Introduction to Covenant Enforcement Disputes (Community Association Quarterly)

July 22, 2013

By purchasing property in a community governed by a homeowners’ or condominium association, owners agree to comply with the association’s governing documents, rules, and regulations. Chapter 720 and the Condominium Act provide that each member of a Florida community association, their tenants, guests, and invitees, must comply with the governing documents and the rules of the community. This is not a one-way street, however; the association is also bound to comply with its governing documents and rules.1 The governing documents are contracts between the association and the property owners, “circumscribing the extent and limits of the enjoyment and use of real property.”2

Restrictions found in a declaration are presumptively valid. Each owner who purchases his or her property in a community association does so with notice that the property is subject to the restrictions found in the declaration recorded among the public records. The owner is deemed to know about the restrictions and to have willingly accepted them.3 Such restrictions have attributes of covenants running with the land and will only be invalidated if shown to be “wholly arbitrary in their application,” in violation of public policy, or repugnant to a fundamental constitutional right.4

The association’s governing documents typically set forth prohibited uses, architectural controls, and the association’s assessment rights. Individuals give up the freedom to use their property as they wish in order to promote the health, happiness, and welfare of the majority of the owners in the community. This is inherent in the concept of community association living, and is necessary for owners living in close proximity and using shared facilities.

Court will strictly enforce the restrictions of an association’s declaration. It is treated as the association’s private constitution. Strict enforcement of the declaration of covenants “protects the members’ reliance interests in a document which they have knowingly accepted.” In addition, it helps further the public policy in favor of establishing and protecting the stability of community types, providing a real choice among diverse living arrangements.5

(Endnotes)

1 Fla. Stat. § 720.305 (1) (2012); Fla. Stat. § 718.303 (1) (2012).

2 Woodside Village Condo. Ass’n v. Jahren, 806 So. 2d 452, 456 (Fla. 2002) (quoting Pepe v. Whispering Sands Condo. Ass’n, 351 So. 2d 755, 757 (Fla. 2nd 1977)).

3 Hidden Harbour Estates v. Basso, 393 So. 2d 637, 639 (Fla. 4th DCA 1981).

4 Hidden Harbour Estates v. Basso, 393 So. 2d 637, 640 (Fla. 4th DCA 1981); Pines of Boca Barwood Condo. Ass’n v. Cavouti, 605 So. 2d 984, 985 (Fla. 4th DCA 1992).

5 Aquarian Foundation v. Sholom House, 448 So. 2d 1166, 1168 (Fla. 3d DCA1984).

 


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