Attorney’s Fee Clauses in Easements Do Not Run with the Land: Florida Requires a Meaningful Connection to Land Use

1. Introduction

When land changes hands, some obligations concerning that land bind the new interest holders automatically. Others remain personal promises enforceable through contract law. This decision clarifies where a prevailing-party attorney’s fee clause in an easement agreement falls within that distinction.

Answering a question certified by the United States Court of Appeals for the Eleventh Circuit, the Supreme Court of Florida held that the fee provision did not run with the land. Although contained in an agreement creating a property interest, the provision did not sufficiently affect how the property was used, occupied, or enjoyed. Its function was to allocate litigation expenses after resolution of the underlying dispute, not to regulate or remedy the physical use of the property.

The decision is particularly significant because it limits the implications of Hayslip v. U.S. Home Corp., 336 So. 3d 207 (Fla. 2022), which held that a construction-defect arbitration provision ran with the land. The Court preserved that precedent but refused to treat it as establishing that every dispute-related clause in a property instrument binds successors.

2. Background and Procedural History

The easement and the dispute

Hidden Valley Corporation originally owned two neighboring properties in Miami. It leased one to BellSouth Mobility and later granted BellSouth and its successors an easement over part of the property Hidden Valley retained for telecommunications purposes.

The easement agreement included a “Remedies for Breach” section providing:

In the event that it is necessary for either party hereto to file suit in order to enforce the terms hereof, then the prevailing party in such suit shall be entitled to receive reasonable attorney's fees and court costs in addition to any other award that the court might make, from the non-prevailing party.

After several transfers, RJ’s International Trading, LLC, referred to as RJI, owned the property burdened by the easement. Crown Castle South, LLC subleased the neighboring property from BellSouth and possessed rights under the easement.

In 2020, Crown Castle excavated beyond the easement’s boundaries and installed underground fiber-optic cables. RJI sued in federal court, asserting five claims, including trespass and breach of the easement agreement.

The underlying judgment

The federal district court granted partial summary judgment to RJI on liability for trespass and breach of the easement. It determined that the easement was valid and enforceable but that Crown Castle’s excavation and installation exceeded its boundaries.

Following a six-day trial, the jury awarded RJI $1 for breach of the easement agreement and $40,000 for trespass. It declined to award punitive damages. Another claim produced a small damages award, but RJI dismissed that claim before entry of final judgment. Crown Castle did not appeal the merits judgment.

The separate attorney’s fee controversy

RJI then sought attorney’s fees under the easement agreement. Because neither litigant was an original contracting party, RJI argued that the fee provision was a real covenant enforceable by and against successors in interest.

The district court rejected that argument. It concluded that the fee obligation did not “touch and concern” the land and therefore did not run with it.

On appeal, the Eleventh Circuit first rejected RJI’s alternative argument that it qualified as a “party hereto” under the agreement. That contractual interpretation was not before the Florida Supreme Court. Uncertain whether Florida property law nevertheless made the fee clause enforceable against successors, the Eleventh Circuit certified this question:

“Under Florida law, when an easement agreement contains a prevailing-party attorney's fee provision, is the fee provision a real covenant such that it runs with the land?”

The Florida Supreme Court accepted jurisdiction under article V, section 3(b)(6), of the Florida Constitution, which permits it to answer qualifying questions of Florida law certified by specified federal courts.

3. Summary of the Opinion

The Court answered the certified question no and returned the case to the Eleventh Circuit for further proceedings.

Justice Grosshans’s majority opinion identified three requirements for a covenant to run with the land:

1. The original contracting parties must intend to bind successors in interest.
2. The successors must have notice of the covenant.
3. The covenant must touch and concern the land.

The third requirement resolved the case. The fee clause concerned only the allocation of litigation expenses and was too remote from the property’s use, occupation, or enjoyment. Its presence in an easement agreement did not supply the necessary connection.

Chief Justice Couriel and Justices Labarga, Muñiz, and Francis joined the majority. Justices Barrios and Tanenbaum agreed with the result but each wrote separately, joining the other’s concurrence. Thus, all participating justices agreed on the answer, but two rejected important aspects of the majority’s doctrinal approach.

