CC&Rs
amendment to qualify for "housing for older persons" |
Opinion filed January 22, 1997
Appeal from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County;
W. Herbert Moriarty, Judge;
L.T. Case No. 94-4248 18.
PER CURIAM.
Appellant, a homeowner's association,
appeals from an adverse summary judgement in favor of appellees, who are
homeowners in the Westwood community. The homeowners filed suit against
the association to enforce the familial status provisions of the Florida
Fair Housing Act, sections 760.20-.37, Florida Statutes. The trial court
agreed with appellees that the association was without the authority to
enact an amendment exempting itself from the provisions of the Fair Housing
Act, and enjoined the association from representing that the community
qualifies as "housing for older persons" and that residents must be 55
years of age or older, and from further violating the Fair Housing Act.
We affirm.
The declaration of restrictions, recorded
in 1972, provided in paragraph six that the use of land in the Westwood
community was restricted to permanent residents sixteen years of age or
older. In 1989, the Legislature amended the Fair Housing Act to prevent
discrimination based on "familial status," thereby nullifying the declaration's
age restriction. See Section(s) 760.22-.29. In response, the Westwood homeowner's
association amended its bylaws in an attempt to fit within the "housing
for older persons" exemption to the familial status provisions of the Fair
Housing Act. However, the Westwood declaration of restrictions provides
in paragraph 15 as follows:
The foregoing covenants, restrictions,
reservations and servitudes shall be considered and construed as covenants,
restrictions, reservations and servitudes running with the land, and the
same shall bind all persons claiming ownership or use of any portion of
said land until the first day of March, 2022.
Although the association's by-laws provide
for amendment of the by-laws, they also specifically state that "[n]o amendment
shall be made which is in conflict with the Declaration of Restrictions."
Unlike the cases relied on by the association,
e.g., Holiday Pines Property Owners Ass'n v. Wetherington, 596 So. 2d 84
(Fla. 4th DCA 1992), Westwood's declaration of restrictions did not reserve
to the association the right to amend the covenants or provide for amendment
of the covenants by a vote of lot owners. Thus, in amending its bylaws,
the association was exercising authority it did not have. See Brookridge
Community Property Owners, Inc. v. Brookridge, Inc., 573 So. 2d 972 (Fla.
5th DCA 1991); Blue Reef Holding Corp. v. Coyne, 645 So. 2d 1053 (Fla.
4th DCA 1994); cf. Rogers v. Windmill Pointe Village Club Ass'n, 967 F.2d
525, 526-27 (11th Cir. 1992).
In addition, the authority relied upon
by the association, Seniors Civil Liberties Ass'n v. Kemp, 965 F.2d 1030
(11th Cir. 1992), and Massaro v. Mainlands Section 1 & 2 Civic Ass'n,
3 F.3d 1472 (11th Cir. 1993), cert. denied, 115 S.Ct. 56 (1994), does not
support the contention that the association should be allowed to amend
its declaration of restrictions to come within the "housing for older persons"
exemption. *fn1 Contrary to the association's argument, it cannot amend
its declaration of restrictions simply because the Fair Housing Act voided
its previous age restriction. As the Eleventh Circuit stated in Massaro,
"[t]he declaration's restrictions on residency by children cannot show
that the community intended its housing to be for older persons because
then any policy against families would suffice for the exemption, swallowing
the rule against such discrimination." Massaro, 3 F.3d at 1479. Therefore,
the trial court properly entered summary final judgement in favor of the
appellees.
Affirmed.
WARNER, KLEIN, JJ., and HAZOURI, FREDERICK
A., Associate Judge, concur.
X 1 Seniors Civil Liberties Ass'n did
not involve amendments to a declaration of restrictions. Massaro is also
distinguishable. In that case, the homeowner's association was raising
its inability to amend an age restriction before a certain date pursuant
to the declaration of restrictions as an explanation for its failure to
meet the requisite burden under the Federal Fair Housing Act to come within
the "housing for older persons" exemption. Massaro, 3 F.3d at 1479- 80.
Thus, Massaro did not address the validity or enforceability of a by-law
enacted prior to the date after which the declaration of restrictions could
be amended.
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