Monthly Archives: July 2013

Architectural Controls (Community Association Quarterly)

Homeowners’ Association Architectural Controls

A homeowners’ association may adopt written standards to control the external aesthetics of the property within its purview. To be enforceable, the architectural controls must be set forth in the declaration or other published guidelines authorized by the declaration. The board of directors, or any architectural committee, derives its authority to review and approve parcel improvement plans and specifications from these published standards. If set forth in the declaration or other publication, the board or other review committee may review and approve plans and specifications for the location, size, type, or external appearance of any structure or other improvement on an owner’s parcel.1
The declaration of covenants or other published guidelines may also provide options for materials that may be used in planned improvements, the size and design of the improvement, and the location of the improvement on the parcel. If the declaration or published guidelines provide such options, the association may not restrict the right of a parcel owner to select from the available options.2 The declaration or published guidelines and standards may also provide for specific setback limitations. If they do not, the county or municipal setback limitations apply, and the association may not enforce any setback limitation that is inconsistent with the applicable county or municipal standards.3
Chapter 720 provides that the parcel owners are entitled to the rights and privileges set forth in the architectural controls of the declaration or other published guidelines. A homeowners’ association may not unreasonably infringe or impair owners’ right to improve their property in accordance with the written standards. If the association or any architectural committee “unreasonably, knowingly, and willfully” infringes on an owner’s right to improve his or her property in accordance with the written architectural controls, the owner has a statutory cause of action for damages, costs, and reasonable attorney’s fees.4

Chapter 720 prohibits certain types of aesthetic controls. For instance, parcel owners may not be prevented from displaying a reasonably sized sign showing that the owner has contracted for security services within 10 feet of the entrance to the home.5 The owner may also display one removable United States flag or official flag of the State of Florida in a respectful manner. Parcels owners can also display, in a respectful manner, one removable official flag, not larger than 4 1/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag.6 Homeowners are also allowed to erect a freestanding flagpole up to 20 feet high on any portion of their property, so long as the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. This is subject to all building codes, zoning setbacks, and other governmental regulations. The homeowner may display from the flagpole one official United States flag, not larger than 4 1/2 feet by 6 feet, and one additional official flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. The additional flag must be equal in size or smaller than the United States flag.7 Owners have a statutory cause of action to file suit to enjoin the enforcement of any covenant or rule that operates to deprive the owner of these rights.8
A homeowners’ association is also prohibited from enforcing any covenant or rule that infringes an owner’s right to install “Florida-friendly landscaping.”9 This includes “landscapes that conserve water, protect the environment, are adaptable to local conditions, and are drought tolerant.” Florida-friendly landscaping employs methods aimed at “efficient watering, appropriate fertilization, mulching, attraction of wildlife, responsible management of yard pests, recycling yard waste, reduction of stormwater runoff, and waterfront protection.”10
In addition, any parcel owner may construct an access ramp to accommodate an occupant with a medical necessity or disability that requires a ramp for egress and ingress. This is subject to certain guidelines: 1) the ramp must be as unobtrusive as possible; 2) the ramp must blend with the existing aesthetics of the parcel; 3) the ramp must be reasonably sized for the intended use; 4) the plans for the ramp must be submitted to the homeowners’ association in advance; and 5) the association may request reasonable modifications to achieve architectural consistency with the surroundings. The parcel owner must submit an affidavit from a physician attesting to the medical necessity of the access ramp. The certification of disability required for issuance of disabled parking permits pursuant to Fla. Stat. § 320.0848 will satisfy this requirement.11

Condominium Association Aesthetic Controls

In condominiums, the owners typically have no options for improving the common elements or other condominium property outside the walls of their units. They are also typically free from the burden of having to maintain the external elements of the condominium building, landscaping, common elements, and condominium property. The Condominium Association controls the external aesthetics of the condominium building and the surrounding property.
Certain decorations, however, are permitted by statute. Condominium associations may not prevent unit owners from displaying, in a respectful manner, one portable, removable United States flag. On Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, condominium associations may not prevent owners from displaying, in a respectful manner, portable, removable official flags, not larger than 4 1/2 feet by 6 feet that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard.12 Additionally, condominium associations may not prevent unit owners from attaching a religious object not to exceed 3 inches wide, 6 inches high, and 1.5 inches deep on the owner’s door frame or mantel.13

