| [1] |
SUPREME COURT OF FLORIDA |
| [2] |
No. 54519 |
| [3] |
1979.FL.48739 ; 379 So. 2d 346 |
| [4] |
December 13, 1979 |
| [5] |
WHITE EGRET CONDOMINIUM, INC., APPELLANT,
PETITIONER,
v.
MARVIN FRANKLIN, ET AL., APPELLEES, RESPONDENTS |
| [6] |
Welcom H. Watson, Jr., and Michael K. Davis of
Watson, Hubert & Davis, Fort Lauderdale, for appellant, petitioner. |
| [7] |
James G. Kincaid, Fort Lauderdale, for appellees,
respondents. |
| [8] |
Gerald W. Pierce of Henderson, Franklin, Starnes
& Holt, Fort Myers, for Leisure Technology of Florida, Inc., amicus
curiae. |
| [9] |
Ralph H. Haben, Jr., Palmetto, for Florida
Apartment Ass'n, amicus curiae. |
| [10] |
Mark B. Schorr of Becker, Poliakoff &
Streitfeld, Fort Lauderdale, for amicus curiae. |
| [11] |
Before Overton, J. England, C.j., Adkins, Boyd and
Sundberg, JJ., Concur |
| [12] |
Author: Overton |
| [13] |
This case is before this Court on direct appeal and
on petition for writ of certiorari from the decision of the Fourth
District Court of Appeal reported at
358 So.2d 1084
(Fla. 4th DCA 1978). The district court construed provisions of the
United States Constitution in determining the constitutionality of an
express covenant in a condominium agreement which prohibited children
under the age of twelve from residing in the condominium premises. In
addition, the decision of the district court fails to harmonize with
portions of Coquina Club, Inc. v. Mantz,
342 So.2d 112
(Fla. 2d DCA 1977), and Hidden Harbour Estates, Inc. v. Norman,
309 So.2d 180
(Fla. 4th DCA 1975). We have jurisdiction.*
X 1 |
| [14] |
The principal issue is whether a condominium
agreement containing a restriction against residency by children under
the age of twelve violates a condominium purchaser's constitutional
rights to marriage, procreation, and association, and his right to equal
protection of the laws. We find such a restriction is not
constitutionally prohibited unless unreasonably or arbitrarily applied.
We disagree with the district court's holding that the restriction was
unreasonable "per se" and unconstitutional. We do agree,
however, that the condominium restriction in the instant case was
arbitrarily and selectively applied, and therefore we approve the
result. |
| [15] |
The recency of the condominium concept, its
dependency upon certain use and occupancy restrictions and rules, and
the substantial development of retirement communities in this state
necessitate a full discussion of this issue. |
| [16] |
Two brothers, Marvin Franklin and Norman Franklin,
sought to acquire a condominium apartment as a joint vacation home for
their respective families when they visited Florida. Although they
intended to have dual ownership of this condominium, only one brother's
family at a time would be using the apartment. Both brothers filed
application for ownership, but only Marvin's application had been
approved at the time of the closing. The record reflects that at the
closing Norman Franklin's application could not be found. The apartment
was conveyed to Marvin Franklin who then transferred one-half ownership
to Norman. Ten months after the conveyance, White Egret Condominium,
Inc., the condominium association, sought to set aside the transfer of
the ownership interest from Marvin to Norman on the grounds that: (1)
the defendant, Norman Franklin, had minor children in violation of the
restriction which did now allow any children under twelve years of age
to reside on the premises, and (2) permitting two brothers and their
respective families to occupy and own the premises violated the
restriction which did not permit the use of the apartment for any
purpose other than as a "single family residence." |
| [17] |
The condominium agreement did not define the phrase
"single family residence." The agreement did provide that
membership could be held in more than one owner's name and that an
apartment could be transferred to a member of the "immediate
family." In addition, the condominium association conceded that
where other requirements and restrictions were satisfied, the owner did
not need the association's approval to convey a fee simple interest in
the apartment to a brother. The record further reveals that six children
under the age of twelve were residents of White Egret Condominium. |
| [18] |
In entering its final judgment, the trial court
directed Norman to reconvey title of his one-half ownership interest to
his brother, Marvin, because said conveyance from one brother to another
brother was "void and contrary to the declaration of condominium
and other documents related thereto which limit ownership in condominium
apartments in White Egret Condominium to a single family." This was
the sole ground for the trial court's judgment. The final judgment was
not based on the fact that Norman had minor children under the age of
twelve, contrary to the condominium declaration. |
| [19] |
The district court reversed the trial court's
judgment, holding: (1) that the restriction against children under the
age of twelve was an unconstitutional violation of the rights to
marriage, procreation, and association, and of the right to equal
protection of the laws; (2) that the restriction was unreasonable
because the condominium association selectively and arbitrarily enforced
its application; and (3) that the restriction against the use of the
apartment for purposes other than as a single family residence was not
violated because the two brothers and their families alternated their
stays in the apartment. |
| [20] |
Constitutionality of Age Restrictions or
Limitations |
| [21] |
In holding that the restriction violated an owner's
constitutional rights, the district court primarily relied upon three
United States Supreme Court decisions: (1) Loving v. Virginia, 388 U.S.
