The Florida Supreme Court issued an important decision on October 29, 2026, for property owners, developers, title insurers, telecommunications companies, and real estate practitioners, holding that a prevailing-party attorney's fee provision contained in an easement agreement does not run with the land and therefore is generally not enforceable against successor owners who never agreed to the provision themselves.
The decision provides significant guidance regarding which obligations contained in recorded real estate instruments (including deeds, easements, etc.) will bind future owners under Florida law and signals a more cautious approach to expanding the doctrine of covenants running with the land.
Background
The underlying dispute arose from a telecommunications easement created decades ago between predecessor owners of neighboring properties in Miami-Dade County, Florida. The easement agreement contained a prevailing-party attorney's fee provision stating that if either party filed suit to enforce the agreement, the prevailing party would be entitled to recover reasonable attorney's fees and costs.
Following an ownership transfer, the appellant became the owner of a parcel of commercial property that was subject to an easement which the appellee had the right to use for ingress and egress to a neighboring property that it was leasing. Following a dispute concerning excavation and installation of fiber optic facilities outside the scope of the easement, litigation ensued. The appellant ultimately prevailed on its claims for trespass and breach of the easement agreement, and despite being awarded only nominal damages of $1 for the breach of contract claim, sought to recover its attorney's fees under the easement's prevailing-party provision.
The central question became whether the attorney's fee provision constituted a "real covenant" that ran with the land, and therefore, bound successors in interest.
The Florida Supreme Court's Holding
Answering a certified question from the United States Court of Appeals for the Eleventh Circuit, the Florida Supreme Court held that a prevailing-party attorney's fee provision in an easement agreement is not a covenant that runs with the land.
Under longstanding Florida law, a covenant will run with the land only if:
- The original parties intended successors to be bound;
- Successors had notice of the covenant; and
- The covenant "touches and concerns" the land.
The Court focused on the third requirement and explained that a covenant touches and concerns the land only when it is sufficiently connected to the manner in which the property is used, occupied, or enjoyed.
According to the Florida Supreme Court, an attorney's fee provision does none of those things. It does not regulate the use of property, alter ownership rights, affect possession, or impact the enjoyment of the land itself. Instead, it merely allocates litigation expenses after a dispute has already been resolved. As a result, the Court concluded that the connection between the fee provision and the land was too attenuated to satisfy the touch-and-concern requirement.
Distinguishing Hayslip
One of the most closely watched aspects of the decision is the Court's treatment of its earlier Hayslip v. U.S. Home Corp. opinion, which held that an arbitration provision contained in a deed could run with the land.
The Court declined to extend Hayslip, emphasizing that the arbitration provision there served as the mechanism for resolving disputes concerning physical defects in the property itself. Because the arbitration process directly related to obtaining repairs and remedies connected to the home, the Court found a sufficient nexus to the property.
By contrast, a prevailing-party attorney's fee provision comes into play only after the underlying dispute has been adjudicated and merely governs cost allocation between litigants. For that reason, the Court concluded that the fee provision was materially different from the arbitration covenant at issue in Hayslip. Notably, concurring opinions questioned whether Hayslip itself should be viewed as an exception to traditional real property principles.
Practical Implications for Florida Real Estate Owners and Developers
The decision has implications extending far beyond attorney's fee provisions.
- Parties can no longer assume that every obligation placed in a recorded deed, easement, declaration, or development agreement will run with the land merely because it was intended to do so. Courts will continue to scrutinize whether the obligation has a direct connection to the property's use, occupation, or enjoyment.
- Developers, commercial property owners, utility providers, and telecommunications companies should consider obtaining express assumption agreements when transferring interests governed by easements, reciprocal easement agreements, or similar instruments. An express contractual assumption may be necessary to preserve rights that otherwise may not qualify as covenants running with the land.
- The decision may invite challenges to other provisions that relate primarily to dispute resolution rather than property rights, including venue-selection clauses, jury-trial waivers, and other procedural litigation mechanisms.
Key Takeaway
The Florida Supreme Court's decision draws a clear distinction between property-related and litigation-related obligations. While Florida continues to recognize covenants that run with the land, only those obligations that bear a sufficiently direct relationship to the use, occupation, or enjoyment of the real property will bind successors by operation of law. A prevailing-party attorney's fee provision, standing alone, does not meet that standard. For owners, developers, title professionals, lenders, and easement holders, the Court's decision serves as a reminder that careful drafting and express assumption language may be necessary to ensure that important contractual rights survive future transfers of property interests.
If you have questions regarding real estate litigation matters, easement enforcement, covenant drafting, title issues, or the impact of this decision on existing real estate agreements, please contact Eve A. Cann and Desislava K. Docheva.