Preston Tower Condominium Ass'n v. S.B. Realty, Inc.

• Decision Date: 09 January 1985
• Docket Number: No. 05-83-01243-CV,05-83-01243-CV
• Citation: 685 S.W.2d 98
• Parties: PRESTON TOWER CONDOMINIUM ASSOCIATION, Appellant, v. S.B. REALTY, INC., Walter F. Schroeder, Gary D. Baumgart and Jay Kleinneiur, III, and Wife Marjorie, Appellees.
• Court: Texas Court of Appeals

Page 98

685 S.W.2d 98

PRESTON TOWER CONDOMINIUM ASSOCIATION, Appellant, v. S.B. REALTY, INC., Walter F. Schroeder, Gary D. Baumgart and Jay Kleinneiur, III, and Wife Marjorie, Appellees.

No. 05-83-01243-CV.

Court of Appeals of Texas,

Dallas.

Jan. 9, 1985.

P. Michael Jung, Randal Mathis, Strasburger & Price, Dallas, for appellant.

Ira E. Tobolowsky, Carol M. Shosid, Dallas, for S.B. Realty, Inc., Walter F. Schroeder and Gary D. Baumgart.

Joe Chumlea, Dallas, for Jay Kleinneiur, III and wife Marjorie.

Before GUITTARD, C.J., and STEPHENS and STEWART ¹, JJ.

PER CURIAM.

Appellant, Preston Tower Condominium Association, appeals a summary judgment granted to appellees, S.B. Realty, Gary D. Baumgart, Walter F. Schroeder, and Mr. and Mrs. Jay Kleinneiur, III. Preston Tower first contends that the trial court erred in granting the appellees' motion for summary judgment based on the unconstitutionality of an age restriction clause and second that the trial court erred in overruling Preston Tower's motion for summary judgment because it is not barred from enforcing the restriction by waiver, estoppel, or laches. Point of error number one is sustained and point of error number two is overruled. We reverse the judgment of the trial court and remand the cause for trial on the merits.

On April 15, 1981, appellees Mr. & Mrs. Jay Kleinneiur, III, parents of a daughter younger than sixteen years of age, leased a unit in the Preston Tower Condominiums owned by appellees S.B. Realty, Walter Schroeder, and Gary Baumgart. Section 7(a), article XI of Preston Tower's bylaws prohibited the permanent residency of any person under age sixteen in any unit in the complex. Section 7(a) also provided certain exceptions to the age restriction and defined the term "permanent resident." The lease form provided that the unit to be leased would be utilized as a single family residence "by persons over the age of sixteen"; however, the phrase "persons over the age of sixteen" was struck from the Kleinneiurs' lease.

When Preston Tower learned of the lease, the Kleinneiurs were notified by a carbon copy of a letter addressed to Schroeder at S.B. Realty that persons under age sixteen were not permitted to live at Preston Tower Condominiums and that the lease signed April 15, 1981, with the age restriction excised was unacceptable. On June 3, 1981, on behalf of the Kleinneiurs, S.B. Realty requested a special exception to the age restriction. The board of directors of Preston Tower denied this request. Preston Tower again informed S.B. Realty and the Kleinneiurs that it intended to enforce the restriction and that legal action would be taken if the Kleinneiurs did not comply with the age restriction.

The Kleinneiurs failed to comply with the restriction, and Preston Tower filed suit on January 12, 1982, seeking a permanent injunction enjoining the Kleinneiurs from violating the age restriction contained in its bylaws. The Kleinneiurs filed their motion for summary judgment on December 7, 1982, alleging that (1) the enforcement of the age restriction contained in Preston Tower's bylaws would be in violation of their federal constitutional rights under the fourteenth amendment, and (2) the bylaw at issue was ambiguous and unenforceable. Preston Tower filed its response and its own motion for summary judgment on January 4, 1983. S.B. Realty, Schroeder, and Baumgart filed their first amended motion for summary judgment on January 5, 1983. The trial court overruled Preston Tower's motion for summary judgment, granted the appellees' motions on the ground of the unconstitutionality of the age restriction, but denied the motions in all other respects.

By its first point of error, Preston Tower contends that the trial court erred in granting the appellees' (hereinafter referred to collectively as the Kleinneiurs) motions for summary judgment because of the unconstitutionality of the age restriction contained in section 7(a), article XI of Preston Tower's bylaws. We agree.