4. Analysis: The Majority’s Legal Reasoning

A. Successor liability requires more than a valid original contract

The opinion begins with a foundational distinction: an obligation may be enforceable between its original parties without automatically binding those who later acquire interests in the property.

Relying on section 530, comment a, of the Restatement (First) of Property, the Court explained that a running covenant makes successors liable on their predecessors’ promises because they acquire interests in the land—not because the successors personally made those promises.

This distinction explains why the existence of an enforceable easement did not settle the fee question. The substantive property rights and the accompanying litigation-cost provision had to be assessed separately. A clause does not acquire the legal characteristics of every other provision in the document containing it.

B. The governing connection is to use, occupation, or enjoyment

After reviewing the doctrine’s history, the majority articulated the governing inquiry:

“[C]ourts should consider whether the obligation is sufficiently connected to how the land is used, occupied, or enjoyed.”

Some earlier decisions had discussed whether an obligation enhanced the land’s value. The majority preferred the use, occupation, and enjoyment formulation as more consistent with the doctrine’s historical foundation.

The decision therefore requires more than an economic connection to land. An obligation may produce financial consequences for a property owner without sufficiently affecting the property itself. Conversely, the opinion does not establish that every monetary obligation is necessarily personal: it acknowledges decisions allowing assessment obligations to run with land.

C. The fee clause was collateral to the property rights

The Court identified several reasons why the provision failed the test:

• It did not restrict or prescribe how RJI’s land could be used.
• It did not determine who could use or enjoy the property.
• It did not meaningfully affect the property’s day-to-day enjoyment or mode of occupation.
• It did not alter the parties’ rights or remedies concerning the property itself.
• Its function arose after resolution of the underlying dispute and concerned the distribution of litigation costs.

The provision could benefit a successful litigant financially, but that benefit was not sufficiently connected to land use. The majority treated the clause as tangential to the property rather than as an obligation regulating it.

Because this defect was dispositive, the Court did not need to determine independently whether the intent and notice requirements were satisfied. Those requirements could not compensate for the absence of the required substantive connection.

D. Arbitration and fee shifting perform different functions

RJI’s strongest argument relied on the enforceability of the arbitration provision in Hayslip v. U.S. Home Corp.. The majority distinguished that provision by its role in obtaining relief for physical construction defects.

There, arbitration was the mechanism through which homeowners could obtain recourse against the builder for defects in their home. Its outcome could affect repairs or improvements to the property. Here, the fee clause did not determine how the property dispute would be resolved; it allocated expenses after that resolution.

The Court adopted the Eleventh Circuit’s description of arbitration as “one step removed” from the property and fee shifting as “two steps removed.” That language illustrates the functional distinction rather than replacing the stated touch-and-concern inquiry with a mechanical counting rule.

The majority expressly declined to reconsider whether Hayslip v. U.S. Home Corp. was correctly decided. Neither party requested reconsideration, and that issue exceeded the certified question’s scope.

5. Precedents Cited and Their Influence

A. The principal modern authorities

RJ's Int'l Trading, LLC v. Crown Castle S., LLC, 98 F.4th 1330 (11th Cir. 2024)

This was the federal certification decision that framed the Florida Supreme Court’s task. The Eleventh Circuit rejected the argument that RJI was a contractual “party hereto,” then identified uncertainty about whether the clause could instead bind successors as a real covenant. Its comparison between construction-defect arbitration and post-merits fee allocation became central to the majority’s distinction.

Its procedural importance is equally significant: the Florida Supreme Court answered a state-law question rather than reviewing the entire federal litigation or reconsidering the underlying liability and damages judgment.

Hayslip v. U.S. Home Corp., 336 So. 3d 207 (Fla. 2022)

This decision supplied the three-part framework for running covenants and represented the principal argument for extending successor liability to the fee clause. It held that an arbitration provision in a deed touched and concerned the land because it established the means for resolving construction defects affecting the home.

The present majority preserved that result but emphasized the physical nature of the defects and arbitration’s role in securing property-related relief. The case therefore remains controlling within its circumstances, but it does not establish automatic successor liability for all procedural or remedial provisions in property documents.

