Impossibility defense to enforcement of deed restriction may be based on government denial of permit

A restaurant owner successfully asserted impossibility in defense of a suit seeking to compel it to rebuild a gate on its property in Marathon Sunsets, Inc. v. Coldiron, 41 FLW D685a (Fla. 3rd DCA 2016). The gate had been damaged and removed due to nearby sewer repairs. The restaurant owner sought, but was denied, a government permit to rebuild it.  When a neighbor sued for violation of a deed restriction that required the gate, the trial court ordered the restaurant owner to reconstruct the gate.

On appeal, the Third District reversed, holding that the restaurant owner was discharged from this obligation by the doctrine of impossibility. Its permit application having been “categorically denied,” it was impossible for the restaurant owner to comply with the restriction.

“[A] party is discharged from performing a contractual obligation which is impossible to perform and the party neither assumed the risk of impossibility nor could have acted to prevent the event rendering the performance impossible." See, e.g., Shore Inv. Co. v. Hotel Trinidad, Inc., 29 So. 2d 696 (Fla. 1947); Ferguson v. Ferguson, 54 So. 3d 553 (Fla. 3d DCA 2011); Leon Cnty. v. Gluesenkamp, 873 So. 2d 460 (Fla. 1st DCA 2004); Am. Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So. 2d 809 (Fla. 4th DCA 1998).

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