RJ’S INTERNATIONAL TRADING, LLC

v.

CROWN CASTLE SOUTH, LLC, ET AL.

Supreme Court of Florida

No. SC2024-0547

RJ'S INTERNATIONAL TRADING, LLC, Appellant,

vs.

CROWN CASTLE SOUTH, LLC, et al., Appellee.

GROSSHANS, J.

October 29, 2026

Individuals can transfer land or establish legal interests in it by executing deeds, contracts, and other documents. Often, such instruments also impose continuing obligations. Not surprisingly, these obligations are generally enforceable by and against the original parties as a matter of contract law. But are those same contractual obligations binding upon subsequent parties who acquire an interest in the relevant land? The answer depends, in part, on how closely the obligation is connected to the land itself. Where a sufficient connection exists and other requirements are satisfied, the obligation binds successors by operation of law and is said to "run with the land"—an ancient term of art.

In this case, the parties request that we answer a certified question from the U.S. Court of Appeals for the Eleventh Circuit, which asks whether a prevailing-party attorney's fee provision in an easement agreement runs with the land as a matter of Florida law. RJ's Int'l Trading, LLC v. Crown Castle S., LLC, 98 F. 4th 1330, 1343 (11th Cir. 2024).1 U.S. Home Corp., 336 So. 3d 207 (Fla. 2022), which addressed a materially different obligation.

I

More than three decades ago, Hidden Valley Corporation bought two neighboring properties in Miami. Hidden Valley leased one of them to BellSouth Mobility, later giving BellSouth (and its successors) permission to use for telecommunication purposes a portion of the adjacent property (which Hidden Valley retained). In

1. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.

the easement agreement creating this nonpossessory interest, there is a section entitled “Remedies for Breach,” which includes an attorney's fee provision. It states:

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.

Following creation of the easement, multiple transfers of both properties occurred. At the time of the lawsuit in this case, RJ's International Trading, LLC (RJI) owned one of the properties subject to the easement. Crown Castle South, LLC subleased the neighboring property from BellSouth and had the right to use a portion of RJI's property by virtue of the easement.

Conflict arose in 2020 when Crown Castle excavated portions of RJI's land beyond the easement and installed fiber optic cables underground. Based on the unauthorized excavation and installation, RJI sued Crown Castle in federal court. RJI asserted five claims, alleging trespass and breach of the easement agreement as two of the theories of liability.

The district court granted partial summary judgment for RJI, finding Crown Castle liable on the trespass and breach-of-easement claims. In doing so, the court ruled that a valid and enforceable easement existed. It further ruled that Crown Castle's excavation and installation activities exceeded the easement's boundaries and constituted a trespass. The court made no determination as to damages.

Ultimately, following a six-day trial, the jury awarded RJI $1 for Crown Castle's breach of the easement agreement and $40,000 for its trespass.2 The district court entered a final judgment (later amended), which reflected the jury's assigned damages for the breach-of-easement and trespass claims.³ The jury declined to award any punitive damages.

3. The jury awarded RJI a small amount of damages for its last remaining claim, but RJI dismissed that claim prior to entry of the final judgment.

principles, RJI reasoned that the fee provision was a “real covenant” that bound not only the original contracting parties (Hidden Valley and BellSouth) but also those who succeeded them in interest (including RJI and Crown Castle). Recognizing what Florida law requires in this regard, RJI contended that the provision ran with the land.

Crown Castle opposed RJI's motion for fees, arguing that the fee provision was too attenuated from the land to “touch and concern" it—one of the requirements for a provision to run with the land. Instead, according to Crown Castle, the fee provision was merely a personal covenant that bound only the original parties to the easement agreement: Hidden Valley and BellSouth.

Siding with Crown Castle, the court denied RJI's motion for attorney's fees. It ruled that the promise to pay attorney's fees did not touch and concern land and, thus, did not run with the land. In reaching this conclusion, the court noted out-of-state cases, found support in Caulk v. Orange County, 661 So. 2d 932 (Fla. 5th DCA 1995), and distinguished our decision in Hayslip.