1     Fla. Stat. § 720.3035 (1) (2012).
2     Fla. Stat. § 720.3035 (2) (2012).
3     Fla. Stat. § 720.3035 (3) (2012).
4     Fla. Stat. § 720.3035 (4) (2012).
5     Fla. Stat. § 720.304 (6) (2012).
6     Fla. Stat. § 720.304 (2)(a) (2012).
7     Fla. Stat. § 720.304 (2)(b) (2012).
8     Fla. Stat. § 720.304 (3) (2012).
9     Fla. Stat. § 720.3075 (4) (2012).
10     Fla. Stat. § 373.185 (1)(b) (2012).
11     Fla. Stat. § 720.304 (5) (2012).
12     Fla. Stat. § 718.113 (4) (2012).
13     Fla. Stat. § 718.113 (6) (2012).


Fair Housing Act Claim Analysis (Community Association Quarterly)


In Florida, fair housing litigation typically includes just a few distinct types of claims. Claims often arise from alleged discrimination in the sale or rental of housing. Florida Statutes § 760.23 states, “It is unlawful to refuse to sell or rent … or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.” Examples of this may include a condominium board’s refusal to approve an owner’s lease to a family with children based on an outdated rule prohibiting children in the building. Claims will also arise from discrimination in the conditions or privileges of sale or rental. Florida Statutes § 760.23 prohibits discrimination in the “conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion.” For example, a property manager may selectively enforce the community’s parking rules against a Persian-American family based on bias against their national origin.

In addition, Florida fair housing litigation often includes claims arising from a housing provider’s alleged refusal to make accommodations in rules or services for handicapped persons. Discrimination includes any “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.”1 For example, a condominium board may refuse to give an exception to its no-pet rule to disabled persons needing service or emotional support animals.

Each of these types of claims implicates both the Federal and Florida Fair Housing Acts. Florida courts construing the Florida Fair Housing Act have stated that the Federal and Florida Fair Housing Acts are “substantively identical.”2 Federal court discussions of the Federal Fair Housing Act are persuasive to Florida courts and their construction of the Florida Fair Housing Act. Accordingly, the Federal and Florida Fair Housing Acts are discussed in conjunction below.

Standing to Bring a Claim

Standing is simple to establish under the Fair Housing Act. Any person may sue for an alleged violation of the Fair Housing Act if they claim to have been injured by a discriminatory housing practice, or believe they will be injured by a discriminatory housing practice that is about to occur. The plaintiff need not belong to a protected class and does not have to show they were the target of the discriminatory housing practice.

The Fair Housing Act describes any person who claims to have been injured by a discriminatory housing practice as an “aggrieved person.” “Aggrieved person” is given a broad definition by the Fair Housing Act. Standing under the Act is as expansive as the Constitution’s minimum case or controversy requirements.3 That is to say, the plaintiff need only show they personally suffered some actual or threatened injury as a result of the defendant’s alleged unlawful conduct.4

For instance, the court in Savanna Club Worship Service, Inc. v. Savanna Club Homeowners’ Association, Inc. found that a religious group had standing to sue a homeowners’ association for the right to use its common areas for worship services even though the religious group was not a member of the association and not entitled to use the community’s common areas at all. The court pointed to the religious group’s allegations that the homeowners’ association denied the religious group the right to hold meetings solely based upon the religious aspects of its meetings, but that the Association permitted other groups to meet freely.5 This provided the court with enough facts to determine that the plaintiff had standing to sue under the Act.

Discrimination in Sale or Rental

Florida courts have analogized Fair Housing Act claims to Title VII employment discrimination claims. In so doing, courts apply an analysis to Fair Housing Act claims that is similar to that employed in Title VII claims.6 As such, a plaintiff may establish a Fair Housing Act violation by showing either (1) the defendant was motivated by intent to discriminate against the plaintiff, or (2) the defendant’s otherwise neutral action has a discriminatory effect (“disparate impact”).7

Intentional Discrimination

If discriminatory intent is claimed, a plaintiff must show that the defendant intended or was motivated to discriminate against persons who are members of a protected class.8 Although increasingly rare, discriminatory intent can be proven by direct evidence, such as a statement of the defendant that demonstrates animus toward a protected class. More commonly, though, and in the absence of direct evidence, the courts utilize a four factor test to evaluate whether circumstantial evidence shows discriminatory intent. The courts consider: (1) the discriminatory or segregative effect of the allegedly discriminatory housing practice (“disparate impact”); (2) the historical background of the surrounding circumstances, including prior exclusionary behaviors; (3) the sequence of events leading up to the challenged actions; and (4) whether there were any departures from standard practices.9

