August 2003

COVENANTS: A DOG WITH NINE LIVES

What if your neighbor’s barking dog keeps you up at night? Do you think the association can force him or her to remove the dog? Before you complain, you might want to check your association’s restrictions to see what type of pets are allowed and whether the association has enforced what was written.

A recent Florida appellate court decision emphasizes the importance of enforcing restrictions fairly and evenly. In Prisco v. Forest Villas Condominium Apartments, Inc., 28 Fla. L. Weekly D1065 (Fla. 4^th DCA, April 30, 2003), the court ruled that an association’s enforcement of pet restrictions against a dog owner but not against cat owners might be selective enforcement, that is, enforcing its restrictions against some people but not against others.

The Forest Villas Condominium Apartments’ restrictions ban all pets except for fish and birds. After a neighbor complained about barking dogs, the association sued Ms. Prisco to force her to get rid of her dogs. Ms. Prisco claimed that the association was selectively enforcing the rules against her because the association did not enforce the restriction against cat owners.

The association prevailed at first. Refusing to treat dogs and cats alike, the trial court ruled in favor of the association, stating "Cats are not the same as dogs, and the condominium allowing a cat on the premises does not equal to disallowing a dog." The court reasoned that because "dogs clearly bark, cats do not, dogs need to be walked outside of their home, cats do not as they use litter boxes for the most part."

The appellate court disagreed and ruled for Ms. Prisco, stating that dogs and cats should not be treated differently. The court pointed out that the restriction was clear and unambiguous. The restriction provided that other than fish and birds, "no pets whatsoever" shall be allowed. The court explained that the plain intent of the restriction was to prohibit all types of pets except fish and birds. The fact that cats and dogs are different is irrelevant. The court sent the case back to the trial court so that the unit owner could raise her defense of selective enforcement at trial.

This decision points out how important it is for an association to enforce its restrictions fairly and equally. If an association wants to prohibit all pets, make sure that the restriction is adhered to by all owners. If an association starts making exceptions, it may become hard down the road to start enforcing the restrictions. If a restriction is too broad, then consult your association’s attorney concerning possible amendments so you can have an enforceable restriction.

TORTS : YOU WIN SOME, YOU LOSE SOME

Has your association thought about changing its rules? Will the change conflict with rights granted by the Declaration? If so, you may want to think twice before you change your rules.

In National Ventures, Inc. v. Water Glades 300 Condominium Association, 28 Fla. L. Weekly D1375 (Fla. 4^th DCA, June 11, 2003), a Florida appellate court ruled a corporation could sue an association for loss of use of its property after the association amended its rules to limit the number of days guests could use the condominium. Although the decision is somewhat ambiguous, based on conversation with the association’s counsel it appears that the association amended its rules and not its Declaration

In 1978, National Ventures purchased a condominium unit to be used as a vacation facility for company executives. At the time of the purchase, the Declaration allowed for units owned by a corporation to be used by occupants of the corporation’s choice if the corporation provided notice to the association of the occupants identity. Executives of National Ventures used the condominium for 15 years without any problem. In 1993, the Association advised National Ventures that the association amended the rules, limiting non-owner guests to 30 days per year. National Ventures sued the association seeking damages for the loss of use of its property and for continuing to have to pay assessments.

National Ventures then sold its condominium unit but proceeded with its lawsuit because it was deprived of its use from the time of the new rules until the date of sale. This decision points out that an association may subject itself to liability if it impermissibly changes its rules creating a conflict with rights granted by the Declaration. Make sure you follow the proper procedures when you change your rules and consider whether your declaration or bylaws must also be amended. Think about the affect the changes will have on all members!

LEGISLATIVE UPDATE: MRTA REVISIONS

The recent legislative session passed and the governor signed HB 861 which amended Fla. Stat. §712.05, commonly known as the Marketable Records Title to Real Property Act or MRTA. In an attempt to simplify the current requirements, the Act provides that a recorded notice to preserve homeowners’ restrictions may be filed by a homeowners’ association upon approval by two-thirds of the board of directors. The Act also provides that content requirements of a recorded notice may be satisfied by an affidavit affirming the delivery of a statement to its members.

It is important for all homeowner associations to be aware of this Act. Failure to comply can lead to the extinguishment of restrictions. Contact your association’s counsel with any questions regarding who, where or why you must comply with the Act.

FIRM NEWS

The firm’s offices will be closed Monday, September 1, 2003 in observance of Labor Day. Due to the holiday and a planned software update, the firm plans to send September bills the week of August 25, 2003; thus, time incurred at the end of August may be on your October bill.

This information is provided for public information purposes only and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general notice of recent legal changes. This information is not to be considered as legal advice. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected.

© 2003 by Gelfand & Arpe, P.A.