1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) (holding unconstitutional a
statute prohibiting a white person from marrying anyone but a white
person); (2) Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14
L. Ed. 2d 510 (1965) (holding unconstitutional a statute prohibiting use
and distribution of contraceptives); and (3) Skinner v. Oklahoma, 316
U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942) (holding
unconstitutional a statute requiring sterilization of habitual
criminals). In our view, the district court's reliance on these cases
was misplaced and not a proper interpretation of them. |
| [22] |
The limitation on use of property by requiring
single dwelling units and single family use has received constitutional
support. In Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct.
1536, 39 L. Ed. 2d 797 (1974), the United States Supreme Court
considered the constitutionality of a zoning ordinance which restricted
land use to one family dwellings. Family was defined to mean any number
of persons related by blood, adoption, or marriage, or not more than two
unrelated persons living as a single housekeeping unit. The majority
opinion held that this restriction violated no fundamental right, such
as the right of association or privacy. The court found the restriction
reasonable and rationally related to a permissible state objective, and
therefore held it did not violate equal protection. Referring to this
ordinance having an appropriate purpose, the court stated: |
| [23] |
A quiet place where yards are wide, people few, and
motor vehicles restricted are legitimate guidelines in a land-use
project addressed to family needs. This goal is a permissible one within
Berman v. Parker, (348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27) Supra. The
police power is not confined to elimination of filth, stench, and
unhealthy places. It is ample to lay out zones where family values,
youth values, and the blessings of quiet seclusion and clean air make
the area a sanctuary for people. |
| [24] |
Id. at 9, 94 S. Ct. at 1541. |
| [25] |
On the other hand, there have been cases holding
that property and family limitations in zoning ordinances violate
constitutional rights. In Moore v. City of East Cleveland, 431 U.S. 494,
97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977), Mrs. Moore lived in her home
with her son and two grandsons who were cousins rather than brothers. A
housing ordinance selected categories of relatives who may live together
and others who may not, making failure to comply a criminal penalty.
Mrs. Moore received a notice of violation from the city stating that one
grandson was "an illegal occupant" and directing her to comply
with the ordinance. When she failed to remove her grandson from her
home, the city filed a criminal charge. A motion to dismiss was denied,
and Mrs. Moore was convicted and sentenced to five days in jail and a
$25 fine. The United States Supreme Court held that the ordinance could
not be justified as serving the city's interests of preventing
overcrowding and minimizing traffic and parking congestion. The court
further held that the substantive due process right to live together as
a family was not confined to the nuclear family, since the
constitution's protection of the sanctity of the family was deeply
rooted in the nation's history and tradition and since such tradition
was not limited to respect for the bonds uniting the members of the
nuclear family but extended as well to the sharing of their household
with uncles, aunts, cousins, and especially grandparents. A concurring
opinion by Justice Stevens, whose vote was necessary for a decision,
stated: "The city has failed to totally explain the need for a rule
which would allow a homeowner to have two grandchildren live with her if
they are brothers, but not if they are cousins." In Molino v. Mayor
and Council of Glassboro, 116 N.J.Super. 195, 281 A.2d 401 (1971), a
zoning ordinance had the effect of keeping children out of the city for
the admitted purpose of avoiding taxes and more schools. The court held
the ordinance violative of the equal protection clause. A review of the
facts in both Moore and Molino clearly establishes an unreasonable and
arbitrary application of the governmental police power. |
| [26] |
In the instant case, the restriction is not a
zoning ordinance adopted under the police power but rather a mutual
agreement entered into by all condominium apartment owners of the
complex. With this type of land use restriction, an individual can
choose at the time of purchase whether to sign an agreement with these
restrictions or limitations. Reasonable restrictions concerning use,
occupancy, and transfer of condominium units are necessary for the
operation and protection of the owners in the condominium concept. |
| [27] |
In Hidden Harbour Estates, Inc. v. Norman,
309 So.2d 180,
181-82 (Fla. 4th DCA 1975), Judge Downey explained the necessity for
restrictions on condominium living: |
| [28] |
It appears to us 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 in separate, privately owned property. Condominium unit