In cases of alleged circumstantial evidence of intentional discrimination, Fair Housing Act claims are subject to the McDonnell Douglas Corp. v. Green burden-shifting analysis.10 The plaintiff has the initial burden of establishing a prima facie case. If the burden is met, the plaintiff is entitled to a rebuttable presumption that the defendant engaged in unlawful discrimination.11 The burden then shifts to the defendant to establish a legitimate non-discriminatory reason for taking the action. If the defendant produces a legitimate non-discriminatory reason, then the burden returns to the plaintiff to establish that the defendant’s reason is merely a pretext for discrimination.12 A plaintiff may demonstrate that the defendant’s reason is merely a pretext by demonstrating inconsistencies and contradictions in defendant’s position and by putting forth evidence that animus toward the protected class motivated the defendant’s actions.13

Disparate Impact

Disparate impact analysis is applied to a facially neutral policy or practice to determine whether the policy or practice has a segregative effect or “makes housing options significantly more restrictive for members of a protected group than for persons outside that group.”14 Courts have stated that when a facially neutral housing practice has a disparate impact on a protected group, it produces two kinds of discriminatory effects: (1) the facially neutral housing practice has an adverse impact on the particular protected group and (2) there is harm to the community generally in the perpetuation of segregation.15

Typically, discriminatory effect in disparate impact claims is demonstrated by statistics.16 In analyzing these cases, courts favor proportional statistics over a simple examination of absolute numbers. For instance, in the case of Huntington Branch, N.A.A.C.P. v. Town of Huntington,17 the Court examined census figures in evaluating the discriminatory effect of a suburb’s zoning regulation, which restricted private multi-family housing projects to a largely minority “urban renewal area.”

In that case, the court was asked to determine whether the Town Board’s refusal to amend the regulation to allow construction of subsidized housing in a white neighborhood violated the Fair Housing Act. At the time, Huntington was comprised of approximately 200,000 people. The court examined census figures from 1980, which suggested that 95% of Huntington’s residents were white. The regulation in question only permitted private construction of multi-family housing in the Town’s “urban renewal area,” where 52% of the residents were minorities.

While the lower court recognized that a disproportionately large percentage of households using subsidized rental units are minorities, the court erroneously focused on the larger absolute number of poor whites in the community (22,160) versus poor minorities (3,671). In so doing, the lower court concluded that if the housing project were constructed in the “urban renewal area,” the tenants “might not come disproportionately from minority groups.” In wrongly focusing on the greater absolute number of poor whites compared with indigent minorities, the lower court underestimated the disproportionate impact of the zoning regulation. The court failed to recognize that this regulation impeded integration by restricting private construction of low-income housing needed disproportionately by minorities to an area already 52% minority.18

Reasonable Accommodation

Courts utilize a wholly different approach to reasonable accommodation claims. A “reasonable accommodation” claim will arise if a housing provider refuses to make a change or exception to a rule, practice, or service that may be necessary for a disabled person to have an equal opportunity to use and enjoy a dwelling. This includes the disabled person’s use and enjoyment of public and common areas. In order to prevail on a Fair Housing Act reasonable accommodation claim, a plaintiff must establish that (1) he is disabled within the meaning of the Act, (2) he requested a reasonable accommodation, (3) such accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling, and (4) defendants refused to make the requested accommodation.19

A person is handicapped for purposes of the Act if they suffer from a “physical or mental impairment which substantially limits one or more of such person’s major life activities,” if they have “a record of having such an impairment,” or if they are “regarded as having such an impairment.”20 Major life activities include functions such as “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”21 “[A]n individual faces a ‘substantial limitation’ when he is (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.”22 Sex offenders are not covered by the Act.23 In addition, “handicap” is not defined so broadly to include persons currently using or addicted to a controlled substance;24 however the Act does protect persons recovering from substance abuse.25

A plaintiff must actually request an accommodation and be refused in order to bring a reasonable accommodation claim under the Act.26 With that being said, the request need not be in writing.27 Whether a requested accommodation is required by law is “highly fact-specific, requiring case-by-case determination.”28 No burden-shifting analysis is employed in these cases. The plaintiff bears the burden at all times of proving that a proposed accommodation is reasonable.29

