Legal Question in Real Estate Law in Florida

Re: Condo Docs enforcement

AGE OF RESIDENTS. The Florida courts have approved the use of restrictive covenants that limit the age of residents to maintain communities for adult living the Florida Supreme Court stated that age restrictions are a reasonable means to accomplish the ''... lawful purpose of providing appropriate facilities for the differing housing needs of the varying age groups.'' However, such restrictions must be reasonably related to the purpose identified by the Court and may not be applied in a discriminatory, oppressive, or arbitrary manner.

The White Egret opinion reasoned that covenants limiting the age of residents in a private real estate development involve no such exercise of the police power, and persons who do not wish to live in an age-restricted community may choose to purchase land that is not so restricted.

Although approving the concept of age restrictions, the Court refused to enforce the particular covenant at issue in White Egret to prohibit occasional occupancy by the defendant's child because the evidence demonstrated that six other children were living within the complex and the condominium association had not enforced the restriction against those families. The Court found that this constituted arbitrary enforcement.

The Fifth District found that enforcement was appropriately even-handed in Rocek v. Markowitz, in which a deed restriction prohibited occupancy by persons under the age of sixteen years. The court held that the landowner's eleven year-old grandson was properly excluded.

Under the reasoning of the Florida Supreme Court in White Egret, however, it is reasonable to regulate the age of persons residing in an area to provide for the divergent needs of people of different ages. The Rocek court also rejected the argument that White Egret was intended to apply only to condominiums.

PETS. Restrictions or prohibitions on pets have been upheld. For example, the Fourth District Court of Appeal held that a regulation in a declaration of condominium which permitted an individual who owned a dog at the time of the purchase to keep the dog in his or her unit, and which provided that the dog could not be replaced on death or otherwise, was not an unreasonable restriction on the right of an individual to enjoy his or her condominium unit, but was a reasonable restriction that would ultimately produce a community living arrangement whereby no one would be permitted to keep a dog in a unit. However, a declaration that allows pets to be kept on condominium property is superior and controlling over the rules and regulations of the association which attempt to totally preclude pets on the property.

Should you require an attorney to assist you further, then you may contact the undersigned at (305) 769-3000.

Sincerely yours,

Randall Gilbert