White Egret Condominium, Inc. v. Franklin

• Decision Date: 13 December 1979
• Docket Number: No. 54519,54519
• Citation: 379 So.2d 346
• Parties: WHITE EGRET CONDOMINIUM, INC., Appellant, Petitioner, v. Marvin FRANKLIN et al., Appellees, Respondents.
• Court: Florida Supreme Court

Page 346

379 So.2d 346

WHITE EGRET CONDOMINIUM, INC., Appellant, Petitioner, v. Marvin FRANKLIN et al., Appellees, Respondents.

No. 54519.

Supreme Court of Florida.

Dec. 13, 1979.

Rehearing Denied Feb. 19, 1980.

Welcom H. Watson, Jr., and Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for appellant, petitioner.

James G. Kincaid, Fort Lauderdale, for appellees, respondents.

Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for Leisure Technology of Florida, Inc., amicus curiae.

Ralph H. Haben, Jr., Palmetto, for Florida Apartment Ass'n, amicus curiae.

Mark B. Schorr of Becker, Poliakoff & Streitfeld, Fort Lauderdale, for amicus curiae.

OVERTON, Justice.

This case is before this Court on direct appeal and on petition for writ of certiorari from the decision of the Fourth District Court of Appeal reported at 358 So.2d 1084 (Fla. 4th DCA 1978). The district court construed provisions of the United States Constitution in determining the constitutionality of an express covenant in a condominium agreement which prohibited children under the age of twelve from residing in the condominium premises. In addition, the decision of the district court fails to harmonize with portions of Coquina Club, Inc. v. Mantz, 342 So.2d 112 (Fla. 2d DCA 1977), and Hidden Harbor Estates, Inc. v Norman, 309 So.2d 180 (Fla. 4th DCA 1975). We have jurisdiction. ¹

The principal issue is whether a condominium agreement containing a restriction against residency by children under the age of twelve violates a condominium purchaser's constitutional rights to marriage, procreation, and association, and his right to equal protection of the laws. We find such a restriction is not constitutionally prohibited unless unreasonably or arbitrarily applied. We disagree with the district court's holding that the restriction was unreasonable "per se" and unconstitutional. We do agree, however, that the condominium restriction in the instant case was arbitrarily and selectively applied, and therefore we approve the result.

The recency of the condominium concept, its dependency upon certain use and occupancy restrictions and rules, and the substantial development of retirement communities in this state necessitate a full discussion of this issue.

Two brothers, Marvin Franklin and Norman Franklin, sought to acquire a condominium apartment as a joint vacation home for their respective families when they visited Florida. Although they intended to have dual ownership of this condominium, only one brother's family at a time would be using the apartment. Both brothers filed application for ownership, but only Marvin's application had been approved at the time of the closing. The record reflects that at the closing Norman Franklin's application could not be found. The apartment was conveyed to Marvin Franklin who then transferred one-half ownership to Norman. Ten months after the conveyance, White Egret Condominium, Inc., the condominium association, sought to set aside the transfer of the ownership interest from Marvin to Norman on the grounds that: (1) the defendant, Norman Franklin, had minor children in violation of the restriction which did now allow any children under twelve years of age to reside on the premises, and (2) permitting two brothers and their respective families to occupy and own the premises violated the restriction which did not permit the use of the apartment for any purpose other than as a "single family residence."

The condominium agreement did not define the phrase "single family residence." The agreement did provide that membership could be held in more than one owner's name and that an apartment could be transferred to a member of the "immediate family." In addition, the condominium association conceded that where other requirements and restrictions were satisfied, the owner did not need the association's approval to convey a fee simple interest in the apartment to a brother. The record further reveals that six children under the age of twelve were residents of White Egret Condominium.

In entering its final judgment, the trial court directed Norman to reconvey title of his one-half ownership interest to his brother, Marvin, because said conveyance from one brother to another brother was "void and contrary to the declaration of condominium and other documents related thereto which limit ownership in condominium apartments in White Egret Condominium to a single family." This was the sole ground for the trial court's judgment. The final judgment was not based on the fact that Norman had minor children under the age of twelve, contrary to the condominium declaration.

The district court reversed the trial court's judgment, holding: (1) that the restriction against children under the age of twelve was an unconstitutional violation of the rights to marriage, procreation, and association, and of the right to equal protection of the laws; (2) that the restriction was unreasonable because the condominium association selectively and arbitrarily enforced its application; and (3) that the restriction against the use of the apartment for purposes other than as a single family residence was not violated because the two brothers and their families alternated their stays in the apartment.

Constitutionality of Age Restrictions or Limitations

In holding that the restriction violated an owner's constitutional rights, the district court primarily relied upon three United States Supreme Court decisions: (1) Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (holding unconstitutional a statute prohibiting a white person from marrying anyone but a white person); (2) Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (holding unconstitutional a statute prohibiting use and distribution of contraceptives); and (3) Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (holding unconstitutional a statute requiring sterilization of habitual criminals). In our view, the district court's reliance on these cases was misplaced and not a proper interpretation of them.

The limitation on use of property by requiring single dwelling units and single family use has received constitutional support. In Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), the United States Supreme Court considered the constitutionality of a zoning ordinance which restricted land use to one family dwellings. Family was defined to mean any number of persons related by blood, adoption, or marriage, or not more than two unrelated persons living as a single housekeeping unit. The majority opinion held that this restriction violated no fundamental right, such as the right of association or privacy. The court found the restriction reasonable and rationally related to a permissible state objective, and therefore held it did not violate equal protection. Referring to this ordinance having an appropriate purpose, the court stated:

A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one within Berman v. Parker, (348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27) Supra. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.

Id. at 9, 94 S.Ct. at 1541.

On the other hand, there have been cases holding that property and family limitations in zoning ordinances violate constitutional rights. In Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), Mrs. Moore lived in her home with her son and two grandsons who were cousins rather than brothers. A housing ordinance selected categories of relatives who may live together and others who may not, making failure to comply a criminal penalty. Mrs. Moore received a notice of violation from the city stating that one grandson was "an illegal occupant" and directing her to comply with the ordinance. When she failed to remove her grandson from her home, the city filed a criminal charge. A motion to dismiss was denied, and Mrs. Moore was convicted and sentenced to five days in jail and a $25 fine. The United States Supreme Court held that the ordinance could not be justified as serving the city's interests of preventing overcrowding and minimizing traffic and parking congestion. The court further held that the substantive due process right to live together as a family was not confined to the nuclear family, since the constitution's protection of the sanctity of the family was deeply rooted in the nation's history and tradition and since such tradition was not limited to respect for the bonds uniting the members of the nuclear family but extended as well to the sharing of their household with uncles, aunts, cousins, and especially grandparents. A concurring opinion by Justice Stevens, whose vote was necessary for a decision, stated: "The city has failed to totally explain the need for a rule which would allow a homeowner to have two grandchildren live with her if they are brothers, but not if they are cousins." In Molino v. Mayor and Council of Glassboro, 116 N.J.Super. 195, 281 A.2d 401 (1971), a zoning ordinance had the effect of keeping children out of the city for the admitted purpose of avoiding taxes and more schools. The court held the ordinance violative of the equal protection clause. A review of the facts in both Moore and Molino clearly establishes an unreasonable and arbitrary application of the governmental police power.

In the instant case, the restriction is not a zoning ordinance adopted under the police power but rather a mutual agreement entered into by all condominium apartment owners of the complex. With this type of land use restriction, an individual can choose at the time of...