RJI appealed. The Eleventh Circuit first considered and rejected RJI's argument that it was a "part[y] hereto” as that term is used in the easement agreement. RJ's Int'l Trading, 98 F. 4th at 1339. That interpretive issue is not before us.

Having resolved this issue against RJI, the court next assessed whether the prevailing-party fee provision could be enforced as a covenant running with the land. Id. at 1339-43. It discussed Florida law on this topic, including Caulk and Hayslip. In Caulk, the Fifth District Court of Appeal held that the reservation of eminent-domain proceeds did not run with the land. 661 So. 2d at 934. Hayslip, on the other hand, involved an arbitration provision, which we found to touch and concern the land. 336 So. 3d at 210. In the Eleventh Circuit's view, Hayslip appeared to come closer to answering the question in this case. RJ's Int'l Trading, 98 F. 4th at 1342. Yet, due to factual distinctions, the court was reluctant to treat Hayslip as controlling. Id. at 1341-42.

Based on this uncertainty and other considerations, the Eleventh Circuit certified the following question to us: “Under Florida law, when an easement agreement contains a prevailingparty attorney's fee provision, is the fee provision a real covenant such that it runs with the land?” Id. at 1343. We accepted review.

II

A covenant or obligation that “runs with the land" binds successors who “become liable as promisors upon the promise made by their predecessor” by virtue of their acquiring an interest in the land. Restatement (First) of Prop. § 530 cmt. a (A.L.I. 1944). Note that this liability is not based on any promise or covenant that the successor to the land personally made. Id.; see also Huck v. Kenmare Commons Homes Ass’n, 382 So. 3d 759, 766 (Fla. 1st DCA 2023). Invoking this doctrine, RJI maintains that the attorney's fee provision here runs with the land and is binding on Crown Castle as a matter of Florida law, even though Crown Castle did not personally promise to pay RJI's attorney's fees. Based on our assessment of the law, we disagree.

For a covenant to run with the land, three requirements must be satisfied. First, the original contracting parties must intend for successors in interest to be bound by the covenant. Hayslip, 336 So. 3d at 209. Second, successors in interest must have notice of the covenant. Id. And third, the covenant must touch and concern the land. Id. Our focus is on the final requirement, which is dispositive in answering the certified question.

A

Many jurists trace the touch and concern requirement back to a 1583 English decision, known as Spencer's Case, 5 Co. Rep. 16а, 77 Eng. Rep. 72 (Q.B. 1583).4 Rep. at 16b, 77 Eng. Rep. at 74. The former could be enforceable against an assignee; the latter could not. To illustrate the distinction, the court identified several collateral covenants that would not bind an assignee including: (1) a lessee's promise to build a house for the lessor on land that was not the subject of the lease and (2) a lessee's promise to pay “any collateral sum” to the lessor. Id.

Two centuries later, that same English court explained that to touch and concern5 the land, the covenant must “directly affect[] the nature, quality, or value of the thing demised, [or] the mode of

4. E.g., A. Dan Tarlock, Touch and Concern Is Dead, Long Live the Doctrine, 77 Neb. L. Rev. 804, 814 (1998); Gallagher v. Bell, 516 A. 2d 1028, 1032 (Md. Ct. Spec. App. 1986). 5. Since its earliest references, courts have used “touch or concern” and “touch and concern” interchangeably.

occupying it." Mayor of Congleton v. Pattison, 10 East, 130, 136, 103 Eng. Rep. 725, 727 (Κ.Β. 1808).

In America, states accepted this common law concept as a limitation on the enforceability of covenants by or against successors. See Regency Homes Ass’n v. Egermayer, 498 N.W. 2d 783, 789-91 (Neb. 1993) (canvassing cases on this concept from a multitude of jurisdictions); Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P. 2d 618, 623 (Utah 1989) (noting effect of the touch and concern requirement). As for Florida, the first reported decision applying this requirement appears to be Dunn v. Barton, 16 Fla. 765 (1878). There, while not using the specific phrase "touch and concern,” we found that a restrictive covenant ran with the land because it affected “the mode of enjoyment of the premises.” Id. at 771.

