit court’s order. Id. at 

118. The district court then certified the question set forth above 

as one of great public importance.

ANALYSIS

The Hayslips argue that they are not bound by the Arbitration 

Provision because it is not a covenant running with the land. 

Covenants are divisible into two major classes: (1) real covenants 

which run with the land and typically bind the heirs and assigns of 

the covenanting parties, and (2) personal covenants which bind only 

the covenanting parties personally. See Palm Beach Cnty. v. Cove 

Club Invs. Ltd., 734 So. 2d 379, 382 n.4 (Fla. 1999); see also Caulk 
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v. Orange County, 661 So. 2d 932, 933 (Fla. 5th DCA 1995). 

Although they dispute the application of the test to the facts of this 

case, the parties agree that the following three conditions must 

exist to create a valid and enforceable covenant running with the 

land: “(1) the existence of a covenant that touches and involves the 

land; (2) an intention that the covenant run with the land; and 

(3) notice of the restriction on the part of the party against whom 

enforcement is sought.” Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 

964 So. 2d 261, 265 (Fla. 4th DCA 2007). We conclude that all 

three factors are present here and that the arbitration provision is a 

real covenant running with the land.

The distinction between a real covenant and a personal 

covenant was articulated by the Third District Court of Appeal in 

Maule Industries, Inc. v. Sheffield Steel Products, Inc., 105 So. 2d 

798 (Fla. 3d DCA 1958). The Third District defined a real covenant 

running with the land as one concerning the property conveyed and 

the occupation and enjoyment thereof. Id. at 801. “If the 

performance of the covenant must touch and involve the land or 

some right or easement annexed and appurtenant thereto, and 

tends necessarily to enhance the value of the property or renders it 
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more convenient and beneficial to the owner, it is a covenant 

running with the land.” Id.

The performance of the covenant in the present case affects 

the occupation and enjoyment of the home, as it dictates the means 

by which the Hayslips must seek to rectify building defects related 

to the home. See, e.g., Hagan v. Sabal Palms, Inc., 186 So. 2d 302, 

310 (Fla. 2d DCA 1966). Not only is the covenant triggered when an 

apparent defect in the home is realized and the homeowners seek 

recourse from the builder, but the outcome of the arbitration 

proceeding necessarily impacts the home as well. Thus, the 

arbitration provision touches and concerns the property itself

because it “affect[s] ‘the mode of enjoyment of the premises.’ ” 

Winn-Dixie Stores, 964 So. 2d at 264 (quoting Dunn v. Barton, 16 

Fla. 765, 771 (1878)). Moreover, “the thing required to be done” in 

the present case—arbitrate the dispute—touches the enjoyment of 

the land because the Hayslips benefit from the defective stucco 

being resolved. Hagan, 186 So. 2d at 310 (quoting Maule Indus., 

105 So. 2d at 801). The responsibility to build the home in 

accordance with the applicable laws and regulations is directly 
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linked to the contract. For all of these reasons, we conclude that 

the arbitration provision touches and involves the land.

As to the original contracting parties’ intent, the Original Deed 

specifies that all covenants run with the land.

G. All covenants, conditions and restrictions contained in 

this Deed are equitable servitudes, perpetual and run 

with the land including, without limitation, Sections H, I, 

and J.

. . . .

I. Grantor and Grantee specifically agree that this 

transaction involves interstate commerce and that any 

Dispute (as hereinafter defined) shall first be submitted 

to mediation and, if not settled during mediation, shall 

thereafter be submitted to binding arbitration as provided 

by the Federal Arbitration Act (9 U.S.C. §§1 et seq.) and 

not by or in a court of law or equity.

Therefore, the language of the Original Deed expressly 

provides that the original parties intended that the arbitration 

provision runs with the land.

Finally, as to notice, the Hayslips also dispute the existence of 

a valid arbitration agreement because, by not being signatories to 

the Original Deed, they did not intend to be bound by the 

arbitration provision. However, a deed covenant may be enforced 

against a successor grantee so long as the successor grantee had 
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notice of the covenant, see Park Ave. BBQ & Grille of Wellington, Inc. 

v. Coaches Corner, Inc., 746 So. 2d 480, 482 (Fla. 4th DCA 1999), 

and under section 695.11, Florida Statutes (2016), if an instrument 

is recorded in the official county records, such recording “shall be 

notice to all persons.” See also Hagan, 186 So. 2d at 310 (quoting 

26 C.J.S. Deeds § 167(1) (“[I]f [a restrictive covenant] runs with the 

land, the covenant binds the owner regardless of knowledge, and if 

not, he is bound only if he took the land with notice.”). The

Hayslips had constructive notice of the arbitration provision 

because it was properly recorded. Accordingly, the Hayslips are 

bound by the arbitration provision.

CONCLUSION

For the reasons expressed, we answer the rephrased certified 

question in the affirmative and approve the result reached in the 

Second District Court of Appeal.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and 

GROSSHANS, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal
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Certified Great Public Importance

Second District – Case No. 2D17-4372

(Lee County)

Joshua E. Burnett of Burnett Law, P.A., Tampa, Florida,

for Petitioners

David M. Gersten, Marie H. Kim, and Ryan M. Wolis of Gordon Rees

Scully Mansukhani LLP, Miami, Florida; and C. David Harper of 

Foley & Lardner LLP, Tampa, Florida,

for Respondent

Kenneth B. Bell and John W. Little, III of Gunster, West Palm 

Beach, Florida; and Robert W. Goldman of Goldman Felcoski & 

Stone, P.A., Naples, Florida,

for Amicus Curiae Real Property Probate & Trust Law Section

of The Florida Bar

Manuel Farach of McGlinchey Stafford, PLLC, Fort Lauderdale, 

Florida,

for Amicus Curiae Florida Land Title Association