Although Florida Homeowners Associations and Condo Associations are allowed to establish use and occupancy restrictions and rules, state and federal law provide important protections for owners against restrictions that are unreasonable, arbitrary, or discriminatory. Any “restrictive covenants” must be “reasonable and rationally related to a permissible state objective.” An experienced Florida condo attorney can assist you in challenging a restrictive covenant your HOA or Condo Association is seeking to enforce against you. The first step is understanding your legal rights as a Florida condo owner.
The federal Fair Housing Act (FHA) and the Florida Fair Housing Act prohibit discrimination based on race, color, national origin, sex, handicap, familial status, or religion. The Constitution prohibits states from denying individuals the “equal protection of its laws.” Under the FHA, Condo Associations and HOAs are required to provide reasonable accommodation in rules, policies, practices, or services when requested. By way of example, in the context of pets-only restriction and a request to keep a service dog or emotional support animal, the HOA or Condo Association cannot discriminate against disabled persons. What this means is that if the request for accommodation is denied, a court will examine whether the Association’s actions deprived the owner of the “full enjoyment of the premises,” as required by the FHA.
Importantly, the court’s analysis of whether there has been improper discrimination will include not only whether there has been intentional discriminitory conduct towards a handicapped person, but also whether there has been incidental discrimination (meaning an act that results in making property unavailable to a disabled person), or whether the Association has failed to make a reasonable accommodation that would allow a handicapped person the enjoyment of the chosen residence.
Any restrictive covenants should be set forth in the Association’s Declaration and/or Rules. If there are 150 or more units in your Association, these documents must be posted to the Association’s website, in addition to being available in hard copy.
Keep in mind that covenants and restrictions form the foundation of an HOA or Condo Association and are treated by courts as a contract between the owner and the Association. When owners take title within an Association, they implicitly accept and agree to abide by the declaration of covenants. That said, each and every restrictive covenant must promote a substantial interest of the community and cannot be discriminatory, arbitrary or unreasonable, either as written or in its enforcement.
In many cases examining the legality of a restrictive covenant, courts have found that although the restriction is not by itself (“per se”) improper, it is being enforced in an arbitrary manner, thereby rendering it invalid. This is referred to as “selective enforcement” and it violates the FHA and the Constitution. In one of the key cases on selective enforcement, the Florida Supreme Court held that the Condo Association had selectively and arbitrarily enforced its no children under 12 restriction against an owner with children under 12 because at the time of his purchase at least six other children under the age of 12 were already living in the condominium complex.
Florida courts have also found improper selective enforcement when an association allowed cats but not dogs, despite its prohibition against pets other than fish or birds, and when an association enforced its rule prohibiting boats against the owners who parked in open parking spaces but declined to enforce it against owners parking their boats in enclosed garages.
If you think you are the victim of selective enforcement by your Condo Association or wish to challenge unreasonable restrictive covenants, we welcome you to contact us at (954) 966-3909.
We serve the legal needs of individual condominium owners, home owners and cooperative owners in resolving disputes with their associations throughout Florida, including Broward, Dade and Palm Beach Counties, as well as Hollywood, Davie, Pembroke Pines, Hallandale, Sunny Isles, Aventura, Miami, North Miami, Brickell, Boca Raton, West Palm Beach, and Naples. We do not represent associations.
Please note that free case evaluation is by telephone and does not include legal advice. Office consults with legal advice are available on a flat fee basis.