THE PINES OF BOCA BARWOOD CONDOMINIUM ASSOCIATION, INC., APPELLANT,
v.
ALFRED CAVOUTI AND GRACE CAVOUTI, APPELLEES
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The Pines of Boca Barwood Condominium Association appealed a directed verdict in favor of unit owners who violated a pet restriction in the condominium declaration. The court reversed, holding that a pet restriction set forth in the declaration is a category one restriction entitled to a strong presumption of validity, not the more flexible category two standard the trial court applied.
The court held that a pet restriction found in the condominium declaration is a category one restriction, not category two. Category one restrictions are clothed with a strong presumption of validity and can be invalidated only if they are wholly arbitrary, in violation of public policy, or violate constitutional rights. Because the restriction was valid and the unit owners failed to obtain required written permission, the directed verdict was improper.
[1] A restriction in a condominium declaration against pets is a category one restriction, subject to a standard of review for arbitrariness, violation of public policy, or c…
[2] A use restriction adopted by a condominium board of directors, rather than set forth in the declaration, is a category two restriction, reviewed for reasonableness in pro…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Such a restriction is considered a 'covenant running with the land' and is clothed with a strong presumption of validity. The standard for review is whether any category one restriction is wholly arbitrary, in violation of public policy or an individual's constitutional rights.”
Establishes the legal framework for reviewing category one restrictions found in condominium declarations
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Join FLexlaw to unlock all legal intelligenceThe condominium declaration contained a restriction prohibiting apartment owners from keeping domestic pets without prior written permission from the …
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LETTS, Judge.
The trial court found that a restriction in a condominium declaration against pets was a “ ‘class two’ restriction as defined in the case of Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. 4th DCA 1981).” Accordingly, it directed a verdict in favor of the unit owner and against the condominium association. We reverse.
The restriction in question provided that “[a]n apartment owner shall not keep any domestic pets in his apartment without prior written permission from the Board.” It was set forth in the declaration, which made it a category one restriction under Hidden Harbour. Such a restriction is considered a “covenant running with the land” and is clothed with a strong presumption of validity. The standard for review is whether any category one restriction is wholly arbitrary, in violation of public policy or an individual’s constitutional rights.
On the other hand, where the use restriction is not set forth in the declaration, but is adopted as a rule by the board of directors, it is considered a category two restriction and the standard of review is quite different. In this latter category, the standard for review is whether the rule is reasonably related to the promotion of the health, happiness and peace of mind of all the unit owners. Hidden Harbour; Eastpointe Property Owners’ Association, Inc. v. Cohen, 505 So. 2d 518 (Fla. 4th DCA 1987).
We believe the trial court’s characterization of the restriction here was improper. Since it was found in the declaration, it is a category one restriction. Under Hidden Harbour, this court need only decide whether the restriction was arbitrary and capricious or in violation of public policy. Prior decisions have upheld restrictions against pets and we see no reason to disagree with them. Wilshire Condominium Association, Inc. v. Kohlbrand, 368 So. 2d 629 (Fla. 4th DCA 1979); see Chateau Village North Condominium Association v. Jordan, 643 P. 2d 791 (Colo.App.1982).
Because the restriction is a valid category one restriction, the trial court mischarac-terized it and applied the wrong standard. The restriction requires prior written permission. No such permission was given before this dog came on the premises. As a result, there was a failure to comply on the part of the unit owner. The trial court, therefore, erred in granting a directed verdict.
In view of this holding, the trial court also erred in awarding attorney’s fees to the unit owner and we reverse that award.
REVERSED AND REMANDED FOR RETRIAL.
GLICKSTEIN, C.J., and HERSEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hidden Harbour Ests., Inc. v. Basso, 393 So. 2d 637 (Fla. 4th DCA 1981)
- Eastpointe Prop. Owners' Ass'n, Inc. v. Cohen, 505 So. 2d 518 (Fla. 4th DCA 1987)
- Wilshire Condo. Ass'n, Inc. v. Lize Kohlbrand, 368 So. 2d 629 (Fla. 4th DCA 1979)