owners comprise a little democratic sub society of necessity more
restrictive as it pertains to use of condominium property than may be
existent outside the condominium organization. |
| [29] |
In addition, the legislature of this state has
expressly approved the allowance of reasonable restrictions on use and
occupancy. See §
718.112(3),
Fla.Stat. (1977). Therefore, it is our view that a condominium
restriction or limitation does not inherently violate fundamental right
and may be enforced if it serves a legitimate purpose and is reasonably
applied. |
| [30] |
The issue of age restrictions in condominiums and
housing developments is a new legal issue although it has recently been
addressed by courts in other jurisdictions and referred to in two
decisions of our district courts.*X
2 In Hidden Harbor Estates, Inc. v. Norman, the
condominium association adopted a rule prohibiting the use of alcoholic
beverages in certain areas of the common elements. A unit owner sought
to enjoin the enforcement of the rule. The district court held that this
was a reasonable rule, citing examples of other restrictions on
individual rights which are necessary for the condominium concept:
"(N)o sale may be effectuated without approval; no minors may be
permanent residents; no pets are allowed."
309 So.2d at 182.
The limitation on minors being permanent residents was quoted with
apparent approval although it was not an issue in the cause. In Coquina
Club v. Mantz,
342 So.2d 112
(Fla. 2d DCA 1977), the condominium board denied an application for the
purchase of a unit by a family with two children under twelve years of
age. Because of this denial, the unit owner sought to require the
condominium to either purchase the unit or provide a purchaser for the
apartment at his price. The district court noted that the condominium
legislation in this state specifically allowed reasonable restrictions,
and that age restrictions had withstood constitutional attack in other
jurisdictions, citing Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747
(1974). See Annot., 68 A.L.R.3d 1239 (1976). |
| [31] |
In Riley the court upheld a covenant in a deed
restricting occupancy in a mobile home subdivision to persons twenty-one
years or older. The court stated: "The obvious purpose is to create
a quiet, peaceful neighborhood by eliminating noise associated with
children at play or otherwise." Id. at 228, 526 P.2d at 752. The
court noted there were other areas in the mobile home park for families
with children. The court therefore found this restriction reasonably
related to a legitimate purpose and declined to hold that its
enforcement violated the defendant's right to equal protection. |
| [32] |
In Ritchey v. Villa Nueva Condominium Ass'n., 81
Cal.App.3d 688, 146 Cal.Rptr. 695 (Ct.App.1978), the issue before the
court was the validity of a condominium bylaw restricting occupancy of
condominium units to persons eighteen years of age or older. The court
held that age restrictions in condominium documents were not
unreasonable "per se," and that it was a reasonable
restriction upon an owner's right to sell or lease his condominium unit. |
| [33] |
We agree with these courts that age limitations or
restrictions are reasonable means to accomplish the lawful purpose of
providing appropriate facilities for the differing housing needs and
desires of the varying age groups. We reject the view that Moore v. City
of East Cleveland absolutely prohibits this type of limitation. We note
that Congress has established age limitations in recognizing the need
for senior citizen housing by including an age minimum of sixty-two
years for occupancy of certain housing developments. See 12 U.S.C. §
1701, Et seq. (1969); 42 U.S.C. § 3001, Et seq. (1973); 12 U.S.C. §
1701q(d)(4) (Supp.1979) (minimum age); and 42 U.S.C. § 1485(a)(3)
(1978). |
| [34] |
The urbanization of this country requiring
substantial portions of our population to live closer together coupled
with the desire for varying types of family units and recreational
activities have brought about new concepts in living accommodations.
There are residential units designed specifically for young adults, for
families with young children, and for senior citizens. The desires and
demands of each category are different. Young adult units are
predominantly one-bedroom units with extensive recreational facilities
designed for the young, including tennis and racquet ball courts, weight
rooms, saunas, and even disco rooms. The units designed principally for
families are two- to four-bedroom units with recreational facilities
geared for children, including playgrounds and small children's swimming
pools. Senior citizen units are limited to one- and two-bedroom units
designed to provide the quiet atmosphere that most of our senior
citizens desire. These units may provide extra wide doors throughout the
complex to allow sufficient clearance for wheelchairs and walkers and
recreational facilities such as card rooms and shuffleboard courts.
