Covered Bridge Condominium Ass'n, Inc. v. Chambliss

• Citation: 705 S.W.2d 211
• Decision Date: 26 December 1985
• Docket Number: No. B14-85-206CV,B14-85-206CV
• Parties: COVERED BRIDGE CONDOMINIUM ASSOCIATION, INC., Appellant, v. Thelda L. Craven CHAMBLISS and Edmond B. Chambliss, Appellees. (14th Dist.)
• Court: Court of Appeals of Texas

Page 211

705 S.W.2d 211

COVERED BRIDGE CONDOMINIUM ASSOCIATION, INC., Appellant, v. Thelda L. Craven CHAMBLISS and Edmond B. Chambliss, Appellees.

No. B14-85-206CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 26, 1985.

Rehearing Denied Jan. 30, 1986.

Edward L. Noah, Houston, for appellant.

Paul J. McConnell, III, DeLange, Hudspeth, Pitman & Katz, Houston, for appellees.

Before PAUL PRESSLER, MURPHY and DRAUGHN, JJ.

OPINION

PAUL PRESSLER, Justice.

Appellant sought injunctive relief against appellees for violation of a covenant restricting unit occupancy to those sixteen years of age or older. Appellees counterclaimed seeking a judgment declaring the covenant void and unenforceable. Appellees further requested removal of the Notice of Lien filed by appellant against their property. The trial court declared the covenant unreasonable, unconstitutional and unenforceable, cancelled the Notice of Lien and granted appellees attorney's fees. Although appellant presents several points of error, the pivotal question is whether the covenant is violative of the state or federal constitutions. We hold that the covenant in question is not unconstitutional and reverse and remand.

Texas Courts as well as those of other jurisdictions have held that age-restriction covenants are not unconstitutional unless unreasonable or arbitrarily applied. Preston Tower Condominium Association v. S.B. Realty, Inc., 685 S.W.2d 98 (Tex.App.--Dallas 1985, no writ); White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979); Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747 (1974). Age restrictions are a reasonable means of providing housing which meets the differing needs and desires of varying age groups. Preston Tower, supra at 101. Without such restrictions the legitimate interests of those who desire to live in a facility without children would be denied. Congress has recognized this need by establishing housing programs for the elderly with a minimum occupancy age of sixty-two years. See 12 U.S.C. § 1701(q)(4) (1980); 42 U.S.C. § 3001 et seq. (1973); 42 U.S.C. § 1485(d)(3) (1978).

Appellees contend that their position is supported by the rationale of Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). There the United States Supreme Court held a city ordinance that restricted the cohabitation of certain family members unconstitutional because the right of family members to live together is a fundamental right any restriction of which requires strict scrutiny under the Equal Protection Clause. The appellees argue that this rationale requires appellant here to show a compelling state interest for a covenant which restricts occupancy by age to be constitutional.

This is inapplicable. A compelling state interest need not be demonstrated here because the restriction is created by a private contract, not by a governmental ordinance or law. Appellee, Thelda Chambliss, prior to her marriage, knowingly signed a deed containing the notice of the age-restriction covenant. She must accept the obligations of this agreement as well as its benefits. See White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 350 (Fla.1979). It would be contrary to basic rights which have long been a cornerstone of the individual freedoms which we enjoy as citizens of the United States to say that one cannot sell or buy his private property subject to reasonable restrictions.

The question then becomes whether the language of the covenant is constitutional as applied. The proper test is set forth in Preston Tower Condominium Association v. S.B. Realty, 685 S.W.2d 98 (Tex.App.--Dallas 1985, no writ) which appropriately adopted the following tests from White Egret Condominium, Inc. v. Franklin, 379 So.2d at 351, to determining the constitutionality of a private covenant concerning age:

(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.

Appellees contend that the trial court properly found the covenant to be unreasonable and discriminatory under this test because the covenant allows children under the age of sixteen to live in the condominiums as long as they are not children of a permanent resident. The covenant in question reads as follows:

"That in order to preserve the character of this Condominium as an adult residential community ..., occupancy of all units shall be restricted as follows:

Permanent residents shall be 30 years of age or older; except the spouse of a permanent resident or an immediate member of the permanent resident's family (other than a child of said permanent resident), may be a permanent resident...