Caulk v. Orange County, 661 So. 2d 932 (Fla. 5th DCA 1995)

This decision provided the majority’s closest substantive analogy. The original grantor had reserved proceeds from a future eminent-domain proceeding involving the conveyed land. The Fifth District held that the reservation did not run with the land because its connection to the property was only tangential.

The majority applied the same distinction here: a right to receive money generated by a land-related event does not necessarily affect the land itself. The fee clause, like the proceeds reservation, allocated a financial benefit without regulating use or occupation.

Huck v. Kenmare Commons Homes Ass'n, 382 So. 3d 759 (Fla. 1st DCA 2023)

The majority cited this case both for the nature of successor liability and for the significance of an obligation’s connection to land use. Its subject—a prohibition on street parking—illustrated a covenant directed toward property use rather than a collateral payment obligation.

Justice Barrios also relied on its discussion of the First Restatement to support a more expressly physical-use-based test.

B. Historical foundations

• Spencer's Case, 5 Co. Rep. 16a, 77 Eng. Rep. 72 (Q.B. 1583), supplied the traditional distinction between covenants touching and concerning leased land and merely collateral promises. Examples of collateral promises included building on unrelated land and paying a collateral sum. The majority used this history to show that not every promise associated with a land transaction follows the property.

• Mayor of Congleton v. Pattison, 10 East, 130, 103 Eng. Rep. 725 (K.B. 1808), explained the necessary connection in terms of directly affecting the nature, quality, value, or mode of occupying the premises. This supported the majority’s focus on the obligation’s relationship to actual property use.

• Gallagher v. Bell, 516 A.2d 1028 (Md. Ct. Spec. App. 1986), appeared in a historical footnote as an authority tracing the doctrine to Spencer's Case. It was not relied on as a decision about attorney’s fees.

• Regency Homes Ass'n v. Egermayer, 498 N.W.2d 783 (Neb. 1993), served two purposes: documenting American acceptance of the touch-and-concern requirement and illustrating its later relaxation to permit assessment obligations to run with land.

• Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618 (Utah 1989), supported the broader historical proposition that American courts adopted touch and concern as a limitation on successor enforcement.

C. Florida decisions illustrating the land-use inquiry

• Dunn v. Barton, 16 Fla. 765 (1878), was identified as Florida’s earliest reported application of the underlying requirement. Although it did not use the precise phrase “touch and concern,” it recognized a covenant affecting the “mode of enjoyment of the premises.” Both the majority and Justice Barrios treated it as foundational, while differing over how strictly its physical-use implications should control.

• Maule Indus., Inc. v. Sheffield Steel Prods., Inc., 105 So. 2d 798 (Fla. 3d DCA 1958), concerned maintenance of railroad facilities. Its discussion of both enhanced value and land use helped the majority explain why use, occupation, and enjoyment provide the preferable formulation.

• Hagan v. Sabal Palms, Inc., 186 So. 2d 302 (Fla. 2d DCA 1966), involved restrictions on what buildings could be constructed. The majority cited it as an example of Florida courts examining obligations directly associated with development of land.

• Keyes Co. v. Frazier, 213 So. 2d 276 (Fla. 3d DCA 1968), concerned a promise to pay a real estate commission. It appeared in the survey of obligations assessed under the doctrine. The present opinion did not develop its facts or holding sufficiently to make it an independent foundation for the fee-clause result.

• Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So. 2d 261 (Fla. 4th DCA 2007), involved restrictions on commercial use. Its emphasis on use and enjoyment supported the majority’s chosen formulation of the test.

D. Authorities addressing attorney’s fee provisions directly

The majority observed that its conclusion aligned with most courts outside Florida that had addressed the precise issue. It cited the following decisions as holding that fee provisions did not run with the land:

• Est. of Ogumoro v. Han Yoon Ko, No. CV-06-0015-GA, 2011 WL 5223117, at *14 (N. Mar. I. Oct. 20, 2011).
• Fusco v. Matsumoto, No. 2009-SCC-0030-CIV, 2011 WL 12673474, at *14 (N. Mar. I. Dec. 30, 2011).
• Keogh v. Peck, 259 Ill. App. 503, 518 (1931).
• Paloma Inv. Ltd. P'ship v. Jenkins, 978 P.2d 110, 116 (Ariz. Ct. App. 1998).
• Lundeberg v. Dastrup, 497 P.2d 648, 650 (Utah 1972).