Although tennis courts and playgrounds may be desirable for younger
tenants and owners, such facilities would be a waste of funds and be
largely unused in a development which housed a substantial number of
senior citizens. We cannot ignore the fact that some housing complexes
are specifically designed for certain age groups. In our view, age
restrictions are a reasonable means to identify and categorize the
varying desires of our population. The law is now clear that a
restriction on individual rights on the basis of age need not pass the
"strict scrutiny" test, and therefore age is not a suspect
classification. See Massachusetts Board of Retirement v. Murgia, 427
U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976). We do recognize,
however, that these age restrictions cannot be used to unreasonably or
arbitrarily restrict certain classes of individuals from obtaining
desirable housing. Whenever an age restriction is attacked on due
process or equal protection grounds, we find the test is: (1) whether
the restriction under the particular circumstances of the case is
reasonable, and (2) whether it is discriminatory, arbitrary, or
oppressive in its application. |
| [35] |
The totality of an age or family limitation in its
application as it occurred in Morino v. New Jersey and Moore v. City of
East Cleveland is clearly not present in the instant case. We further
reject the view that Moore mandates that all related relatives must be
allowed to live in whatever single family facilities they desire. Such
an absolute rule would inversely prohibit those who desire to live in a
facility without children from doing so. |
| [36] |
In the instant case the subject premises were
admittedly to be used as a vacation retreat rather than as a family's
primary residential home. Regardless of that fact, however, we find the
restriction against children under the age of twelve reasonably related
to a lawful objective, but under the circumstances of this case the
selective and arbitrary manner of enforcement is another issue. |
| [37] |
Selective and Arbitrary Enforcement |
| [38] |
At the time Marvin Franklin purchased his
condominium apartment, at least six other children under the age of
twelve were living in this condominium complex. Further, the record
reveals that the six children were in two separate households and that
some of the children were substantially under the age of twelve. We
agree with the district court's finding that this constituted unequal
and arbitrary enforcement of the restriction. Although this restriction
was reasonably related to a lawful objective, the appellant is estopped
from selectively enforcing the age restriction. See Fifty-Six Sixty
Collins Avenue Condominium, Inc. v. Dawson,
354 So.2d 432
(Fla. 3d DCA 1978), and Plaza Del Prado Condominium Ass'n., Inc. v.
Richman,
345 So.2d 851
(Fla. 3d DCA 1977). |
| [39] |
Single Family Use of the Condominium |
| [40] |
The condominium agreement prohibited use of the
condominium apartment for any purpose other than as a single family
residence. The agreement, however, failed to define the term
"single family residence" and expressly permitted ownership of
an apartment by more than one individual. The district court found that
when this undefined "single family residence" provision was
read together with the joint ownership provision, the two sections were
inconsistent and inherently ambiguous. As a result, the doubt must be
resolved against the person claiming the right to enforce the covenant.
Moore v. Stevens,
90 Fla. 879,
885,
106 So. 901,
904 (1925). The district court further noted that even assuming the two
brothers and their respective families constitute two separate families,
they used the apartment in a single family manner by alternating their
visits to Florida. Only one brother and his family actually occupied the
apartment at any given time, and this was in fact a single family use.
We agree with these conclusions of the district court. |
| [41] |
In addressing the issue of what constitutes a
"single family," the district court cited Moore v. City of
East Cleveland which held that the right to live together as a family
may not be limited to only a few categories of related individuals by a
housing ordinance with criminal penalties. For the reasons expressed
previously in this opinion, we find Moore not applicable to the instant
case. |
| [42] |
Conclusion |
| [43] |
We conclude that age limitations and restrictions
may be enforced if reasonably related to a lawful objective and not
applied in an arbitrary or discriminatory manner. In the instant case we
find that the premises were in fact used as a single family residence
and the age restriction was selectively and arbitrarily applied.
Consequently, neither the age nor the single family restrictions may in
this circumstance be judicially enforced, and we agree with the result
reached by the district court. |
| [44] |
It is so ordered. |
| [45] |
ENGLAND, C. J., and ADKINS, BOYD and SUNDBERG, JJ.,
concur. |
| |
|
| |
Opinion Footnotes |
| |
|
| [46] |
*X
1 Art. V, § 3(b)(1), (3), Fla.Const. |
| [47] |
*X
2 See generally 7 Stetson
Intramural L.Rev. 193 (Spring 1978). |
|