Since then, Florida courts have considered whether certain covenants or obligations meet the touch and concern requirement. Caulk, 661 So. 2d at 933 (reservation of right to proceeds from an eminent-domain proceeding); Maule Indus., Inc. v. Sheffield Steel Prods., Inc., 105 So. 2d 798, 799 (Fla. 3d DCA 1958) (covenant requiring maintenance of railroad facilities); Hagan v. Sabal Palms,

Inc., 186 So. 2d 302, 304 (Fla. 2d DCA 1966) (covenant restricting what buildings could be constructed); Huck, 382 So. 3d at 766 (prohibition on street parking); Keyes Co. v. Frazier, 213 So. 2d 276, 277 (Fla. 3d DCA 1968) (promise to pay real estate commission); Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So. 2d 261, 262 (Fla. 4th DCA 2007) (restricting commercial use of certain property).

In some cases, courts spoke in terms of the obligation enhancing the value of the land. E.g., Maule Indus., 105 So. 2d at 801. But in those same cases and others, courts focused on whether the covenant affected the use, occupation, or enjoyment of the land. Dunn, 16 Fla. at 771; Maule Indus., 105 So. 2d at 801; Winn-Dixie Stores, 964 So. 2d at 265; Huck, 382 So. 3d at 765. We think that this latter formulation is doctrinally sound and consistent with the concept's history. Accordingly, when deciding if the touch and concern requirement is met, courts should consider whether the obligation is sufficiently connected to how the land is used, occupied, or enjoyed.

B

Florida courts have not previously considered the particular obligation at issue here. That being said, we believe that Caulk—a case we cited with approval in Hayslip—provides helpful insight. The covenant at issue in Caulk reserved to the original grantor proceeds from any eminent-domain proceeding involving the land conveyed. 661 So. 2d at 933. The Fifth District held that this covenant did not run with the land, stressing that “[a]lthough the covenant ‘concern[ed]' the land” in some sense, it did so "only tangentially.” Id. at 934. That is, the covenant did not directly impact the property. Id.

Like the covenant in Caulk, the fee provision in question is simply too attenuated from the use, enjoyment, or occupation of the land to touch and concern it. The obligation does not restrict or proscribe how the land RJI owns can be used. Nor does it govern who can enjoy or make use of it. Put simply, the fee provision itself does not meaningfully bear on the use of the land or otherwise enhance the day-to-day enjoyment of it or impact its mode of occupation. Although the fee provision may provide a financial benefit to the prevailing party in a dispute, it does not alter the parties' rights or remedies with respect to the property itself. And, it only becomes relevant after the parties have exhausted all legal and equitable remedies in court.

In light of this, we find that the fee provision is, at best, only tangentially related to the land. See id.; Huck, 382 So. 3d at 765- 66. Thus, the attenuated connection between the fee provision and the land renders the provision incapable of running with the land so as to bind successors to the property, such as Crown Castle.

We note that our holding aligns with the majority of courts outside of Florida that have addressed the precise issue of whether a fee provision touches and concerns the land. See Est. of Ogumoro v. Han Yoon Ko, No. CV-06-0015-GA, 2011 WL 5223117, at *14 (Ν. Mar. I. Oct. 20, 2011) (fee provision does not run); Fusco v. Matsumoto, No. 2009-SCC-0030-CIV, 2011 WL 12673474, at *14 (N. Mar. I. Dec. 30, 2011) (same); Keogh v. Peck, 259 Ill. App. 503, 518 (1931) (same); Paloma Inv. Ltd. P’ship v. Jenkins, 978 P. 2d 110, 116 (Ariz. Ct. App. 1998) (same); Lundeberg v. Dastrup, 497 P. 2d 648, 650 (Utah 1972) (same). To our knowledge, only two courts have reached the opposite conclusion. Jack Mathis Gen. Contractors, Inc. v. Murphy, 472 P. 2d 820, 823 (Or. 1970) (fee provision runs); Solky v. Smith, 129 Nev. 1152 n.4 (2013) (unpublished) (same).