It acknowledged two contrary decisions:

• Jack Mathis Gen. Contractors, Inc. v. Murphy, 472 P.2d 820, 823 (Or. 1970).
• Solky v. Smith, 129 Nev. 1152 n.4 (2013), an unpublished decision.

These authorities corroborated the result rather than supplying the controlling rule. The majority grounded its holding principally in Florida doctrine and its assessment of the fee clause’s function.

E. Authorities demonstrating doctrinal flexibility

Neponsit Prop. Owners' Ass'n v. Emigrant Indus. Sav. Bank, 15 N.E.2d 793 (N.Y. 1938), upheld an obligation to pay annual homeowners’ association assessments. Along with Regency Homes Ass'n v. Egermayer, it demonstrated that courts have sometimes relaxed traditional restrictions.

The majority acknowledged explanations for that development, including freedom of contract and the availability of recorded instruments. It cited Richard A. Epstein’s scholarship on those considerations and A. Dan Tarlock’s work on the doctrine’s history. But it did not treat contractual freedom or recording as substitutes for touch and concern.

This acknowledgment matters: the majority did not freeze the doctrine in its sixteenth-century form. It nevertheless found no persuasive reason to extend it to the fee provision before the Court.

6. The Separate Concurrences

A. Justice Barrios: require a direct connection to physical use

Justice Barrios agreed that the fee clause did not run with the land but considered the majority’s formulation incomplete. In her view, “used, occupied, or enjoyed” must carry an express requirement that the covenant’s subject matter directly affect the property’s physical use.

She relied on section 537, comment f, of the Restatement (First) of Property, which distinguishes benefits involving physical use from benefits merely enjoyed by someone who owns land. The critical question was not whether the promise helped a landowner, but whether it concerned how the land itself was physically used.

Her additional Florida authorities reinforced that distinction:

• Armstrong v. Seaboard Air Line Ry. Co., 95 So. 506 (Fla. 1922), rejected running-covenant treatment for promises concerning a freight schedule and depot name because they did not relate to something physically connected or annexed to the property.
• Osius v. Barton, 147 So. 862 (Fla. 1933), recognized a restriction on commercial uses within a subdivision as running with the land.
• Frumkes v. Boyer, 101 So. 2d 387 (Fla. 1958), recognized a deed provision dedicating land for a public road as a running covenant.

Justice Barrios criticized Palm Beach County v. Cove Club Investors, Ltd., 734 So. 2d 379 (Fla. 1999), which treated a country club’s right to monthly recreation fees from community lot owners as a compensable property interest when a lot was condemned. She viewed that decision and Hayslip v. U.S. Home Corp. as misapplications of the traditional test rather than principled changes to it.

Although agreeing that the arbitration precedent was distinguishable, she found the logical difference between arbitration and fee shifting difficult to articulate under the majority’s approach. She would describe the arbitration decision as an “outlier” and adopt a clearer physical-use rule to guide future disputes, including possible disputes about jury-trial waivers.

This stricter formulation is not the majority holding. Her criticism also did not overrule either precedent.

B. Justice Tanenbaum: reciprocal litigation promises are not real covenants

Justice Tanenbaum joined Justice Barrios and advanced an additional structural argument. Drawing on American Law of Property, he distinguished easements and real covenants from bilateral agreements imposing reciprocal litigation obligations.

An easement, he explained, modifies one party’s rights in land for another’s benefit. A real covenant similarly requires examination of the burden on one side and the benefit on the other, including their respective connections to physical land use.

A prevailing-party fee provision instead imposes a contingent, mutual obligation: either party may owe fees depending on who prevails. In his view, that is a collateral bilateral contract rather than an obligation capable of running with land.

Two additional decisions supported his terminology:

• Levy v. Levy, 326 So. 3d 678 (Fla. 2021), discussed unilateral attorney’s fee provisions and the reciprocity supplied by section 57.105(7), Florida Statutes. Justice Tanenbaum used it to distinguish one-sided and reciprocal fee arrangements, not to establish a statutory entitlement in this case.
• D.L. Peoples Grp., Inc. v. Hawley, 804 So. 2d 561 (Fla. 1st DCA 2002), supplied the description of bilateral contracts in terms of mutuality of obligation.