Neither Preston Tower nor the Kleinneiurs have cited Texas authority to support their contentions on the issue of age restrictions in condominium association bylaws, and we have found none on point. As there is very little Texas law on this subject, we turn to our sister states for guidance in this matter.

The Kleinneiurs do not dispute the general constitutionality of condominium association bylaws which place restrictions on occupancy by children. Nor do they dispute that age restrictions can be used to accomplish the lawful purpose of providing appropriate housing for differing age groups. The Kleinneiurs contend, however, that, because of the exceptions in it, the instant age restriction does not prevent children from permanently living at Preston Tower Condominiums; it only prevents children from moving into the condominiums or from continuing to reside there if they are born within the first seven months of their parents' ownership or occupancy. In other words, it is the Kleinneiurs' contention that because there are express exceptions to an otherwise valid restriction, the restriction is inherently unreasonable and bears no relationship to any legitimate objective and, further, that it could only be applied in a discriminatory and arbitrary fashion.

Courts which have examined the constitutionality of age restrictions have held that such a provision is not unconstitutional unless it is unreasonable or unless it is arbitrarily applied. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979); Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747 (1974). In White Egret the Florida Supreme Court wrote:

The law is now clear that a restriction on individual rights on the basis of age need not pass the "strict scrutiny" test, and therefore age is not a suspect classification. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). We do recognize, however, that these age restrictions cannot be used to unreasonably or arbitrarily restrict certain classes of individuals from obtaining desirable housing. Whenever an age restriction is attacked on due process or equal protection grounds, we find the test is: (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.

379 So.2d at 351.

The Kleinneiurs agree that this is the standard to be used. However, they argue that as applied to them, the age restriction at issue is discriminatory, arbitrary, oppressive, and bears no rational relation to a lawful objective. The Kleinneiurs also cite White Egret as authority for their position because in that case the court held that although the bylaw prohibiting residency of children under the age of twelve was per se lawful, it was being applied in a discriminatory fashion through selective enforcement, based on the evidence that six children under twelve resided there.

Preston Tower argues that the subject bylaw was promulgated with two goals in mind. The first of these goals was to create a child-free environment, and the second goal was to avoid unusually great hardship in cases where application of the general rule would produce that result. Preston Tower contends that, because the exceptions contained in the age restriction are calculated to specifically avoid oppressive results, the constitutional test set out in White Egret has been met.

The first portion of section 7(a), article XI of Preston Tower's bylaws prohibits occupancy by persons under age sixteen. The Kleinneiurs do not contest this section of the restriction; and as stated above, age restrictions in condominium documents are not unconstitutional per se. Age limitations or restrictions are reasonable means to accomplish the lawful purpose of providing appropriate facilities for the differing housing needs and desires of varying age groups. White Egret, 379 So.2d at 351. Thus, we hold that this portion of the bylaw is valid.

However, the bylaw at issue also provides for two express exceptions to the "no children" policy. The first exception applies to "persons under the age of sixteen ... who were residents of the Project at the time the Declaration [was] filed." Preston Tower asserts that the obvious purpose of this "grandfather" clause was to avoid forcing the existing owners with children to move away when the condominium association was created. Although S.B. Realty, Schroeder and Baumgart do not specifically address this exception, the Kleinneiurs concede its validity.

The second exception concerns "children born of Owners who at the time of such birth had been Owners or residents of the Project in excess of seven ... months." These children were permitted to continue their residency in the project. This exception applies only to children born after the first seven months of their parent's ownership or occupancy. Preston Tower urges that the purpose of this exception is the avoidance of the hardship of a forced sale or move to existing owners or residents as opposed to nonresident parents and those who know they are parents-to-be who have the option of purchasing or living elsewhere.

The Kleinneiurs, however, question limiting the exception to children of owners and keying the seven-month period to the inception of ownership or residency. This section of the bylaws gives a tenant who gives birth to a child more than seven months after moving into the unit the option of becoming an owner, by purchasing the unit, or moving elsewhere. In addition, those owners who do not reside at Preston Tower condominiums but who purchased their units seven months or more before a child is born, provided that they do not already have a child under sixteen years of age, may continue to reside elsewhere and at any time may move into their Preston Tower unit.

The Kleinneiurs contend that these exceptions are arbitrary and unreasonable and that they defeat the...