Necessity and Reasonableness

The Fair Housing Act only prohibits denial of reasonable accommodations that are necessary to the plaintiff’s use and enjoyment of the property. To demonstrate that the requested accommodation is necessary the disabled person must show that the desired accommodation will ameliorate the effects of the disability.30 There must be a direct link between the requested accommodation and the equal opportunity to be provided to the handicapped person.31 Reasonable accommodations are meant to address needs, not the personal preferences of disabled persons. It is insufficient to show that a refused accommodation is simply convenient or desired; rather, it must be necessary.32 The Act only ensures that the handicapped person is provided an equal opportunity to use and enjoy a dwelling, not a better opportunity than members of the surrounding community.33

For instance, the court in Bryant Woods Inn, Inc. v. Howard County, Md. examined an alleged failure on the part of the Planning Board of Howard County, Maryland to waive zoning regulations to reasonably accommodate the expansion of a group home for handicapped persons.34 The group home, Bryant Woods Inn, wanted to expand from eight residents to 15 residents. The relevant zoning regulation required the group home to provide at least eight parking spaces for the 15 anticipated residents. The Planning Board denied the request for a variance because it found that the group home’s proposed parking plan only accommodated up to six vehicles. It found that the group home’s existing use generated parking congestion, which would only be exacerbated by the proposed expansion. The Planning Board also found that denial of the variance would not limit housing opportunities for the disabled, as Howard County had over 30 assisted-living facilities providing housing opportunities for the elderly and disabled. The Planning Board also concluded that eight residents is a reasonable number for the economic viability of the group home.

In examining the fair housing allegations, the court found that the group home failed to prove the necessity of their requested accommodation. The zoning regulation does not prohibit group housing for individuals with handicaps. As such, the requested zoning variance was not aimed at permitting handicapped persons to live in group homes, but at expanding the group home size from eight to 15 persons. Bryant Woods Inn introduced no evidence that group homes are not therapeutically or financially viable with only eight residents. Thus, the court found nothing to suggest that expansion of the group home from eight to 15 residents is necessary to accommodate individuals with handicaps. The court found that the requested accommodation did not ameliorate the effects of the residents’ disabilities, and only had the effect of benefiting the group home financially. The court thus concluded that requiring Howard County to grant the zoning variance would provide an advantage to Bryant Woods Inn that is not enjoyed by group homes that do not serve disabled persons-something not required by the Fair Housing Act.35

A request for an accommodation may also be denied if providing the accommodation is not reasonable. An accommodation is not reasonable if it imposes undue financial and administrative burdens on the housing provider or it if would fundamentally alter the nature of their operations.36 Whether the requested accommodation would impose an undue financial and administrative burden is determined on a case-by-case basis. Courts consider several factors, such as cost, the financial resources of the provider, the benefits that the accommodation would provide to the disabled person, and the availability of less-costly alternative accommodations that would ameliorate the effects of the disability.37 If an alternative accommodation would effectively meet the disability-related needs and is reasonable, the provider must grant it.

However, the financial burden must be significant before the court will determine that it impacts the reasonableness of the proposed accommodation. The court will not be concerned if the cost is only minor and the accommodation is financially feasible for the defendant. In Davis v. Lane Management, LLC, for instance, the Court held the defendant violated the Fair Housing Act in refusing to make elevator repairs even though the defendant considered the repairs cost prohibitive.38

Relief from Discriminatory Housing Practice

Both the Federal and Florida Fair Housing Acts allow courts to impose actual damages and injunctions on defendants found liable for discrimination in housing.39 This may include damages for humiliation and embarrassment suffered by the plaintiff.40 Punitive damages may also be granted when the defendant “exhibited a callous indifference to the federally protected rights of the plaintiff.”41 If the matter is instituted by the Florida Commission on Human Relations or the United States Department of Housing and Urban Development in an administrative hearing, the judge may impose maximum civil penalties as follows:

1. Up to $10,000, if the respondent has not previously been found guilty of a violation.

2. Up to $25,000, if the respondent has been found guilty of one prior violation within the preceding 5 years.

3. Up to $50,000, if the respondent has been found guilty of two or more violations within the preceding 7 years.42

The Federal Fair Housing Act makes attorney’s fees available to the “prevailing party,”43 but case law construing the Act does not allow for fees to the plaintiff and the defendant on an equal basis. Prevailing defendants are treated differently from prevailing plaintiffs and are only entitled to receive fees “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.”44 The Florida Fair Housing Act is much more clear and states, “If the court finds that a discriminatory housing practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including injunctive and other equitable relief, actual and punitive damages, and reasonable attorney’s fees and costs.”45 There is no language in the Florida Act suggesting that fees may be available to a prevailing defendant.


