Franklin v. White Egret Condominium, Inc.

• Decision Date: 09 August 1977
• Docket Number: No. 76-1535,76-1535
• Citation: 358 So.2d 1084
• Parties: Marvin FRANKLIN and Norman Franklin, Appellants, v. WHITE EGRET CONDOMINIUM, INC., a non-profit Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 1084

358 So.2d 1084

Marvin FRANKLIN and Norman Franklin, Appellants, v. WHITE EGRET CONDOMINIUM, INC., a non-profit Florida Corporation, Appellee.

No. 76-1535.

District Court of Appeal of Florida,Fourth District.

Aug. 9, 1977.

Rehearing Denied May 31, 1978.

James G. Kincaid, Fort Lauderdale, for appellants.

Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for appellee.

KOVACHEVICH, ELIZABETH A., Associate Judge.

Appellants-defendants appeal a final judgment entered in favor of the appellee-plaintiff-condominium which set aside the transfer by deed of a certain ownership interest from one defendant-brother to the other defendant-brother on the basis that the same was contrary to the rules of the declaration of condominium which prohibited ownership by more than one family, and ordered the reconveyance by defendant, Norman Franklin of all of his interest in an Defendants are out-of-state residents who desired to purchase a condominium apartment; their plans were contingent upon owning it jointly. Defendants decided to purchase a certain unit which was then owned by a Mr. and Mrs. Murray, who had listed the property for sale with a real estate broker, who represented those sellers. A salesman for that broker brought the ultimate purchaser, defendant Marvin Franklin, together with the owners in negotiations which culminated in the signing of a contract for the purchase of said apartment in the name of "Marvin Franklin or nominee".

apartment back to defendant Marvin Franklin. Of the six points raised on appeal, four have merit, and on the same, we reverse.

Defendants testified that they wanted this apartment as a joint venture so that their respective families would have a place to stay when they visited Florida; they maintained that this was the sole motivation for their purchase in the first instance. Both defendants applied for approval of ownership and submitted membership applications to the plaintiff. There is a conflict in the testimony as to whether or not the plaintiff failed to give written notice of rejection of either of the applications to the unit owner; defendants contend that under Article XXII of the Declaration of Condominium, failure to give such written notice within ten (10) days was tantamount to consenting to the defendants' applications. At the closing, defendants' attorney was informed that defendant Norman Franklin's application could not be found. Sale of the apartment was made to defendant Marvin Franklin, whose application had been approved, and who then conveyed half his interest to defendant Norman Franklin.

Plaintiff asserted that defendant Norman Franklin's application had never been accepted because he had a child under age twelve in violation of condominium rules. Despite said rules, defendant Norman Franklin had been informed by the real estate agent for the Murrays that it was permissible for non-Florida residents to have guests under the age of twelve (12) live there, and, defendants were aware of two other non-Florida residents in the condominium with children under twelve (12) years of age. Ten (10) months after the closing, plaintiff brought suit seeking a declaratory judgment that the transfer from defendant Marvin Franklin to himself and his brother vesting an undivided one-half ( 1/2) interest in said apartment in each of them was void. The lower court denied defendants' request for a jury trial and subsequently entered a final judgment, as indicated hereinabove.

This point on appeal questions the holding of title jointly by defendants. Ownership by the two defendant blood brothers was permissible; Article X specifically allows joint ownership of condominium apartments: "Membership may be held in the name of more than one owner . . ." In the entire Article there is no mention of any limits upon the amount of owners or the character of the group that might own the apartment; the word "family" is not even mentioned in the provision. It speaks not to the manner of use but specifically to the number of owners. The court should not now aid the plaintiff in reading a new and unstated restriction into the unqualified language of its own condominium document.

