Community Update

Why Community Associations Should Check Their Zoning and Entitlement History

By: Kathleen O. Berkey, AICP

Zoning laws are enacted by villages, towns, cities, or counties to control the types of uses and the parking ratio, intensity, density, and dimensions of those uses. This is for the purpose of preserving property values, managing growth, preserving the character of a community This facilitates the adequate provision of transportation, and promotes public health and welfare…

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Prisco v. Forest Villas Condominium Apartments, Inc.

847 So.2s 1012 (Fla. 4th DCA 2003)

By: Mark D. Friedman, Esq.

The Board does not have flexibility to waive use restrictions for some owners but not others is at the heart of THIS CASE.

The Forest Villas Condominium Association had a rule that “except fish and/or birds” no pets could be brought into the condominium. Prisco had a dog in her unit. The Board told her to remove it. She claimed selective enforcement because of another owner who had multiple cats in her unit.

The trial court stated, “cats are not the same as dogs, and the condominium allowing a cat on the premises does not equal to disallowing a dog 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 court acknowledged that the restrictions allow only fish and birds and no other animal of any kind, but nevertheless found that “[n]one of them require outside activity and they don’t require to defecate and urinate. As such, this Court finds that cats and dogs are not similarly alike.”

The appellate court reviewing this matter held that “restrictions found within a Declaration are afforded a strong presumption of validity, and a reasonable unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms, and only where intent cannot be ascertained will the covenant not be enforced.” The appellate court found the pet restriction to be clear an unambiguous and the fact that cats and dogs are different makes no difference. The court held that what does matter is that neither a cat nor a dog is a fish or a bird, so both should be prohibited. The appellate court overturned the trial courts ruling and agreed with the Unit owner’s argument that selective enforcement had occurred.

So why does THIS CASE matter? The Association must follow the use restrictions of its governing documents for all unit owners in an evenhanded manner to avoid selective enforcement defense when it seeks to enforce its governing documents. When selective enforcement occurs, the risk is that the arbitration or lawsuit will be lost, and the association will have to pay unit owner’s prevailing party attorneys’ fees and costs.

On the Board: Privacy Protected

By: Jack S. Kallus

Board members must navigate a number of responsibilities including legal issues. As a board member, do you know how to protect your privacy and avoid exposure when faced with a lawsuit?

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Becker Awarded FLCAJ Readers’ Choice Award for Seventh Consecutive Year

We are thrilled to announce that for the seventh consecutive year, Becker has earned a Diamond Level Readers’ Choice Award from the Florida Community Association Journal (FLCAJ). This prestigious award recognizes professional advisers who offer superior service and who have demonstrated a true commitment to the success of their shared ownership community clients. The Diamond level designation is the highest level of recognition.

We are proud of our contributions to the community association industry and are thankful to our readers and to the FLCAJ for this honor.