The Florida Supreme Court has answered “no” to a question from the U.S. Court of Appeals for the Eleventh Circuit about whether a prevailing-party attorney’s fee provision in an easement agreement runs with the land under Florida law. In RJ’s International Trading, LLC v. Crown Castle South, LLC, No. SC2024-0547, decided October 29, 2026, the Court held that a promise to pay attorney’s fees is not an obligation that binds successors to the land. Justice Grosshans wrote the opinion. Two Justices concurred in result only, each with a separate opinion.
The question
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 answered it in the negative and returned the case to the Eleventh Circuit for further proceedings.
The facts
More than three decades ago, Hidden Valley Corporation bought two neighboring Miami properties. It leased one to BellSouth Mobility and gave BellSouth and its successors permission to use part of the adjacent property it retained for telecommunication purposes. A section titled “Remedies for Breach” entitles the prevailing party in a suit to enforce the agreement to reasonable attorney’s fees and court costs from the non-prevailing party.
After multiple transfers, RJ’s International Trading, LLC (RJI) owned one of the properties subject to the easement, and Crown Castle South, LLC, a BellSouth sublessee, could use part of it through the easement. In 2020, Crown Castle excavated parts of RJI’s land beyond the easement and installed underground fiber optic cables, and RJI sued in federal court. After a six-day trial, the jury awarded RJI $1 for breach of the easement agreement and $40,000 for trespass.
RJI then sought attorney’s fees under the easement, arguing the provision was a real covenant binding successors, including Crown Castle. Crown Castle argued it did not “touch and concern” the land. The district court denied the request, and after RJI appealed, the Eleventh Circuit certified the question.
The test the Court applied
The Court said three requirements must be met for a covenant to run with the land: the original contracting parties must intend successors to be bound, successors must have notice of the covenant, and the covenant must touch and concern the land. It cited Hayslip v. U.S. Home Corp., 336 So. 3d 207 (Fla. 2022), and called the third requirement dispositive.
Some Florida decisions spoke of enhancing the land’s value; others focused on use, occupation, or enjoyment. The Court adopted the latter, stating that “courts should consider whether the obligation is sufficiently connected to how the land is used, occupied, or enjoyed.”
The holding
Applying that test, the Court found the fee provision “simply too attenuated from the use, enjoyment, or occupation of the land to touch and concern it.” The provision does not restrict how RJI’s land can be used, does not govern who can use it, and does not alter the parties’ rights or remedies with respect to the property itself. The Court relied on Caulk v. Orange County, 661 So. 2d 932 (Fla. 5th DCA 1995), which held that a covenant reserving eminent-domain proceeds did not run with the land.
Hayslip distinguished
RJI argued that Hayslip, where the Court held an arbitration provision in a deed ran with the land, required a different result. The Court disagreed, explaining that the defects in Hayslip were construction-related and physical. A prevailing-party fee provision, by contrast, comes into play only after a dispute has been finally resolved on the merits and serves solely to allocate litigation costs. The Court held Hayslip distinguishable and not controlling. A footnote says whether Hayslip was correctly decided is beyond the scope of the certified question. The Eleventh Circuit had already rejected RJI’s separate argument that it was a “party hereto” under the agreement, and the Supreme Court said that interpretive issue was not before it. The ruling answers only whether this fee provision runs with the land; it does not decide whether a successor could owe fees through its own contractual undertaking.
The concurrences
Chief Justice Couriel and Justices Labarga, Muñiz, and Francis concurred in the majority opinion. Justice Barrios, joined by Justice Tanenbaum, concurred in result only. He agreed the fee provision does not run with the land but wrote that the “used, occupied, or enjoyed” rule carries a requirement that the covenant’s subject matter have a direct effect on the physical use of the property. He said he could not square that rule with Hayslip, which he would call an outlier.
Justice Tanenbaum, joined by Justice Barrios, also concurred in result only. He joined Justice Barrios’s opinion and wrote separately to say a prevailing-party fee provision cannot ever be a real covenant, because it is a bilateral agreement with mutuality of obligation rather than the kind of covenant that touches and concerns land.
The opinion is not final until the time to file a rehearing motion expires and, if one is filed, it is determined.
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