The next point questions what a "single family" is. Defendants contend that they were members of a single family and the use to which they put the condominium apartment was that of a single family residence. Article XXIII prohibits use for any other purpose than as a "single family residence." The word "family" has been used to describe a number of different sets of relationships and there is no consensus as to exactly what a family is. A zoning ordinance in Carroll v. City of Miami Beach, 198 So.2d 643 (Fla. 3rd DCA 1967), defined a family as "one or more persons occupying premises and living as a single housekeeping unit". The most recent federal expression on the same was an opinion filed on May 31, 1977, by the Supreme Court of the United States in Moore v. City of East The confusion surrounding the definition of the term "family" must be taken into account when interpreting the restrictions in the instant case, sub judice. As a restriction on the free use of property the single family rule must be "strictly construed in favor of free and unrestricted use of real property". Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925). "Substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenant." Moore, supra, at 904. A restrictive covenant must be read in the context of the entire document in which it is contained. Moore, supra. When the "single family residence" restriction is read in conjunction with the context of the joint ownership provision, the two sections are inconsistent, and inherently ambiguous. Even if one were to consider that the defendants constitute two separate families, the use to which they put the apartment was that of a single family dwelling; according to the record herein, each of the defendants alternated their stays on the premises.

Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531, wherein a municipal housing ordinance sought to limit occupancy of a dwelling unit to members of a single family, but defined "family" in such a way that the appellant's household did not qualify. In reversing, the majority concluded that the ordinance there deprived the appellant of her liberty in violation of the due process clause of the Fourteenth Amendment; it expressly selected certain categories of relatives who may live together and declared that others may not. The court indicated that the strong constitutional protection of the sanctity of the family established in numerous decisions of the Supreme Court extends to the family choice involved in that case and is not bound within an arbitrary boundary drawn at the limits of the nuclear family, which essentially is a couple and its dependent children. In conclusion, the court said that the history and tradition of this nation compel a larger conception of the family: ". . . the Constitution prevents East Cleveland from standardizing its children and its adults by forcing all to live in certain narrowly defined family patterns." In his concurring opinion, Mr. Justice Stevens finds that the right involved is the right to use one's own property as one sees fit.

Two other points involve the subject of approval, but regarding different conveyances. Article XXII deals with written notice of disapproval to the Murrays, who were then owners of the apartment, and did not require notice to the defendants. The Murrays did not convey to both defendant brothers; they conveyed to defendant Marvin Franklin. From the record on appeal, the Murrays are not parties to this law suit and have made no complaint concerning this procedural matter. Further, the conveyance in dispute, sub judice, is not the conveyance from the Murrays, but rather, is the conveyance from the defendant Marvin Franklin to his brother. Thus, the question is whether or not, under the facts of this case, the conveyance of an undivided one-half interest in the apartment from defendant Marvin Franklin to defendant Norman Franklin required any approval. Article XXII specifically allows transfer of an apartment to a member of the "immediate family"; no approval is needed for such a transfer. Plaintiff concedes that where other requirements and restrictions were satisfied, an owner does not need the approval by the condominium association to convey an outright fee simple interest in the apartment to his brother. Defendant Norman Franklin is a member of the immediate family of Marvin Franklin. Thus, the transfer of part of the interest in the apartment from Marvin Franklin to Marvin Franklin and Norman Franklin was valid.

The final point on appeal that we find has merit relates to a restriction in condominium documents against children under the age of twelve (12) as an unconstitutional restriction and violation of defendant Norman Franklin's rights to marriage, procreation, and association, and violation of his right to equal protection of the laws.

Article XXIII prohibits children under the age of twelve (12) from residing on We find that the trial court erroneously ordered defendant Norman Franklin to transfer his interest in the apartment to defendant Marvin Franklin, and reverse the lower court and remand for the entry of a final judgment in favor of defendants, Marvin Franklin and Norman Franklin.

the condominium premises. This was the reason given by plaintiff for its disapproval of Norman Franklin's membership application. The instant case involves a number of rights which the Supreme Court of the United States has labeled "fundamental": the right to marry, Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1966), and the right to procreate, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and the right to marital privacy, Griswold v. Connecticut, 381 U.S. 479, ...