1 Fla. Stat. § 760.23(9)(b)

2 Loren v. Sasser, 309 F.3d 1296, 1300 n.9 (11th Cir.2002); Dornbach v. Holley, 854 So.2d 211, 213 (Fla. 2d DCA 2002) (stating that “[i]n considering the application of the Florida Fair Housing Act …. the application of the FHAA by the federal courts … [is] instructive and persuasive.”).

3 Savanna Club Worship Service, Inc. v. Savanna Club Homeowners’ Ass’n, Inc., 456 F. Supp. 2d 1223, 1226-27 (S.D. Fla. 2005).

4 Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979).

5 Savanna Club Worship Service, Inc. v. Savanna Club Homeowners’ Ass’n, Inc., 456 F. Supp. 2d 1223, (S.D. Fla. 2005).

6 Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997).

7 Larkin v. State of Mich. Dept. of Soc. Services, 89 F.3d 285, 289 (6th Cir. 1996).

8 Reese v. Miami-Dade County, 242 F. Supp. 2d 1292, 1301 (S.D. Fla. 2002) aff’d, 77 F. App’x 506 (11th Cir. 2003) for text, see 02-16855, 2003 WL 22025458 (11th Cir. July 14, 2003).

9 Bonasera v. City of Norcross, 342 F. App’x 581, 585 (11th Cir. 2009); (adopting the multi-factor test set forth in United States v. Hous. Auth. of City of Chickasaw, 504 F. Supp. 716, 727 (S.D. Ala. 1980)).

10 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

11 Secretary, U.S. Dept. of Housing & Urban Development, on Behalf of Herron v. Blackwell, 908 F.2d 864, 871 (11th Cir. 1990).

12 Savanna Club Worship Serv., Inc. v. Savanna Club Homeowners’ Ass’n, Inc., 456 F. Supp. 2d 1223, 1231-32 (S.D. Fla. 2005).

13 Secretary, U.S. Dept. of Housing & Urban Development, on Behalf of Herron v. Blackwell, 908 F.2d 864, 871 (11th Cir. 1990).

14 Bonasera v. City of Norcross, 342 F. App’x 581, 585 (11th Cir. 2009)(citing Housing Investors, Inc. v. City of Clanton, Ala., 68 F. Supp. 2d 1287, 1298 (M.D. Ala. 1999)).

15 Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977).

16 Hallmark Developers, Inc. v. Fulton County, Ga., 466 F.3d 1276, 1286 (11th Cir. 2006).

17 Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 928 (2d Cir. 1988) aff’d in part sub nom. Town of Huntington, N.Y. v. Huntington Branch, N.A.A.C.P., 488 U.S. 15 (1988).

18 Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 938 (2d Cir. 1988) aff’d in part sub nom. Town of Huntington, N.Y. v. Huntington Branch, N.A.A.C.P., 488 U.S. 15 (1988).

19 Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218 (11th Cir. 2008)

20 42 U.S.C. § 3602(h)

21 24 C.F.R. § 100.201(b)

22 Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997).

23 Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act 4 (May 17, 2004).

24 United States v. Southern Management Corp., 955 F.2d 914, 922 (4th Cir. 1992).

25 Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act 4 (May 17, 2004).

26 Schwarz v. City of Treasure Island, 544 F.3d 1201, 1219 (11th Cir. 2008).

27 Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act 10 (May 17, 2004).

28 United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994).

29 Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002).

30 Essling’s Homes Plus, Inc., a Minn. Corp. v. City of St. Paul, a Minn. Corp., 356 F. Supp. 2d 971, 980 (D. Minn. 2004).

31 In re Kenna Homes Co-op. Corp., 557 S.E.2d 787, 794 (2001).

32 Bachman v. Swan Harbour Ass’n, 653 N.W.2d 415, 429 (2002).

33 Schwarz v. City of Treasure Island, 544 F.3d 1201, 1226 (11th Cir. 2008).

34 Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th Cir. 1997).

35 Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 605 (4th Cir. 1997).

36 Bachman v. Swan Harbour Ass’n, 420, 653 N.W.2d 415, 430 (2002).

37 Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act 7 (May 17, 2004).

38 Davis v. Lane Management, LLC, 524 F. Supp. 2d 1375, 1378 (S.D. Fla. 2007).

39 42 U.S.C. § 3613(c); Fla. Stat. § 760.35(2)

40 Secretary, U.S. Dept. of Housing & Urban Development, on Behalf of Herron v. Blackwell, 908 F.2d 864, 872 (11th Cir. 1990).