C

This brings us to RJI's most forceful argument. RJI contends that our recent decision in Hayslip compels us to hold that the fee provision here touches and concerns the land. We see things differently.

In Hayslip, we held that an arbitration provision in a deed ran with the land. 336 So. 3d at 209-10. We reasoned that the challenged provision touched and concerned the land as it established the means for resolving defects to the home and that the outcome of any arbitration proceeding necessarily affected both the home and homeowner. Id.

The fee provision here is different. It is, as the Eleventh Circuit noted, further removed from the land than the arbitration provision in Hayslip. Specifically, the Eleventh Circuit said:

In Hayslip, arbitration was the means of resolving alleged defects in the property. Hayslip had to arbitrate with the developer to force the developer to fix defective stucco— part of the property. The arbitration was thus one step removed from the property itself.

By contrast, the fee provision here is two steps removed. The parties have already litigated their dispute over Crown Castle's trespass and breach of the easement. And through that litigation, RJI has already been awarded both equitable and legal remedies.

RJ's Int'l Trading, 98 F. 4th at 1342.

We underscore the nature of the obligation in Hayslip. The defects subject to arbitration were construction-related, meaning that they were physical, built into the house, and in a real sense tied to the land. See Hayslip, 336 So. 3d at 210 (characterizing the defects as being “in the home”). And as alluded to above, we also stressed that the outcome of the arbitration proceeding impacted the property, because it was the means by which the homeowners could seek recourse from the builder for improvements or repairs to the property. Id.

By contrast, a prevailing-party fee provision does not govern the resolution of property-related disputes. It comes into play only after the dispute has been finally resolved on the merits and serves solely to allocate litigation costs between the parties. It is wholly unconnected to the use, enjoyment, or occupation of the property itself or any interest therein. Accordingly, we find that Hayslip is distinguishable and does not have controlling significance.

We add one other point. It is undisputed that the touch and concern requirement has not remained static since the late 1500s. Decisions have, over time, relaxed the rule to some extent and found covenants enforceable that would not have run with the land under the traditional common law. See e.g., Neponsit Prop. Owners' Ass'n v. Emigrant Indus. Sav. Bank, 15 N.E. 2d 793, 796-97 (Ν.Υ. 1938) (promise to pay annual assessments to homeowners association enforceable); Egermayer, 498 N.W. 2d at 793 (similar). Various reasons have been offered for this shift, including freedom of contract and the availability of recorded deeds that did not exist at common law. See Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. Cal. L. Rev. 1353, 1358 (1982). Hayslip, though not expressly relying on either rationale, is arguably consistent with that trend. However, RJI has not convinced us to extend Hayslip's reach under the facts presented here.

6. Neither party has argued that Hayslip is clearly erroneous or asked us to revisit that decision in any respect. Moreover, whether Hayslip was correctly decided and how these principles might apply beyond the circumstances presented here are beyond the scope of the question certified to us by the Eleventh Circuit. See art. V, § 3(b)(6), Fla. Const. (providing that we “[m]ay review a question of law certified by the Supreme Court of the United States or a United States Court of Appeals which is determinative of the cause and for which there is no controlling precedent of the supreme court of Florida").

III

Based on the analysis above, we answer the Eleventh Circuit's certified question in the negative and return this case to it for further proceedings.

It is so ordered.

COURIEL, C.J., and LABARGA, MUÑIZ, and FRANCIS, JJ., concur. BARRIOS, J., concurs in result only with an opinion, in which TANENBAUM, J., concurs. TANENBAUM, J., concurs in result only with an opinion, in which BARRIOS, J., concurs.