Are your Declaration’s lease and sale approval provisions enforceable?

Clinton Morrell

Clinton Morrell

Two of the fundamental purposes of a community association are to provide an enjoyable place for its members to live and to protect the value of its members’ properties. In furtherance of these goals, many community associations’ declarations include provisions limiting or requiring pre-approval from the association before a member may lease or sell his unit, so that the prospective purchasers or tenants can be screened to ensure compatibility with the community. While these provisions are generally “recognized as a valid means of insuring the association’s ability to control the composition of the [community] as a whole,” Aquarium Foundation, Inc. v. Sholom House, Inc., 448 So.2d 1166, 1167 (Fla. 3d DCA), in some cases Florida courts have refused to enforce them as an “unreasonable restraint on alienation.” Continue reading

Is your association selectively enforcing its deed restrictions?

Kathleen Reres

Kathleen Reres

When a community association takes legal action to force an owner to comply with deed restrictions, the owner’s first defense is almost always “selective enforcement”. This defense essentially alleges that the association is not treating its members fairly and equally. “Why can I have only one dog” the owner may ask “when the president of the association has two?” If the association has chosen not to enforce a particular restriction against some owners, it may be estopped from enforcing the same provision against other owners who have made similar alterations or violated the deed restrictions in similar ways. Continue reading