41 Davis v. Lane Mgmt., LLC, 524 F. Supp. 2d 1375, 1377 (S.D. Fla. 2007).

42 42 U.S.C. § 3612(g)(3); Fla. Stat. § 760.34(7)

43 42 U.S.C. § 3613(c)(2)

44 Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 606 (4th Cir. 1997)(quoting Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421 (1978)).

45 Fla. Stat. § 760.35(2)

Transfer Restrictions (Community Association Quarterly)

There is a great deal of community association litigation on the ability of homeowners’ and condominium associations to place restrictions on property transfers. Those who challenge restrictions on property transfers allege their right to transfer their property is being unreasonably restrained. Restrictions that unreasonably restrain the right of a property owner to transfer his or her property are known as unreasonable restraints on alienation. In Davis v. Geyer, the Supreme Court of Florida analyzed a property transaction in which property had been conveyed by warranty deed and simultaneously the parties executed an agreement containing a provision that no sale of the property would be made by the grantee until that sale was approved by the grantor. The Court noted that it had long been the law in Florida that a condition annexed to the grant or devise of land which prohibited the grantee or devisee from alienating that land was void. The Court stated that after an absolute conveyance in fee simple, a clause prohibiting the grantee from conveying without the consent of the grantor is repugnant and void, as is a condition to sell only to a particular person or persons.1
Courts in this line of cases determine the validity of transfer restrictions by measuring the duration of the restraint, the type of alienation precluded and the size of the class of persons prevented from taking the property interest. The court in Camino Gardens Ass’n v. McKim, states, “When determining the validity of restraints on alienation, courts must measure such restraints in terms of their duration, type of alienation precluded, or the size of the class precluded from taking.”2
A restrictive covenant found in a community association’s declaration is conceptually different from an arbitrary and absolute right of a grantor to approve a grantee’s subsequent purchaser. The difference is found in the public policies at issue. While the rule against restraints on alienation is meant to further the public policy in favor of fostering economic and commercial development, in the context of community associations there is a competing public policy in favor of protecting the right to self-determination of the community association, and protecting the welfare and property values of the community as a whole. Florida courts recognize the right of community associations to screen prospective purchasers and tenants. The most common screening procedure is a simple criminal history background check to ensure the community is free from those who may pose a threat to the health and safety of the other residents. Communities may also curtail owners’ right to lease altogether by imposing minimum lease durations and restrictions on the number of times an owner can lease in a given period. The purpose of this type of restriction is to discourage an environment of transiency, where the short term occupants have little investment in preserving the quality and character of the community.
In an effort to balance competing public policies, Florida Courts have adopted and applied a reasonableness test with respect to restraints on alienation. In determining the validity of a condominium association’s leasing restrictions, the court in Seagate Condo. Ass’n v. Duffy applied the reasonableness test by analyzing the leasing restriction within the context of the uniqueness of community association living. The dispute in this case arose over the adoption of a leasing restriction that was approved by ninety-six percent of the unit owners. The restriction prohibited “the leasing of units to others as a regular practice for business, speculative, investment or other similar purposes.” The provision detailing the restriction allowed the board under special circumstances, and to avoid undue hardship, to approve leases of at least four consecutive months but no more than twelve consecutive months. The court examined the leasing restrictions and considered whether the “restriction is reasonable given the context in which it was promulgated, i.e., the condominium living arrangement.” The court also asked whether the restriction, as a restraint on alienation, was valid in terms of duration, “type of alienation precluded, and the size of the class precluded from taking.”3
The court in Seagate Condo. Ass’n v. Duffy concluded that the restriction was reasonable in that courts recognize the problems of condominium living and the need for a greater degree of limitation upon the rights of the individual owner. The court cites to Hidden Harbour Estates v. Norman for the proposition that “inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy…”4
The court reasoned that given the unique problems of condominium living in general and the special problems associated with living in a tourism community in South Florida in particular, the association’s objective of inhibiting transiency to foster a residential atmosphere in their community is entirely reasonable. “The attainment of this community goal outweighs the social value of retaining for the individual unit owner the absolutely unqualified right to dispose of his property in any way and for such duration or purpose as he alone so desires.”5
The court also determined the leasing restriction was neither an unlimited nor an unreasonable restraint on alienation. The court reasoned that the restriction is not unlimited for several reasons. It prohibits only a specific form of alienation, i.e., leasing. Additionally, the condominium association will consider its hardship cases. Finally, the restriction can be terminated at any time by a vote of the condominium unit owners.6 Keep in mind, following this ruling, the Florida Legislature adopted Fla. Stat. § 718.110 (13), which provides that amendments prohibiting owners from renting their units, setting minimum or maximum rental terms, or limiting the number of times a unit can be rented during a period, are only effective against owners who consent to the amendment and owners who acquire title after the effective date of the amendment.7
Both Chapter 720 and the Condominium Act recognize an association’s ability to approve or disapprove a lease or other transfer. Chapter 720 mentions it in passing in discussing the association’s obligation to maintain official records, stating that notwithstanding the association’s obligation to maintain official records and make them available for inspection and photocopying by members, the association may not allow access to “Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.”8 The Condominium Act provides an additional statutory ground for denial of a prospective lease for associations authorized by their declaration or bylaws to approve or disapprove a proposed lease of a unit. Fla. Stat. § 718.116 states that an association may disapprove a proposed lease if the unit owner is delinquent in the payment of an assessment.9
The Condominium Act also sets forth certain regulations regarding covenants on leasing and transfer. As stated above, the Condominium Act does not allow the association to impose a restriction prohibiting rentals, and restrictions on lease terms, against owners who do not consent, unless the owner purchased the unit after the effective date of the restrictions.10 In addition, the association may not make any charge in connection with a lease, mortgage, or transfer unless the association is required to approve the transfer and the fee is provided for in the governing documents. Any such fee may not exceed $100 per applicant. A husband and wife is considered one applicant, as is a parent and child. The association may not charge for approval of a lease renewal. If permitted by the declaration or bylaws, the association may require the tenant to place a security deposit into an escrow account maintained by the association in an amount not to exceed one month’s rent. Disputes regarding this deposit are governed by the Florida Residential Landlord and Tenant .11

