The Law Offices of Herb M. Milgrim, P.A. is a Florida Law Firm that specializes in representing Condo Owners, Homeowners and Cooperative Owners that have disputes or are contemplating Litigation or a Lawsuit against their Association. We provide prospective clients with a Free Case Evaluation. Once we have been retained we review all of the relevant documents and governing Florida Laws and advise our clients on the best course of action.
This is the 3d part of a 3 part series of articles discussing what condo owners can do when their association tells them they need to get rid of their pet. In part 1 we discussed what you should do if your pet is actually a “service animal” and in part 2 we discussed “emotional support animals.” This third installment discusses the best course of action when your animal is simply your beloved pet.
The best course of action may be to ask your Association Board for a “hardship exemption” if you already own the dog. It is best to do this in writing and include letters from other owners that your dog is well behaved and not a threat to the community.
If the Association has adopted the no pet rule after you have acquired your pet you should be protected by a grandfather clause. What this means is that the Condo Association cannot apply their rules and regulations retroactively. If the rule was enacted before you acquired your pet you can have a Florida Condo Lawyer look into whether the pet restriction was properly recorded and filed with the county where the association is located. If the pet restriction was not properly recorded it may not be legally enforceable. Likewise, if the pet restriction was only adopted by the board as a Rule, and should have been voted on by all the owners as an amendment to the governing documents, this may play a role in whether it is enforceable.
Lastly, you may be able to raise several defenses to enforcement of the pet restriction. Under Florida Case Law an Association may not arbitrarily enforce an otherwise valid restriction. A Condominium Association attempting to enforce a covenant or restriction against one violator, while allowing another to continue violating the same restriction, constitutes selective enforcement that would be contradictory to the equal protection clause of the United States Constitution. In the case of Prisco v. Forest Villas Condominium Apartments, Inc., 847 So.2d 1012 (Fla. 4th DCA 2003), a Broward County Judge was reversed when he granted a summary judgment in favor of the association in their action seeking an injunction barring a resident from keeping a dog on the premises. The Appellate Court held that a Condominium Association that allowed cats, but not dogs, despite prohibition in the condo declaration against pets other than fish or birds, selectively enforced its declaration, and thus the resident who was prohibited from keeping her dog was entitled to the defense of selective enforcement.
While the selective enforcement defense is derived from the defense of estoppel there is another defense that could be available to owners that have kept their pet for a sufficient length of time before the association attempts to enforce it’s pet restriction. The defense of laches is applicable when the association’s inequitable conduct, lack of diligence, delay, and inattention to pursuing enforcement of the pet restriction occurs. What this means is that if you walk your dog past a board member every day for a year and then all of the sudden you get a letter seeking to enforce the pet restriction you may be entitled to raise the defense of laches to overcome enforcement of the pet restriction.
Remember that the Associations keep expensive Law Firms on retainer using your money. Before you try and fight the Association you should contact us to get a free case evaluation. If you retain us we will advise you on the best course of action for you to proceed in successfully fighting the association’s pet restrictions. Call us now at 954-966-3900.