His conclusion was broader than the majority’s certified-question holding: a prevailing-party fee clause could never be a real covenant, wherever placed. That categorical proposition belongs to the concurrence, not to the controlling opinion.

7. Impact on Florida Property and Contract Law

A. Recording and successor language are not enough

The decision makes clear that intent, notice, and substantive connection are separate requirements. Recording a fee clause or declaring that an agreement binds successors cannot, by itself, make the clause run with land when it fails the touch-and-concern test.

Drafting therefore requires attention to the legal source of each obligation, not merely broad language applying an entire document to future owners.

B. Property instruments must be analyzed provision by provision

A successor may possess enforceable easement rights without acquiring every contractual benefit or burden found in the easement instrument. Courts and practitioners must distinguish the property interest from collateral promises accompanying its creation.

This approach protects successors from automatic liability for contractual obligations whose connection to the acquired property is insufficient.

C. The arbitration precedent survives, but its reach is constrained

Future litigants cannot rely solely on the proposition that a clause concerns a property-related dispute. They must examine its actual function and connection to property use or relief affecting the property.

Other provisions—such as jury-trial waivers, forum-selection terms, or different remedial arrangements—were not decided. The concurrences identify potential future disputes, but they do not resolve them.

D. Independent grounds for fees remain distinct

The decision rejects automatic enforcement of this fee provision through real-covenant doctrine. It does not invalidate fee agreements between their contracting parties or decide every possible statutory or contractual basis for successor liability.

For example, whether a successor separately assumed an obligation would present a different contractual inquiry. The existence and effect of such an assumption would need to be established; it cannot be presumed from acquisition of the property.

Likewise, the opinion should not be read as categorically eliminating all possible litigation-cost awards. The certified question concerned the fee clause’s status as a running covenant, not every independent source of recoverable fees or costs.

E. The practical tension remains unresolved

Fee shifting can influence whether parties can afford to enforce property rights. The majority nevertheless treated that enforcement incentive as insufficient to establish the required land-use connection. The case thus separates the practical value of a clause to landowners from its legal capacity to bind successors automatically.

The concurrences expose a continuing doctrinal tension: a flexible test can accommodate modern property arrangements, but may make the boundary between sufficiently connected and merely tangential obligations harder to predict.

8. Complex Concepts Simplified

Easement

A right to use another person’s land for a specified purpose without owning or possessing that land outright. Here, the right concerned telecommunications use.

Covenant

A legally enforceable promise. Some covenants concern land closely enough to bind later interest holders; others remain personal contractual obligations.

Running with the land

The law attaches an obligation or benefit to a property interest so that it passes to qualifying successors without a new personal promise.

Touch and concern

The required substantive connection between the promise and the land. Under the majority’s formulation, the obligation must be sufficiently connected to how the property is used, occupied, or enjoyed.

Personal or collateral covenant

A promise that does not automatically bind successors merely because they acquire the property. It may still be enforceable through an applicable contractual relationship.

Prevailing-party attorney’s fee provision

A clause requiring the losing party in covered litigation to pay the successful party’s reasonable attorney’s fees.

Certified question

A legal question a court submits to another court with authority to give a controlling answer. Here, the federal appellate court requested clarification of unsettled Florida law.

Concurrence in result only

An opinion agreeing with the outcome but not adopting the majority’s reasoning. Its separate rationale is not itself the Court’s controlling rule.

9. Conclusion

The decision establishes that a prevailing-party attorney’s fee provision in an easement agreement does not run with the land merely because it accompanies enforceable property rights. Its cost-allocation function is too remote from the land’s use, occupation, or enjoyment.

The broader lesson is that an obligation associated with land is not necessarily an obligation attached to land. Each provision requires its own analysis. The Court preserved construction-defect arbitration precedent while refusing to extend it to post-merits fee shifting.

The case was returned to the Eleventh Circuit, not finally disposed of by the Florida Supreme Court. The supplied opinion also bears a notice that it is not final until the rehearing period expires and any rehearing motion is determined.