1 Davis v. Geyer, 51 Fla. 362, 370, 9 So. 2d 727, 730 (1942).
2 Camino Gardens Ass’n v. McKim, 612 So. 2d 636, 639 (Fla. 4th DCA 1993).
3 Seagate Condo. Ass’n v. Duffy, 330 So. 2d 484, 486 (Fla. 4th DCA 1976).
4 Hidden Harbour Estates v. Norman, 309 So. 2d 180, 181-82 (Fla. 4th DCA 1975).
5 Seagate Condo. Ass’n v. Duffy, 330 So. 2d 484, 486 (Fla. 4th DCA 1976).
6 Seagate Condo. Ass’n v. Duffy, 330 So. 2d 484, 486 (Fla. 4th DCA 1976).
7 Fla. Stat. § 718.110 (13) (2012).
8 Fla. Stat. § 720.303 (5) (C) (2) (2012).
9 Fla. Stat. § 718.116 (4) (2012).
10 Fla. Stat. § 718.110 (13) (2012).
11 Fla. Stat. § 718.112 (2) (i) (2012).

Introduction to Fair Housing Litigation (Community Association Quarterly)

Community associations, through the board of directors, have a great deal of control over the provision of housing in their communities and the conditions and privileges associated therewith. Whether they are aware of it or not, the membership of the community entrusts an owner with significant power in electing them to the board. The directors establish the rules and regulations, and they manage and operate the amenities provided to their residents. In many cases they may also decide who can live in their communities, having been charged with the power to approve or deny prospective residents.

The board constantly faces the challenge of making tough decisions on the use and management of others’ property. It is a thankless job. The decisions that the board makes in the day-to-day management of the community are often met with protest and resistance. This is especially true when the board makes decisions on use of property, when they issue a notice of violation of covenants and restrictions, when the board disapproves an application for property transfer or lease, or when the board develops its budget and decides to spend or not to spend the community’s money on projects that impact use and enjoyment of the property.

While the Association’s governing documents and Florida Statutes provide procedural guidance, they do

not define what is best for any given community, and they do not instruct the board on how best to effectuate the majority’s views for the management of the property. The members of the board are faced with the responsibility of promoting the health, safety and prosperity of their communities, which they may define in vastly different ways depending on their personal inclinations and life views. Of course, the individual members of the board step into their role with all of their personality, education, past experiences, biases and prejudices, whether good or bad.

Unfortunately, while we have enjoyed the benefit of almost 150 years of fair housing laws since Congress enacted the Civil Rights Act of 1866, discrimination in housing is still a very real and prevalent social ill. Clearly, if the board’s actions are based on personal bias against a resident, or discriminatory animus against the class of protected persons to which the resident or prospective resident belongs, those actions are in violation of either state or federal law. The board is prohibited by state law from selective enforcement of the community association’s covenants and restrictions and the board is prohibited by both state and federal law from enforcing those restrictions in a way that discriminates on the basis of race, color, national origin, sex, handicap, familial status, or religion. Even if the members of the board harbor no ill-will toward any particular protected class-even if they have no intent to discriminate-they cannot take any action that has a discriminatory effect on members of a protected group. In addition, the board is bound by law to make reasonable accommodations for handicapped persons so that no matter their disability they are given the same opportunity to enjoy the community as everyone else.

While federal and state law prohibits

discrimination in housing, it does not impose a code of civility. It does not guarantee fairness and it does not prevent difficult, harsh decisions made in the best interests of a community, or even foolish and capricious decisions made to satisfy the whims of the board of directors. Even if the board’s motivations are non-discriminatory, given the nature of the board’s responsibility in enforcing the community association’s governing documents-their burden of managing and often restricting use of another’s real property-it is only natural that residents and prospective residents often react by taking offense and assuming that they are being targeted unfairly. When the board reaches out to an owner or resident and criticizes their use of their own property, or when a board’s decision is the only thing standing in between a prospective resident and their home of choice, it often and literally hits too close to home. The individual often fails or refuses to see any legitimacy in the board’s decisions, which may quickly evolve into a false perception that they are being targeted unfairly. Ultimately, they may form a sincere belief that they are being targeted because of animus toward their protected class.

Unfortunately, whether the alleged housing discrimination is bona fide or altogether false is all too often a decision that will ultimately be decided by the court. In light of these considerations, this newsletter will serve as a short guide to fair housing litigation and will discuss growing trends in this area of the law that are particularly relevant to Florida community associations.

Introduction to Covenant Enforcement Disputes (Community Association Quarterly)

By purchasing property in a community governed by a homeowners’ or condominium association, owners agree to comply with the association’s governing documents, rules, and regulations. Chapter 720 and the Condominium Act provide that each member of a Florida community association, their tenants, guests, and invitees, must comply with the governing documents and the rules of the community. This is not a one-way street, however; the association is also bound to comply with its governing documents and rules.1 The governing documents are contracts between the association and the property owners, “circumscribing the extent and limits of the enjoyment and use of real property.”2

Restrictions found in a declaration are presumptively valid. Each owner who purchases his or her property in a community association does so with notice that the property is subject to the restrictions found in the declaration recorded among the public records. The owner is deemed to know about the restrictions and to have willingly accepted them.3 Such restrictions have attributes of covenants running with the land and will only be invalidated if shown to be “wholly arbitrary in their application,” in violation of public policy, or repugnant to a fundamental constitutional right.4

The association’s governing documents typically set forth prohibited uses, architectural controls, and the association’s assessment rights. Individuals give up the freedom to use their property as they wish in order to promote the health, happiness, and welfare of the majority of the owners in the community. This is inherent in the concept of community association living, and is necessary for owners living in close proximity and using shared facilities.

Court will strictly enforce the restrictions of an association’s declaration. It is treated as the association’s private constitution. Strict enforcement of the declaration of covenants “protects the members’ reliance interests in a document which they have knowingly accepted.” In addition, it helps further the public policy in favor of establishing and protecting the stability of community types, providing a real choice among diverse living arrangements.5


1 Fla. Stat. § 720.305 (1) (2012); Fla. Stat. § 718.303 (1) (2012).

2 Woodside Village Condo. Ass’n v. Jahren, 806 So. 2d 452, 456 (Fla. 2002) (quoting Pepe v. Whispering Sands Condo. Ass’n, 351 So. 2d 755, 757 (Fla. 2nd 1977)).

3 Hidden Harbour Estates v. Basso, 393 So. 2d 637, 639 (Fla. 4th DCA 1981).

4 Hidden Harbour Estates v. Basso, 393 So. 2d 637, 640 (Fla. 4th DCA 1981); Pines of Boca Barwood Condo. Ass’n v. Cavouti, 605 So. 2d 984, 985 (Fla. 4th DCA 1992).

5 Aquarian Foundation v. Sholom House, 448 So. 2d 1166, 1168 (Fla. 3d DCA1984).