BY RICHARD PETROVICH AND JOE LANCOS
Ah, the prodigal son returns…if only. What if a neighbor’s black sheep child remains to torment you and the neighborhood in which you live? Our culture is replete with histrionic examples of parents wishing their children would move out. Many times, neighbors wish the same, especially in planned communities. Ironically, despite all the attention paid to this topic, many declarations fail to contain sufficient language to allow for the lawful removal of a wayward occupant who is related to an owner.
This is so because many declarations contain language allowing family members to reside with unit owners. Such is an admirable human quality when a child wishes to care for an elderly family member or a minor child. Not so admirable, however, is when a jobless thirty-year-old is selling drugs on common areas. Some declarations go as far as to prohibit regulations preventing children from residing in or occupying a unit
Make no mistake, unclear language as it relates to children is extremely problematic as the generic term “children” can include adult children.
“In the case of competing interpretations of the words used in the articles of incorporation at issue here, any ambiguity is to be construed against the Association as the drafter.” Webster v. Ocean Reef Cmty. Ass’n, Inc., 994 So. 2d 367, 370 (Fla. 3d DCA 2008). This is so because Florida courts consider restrictive covenants narrowly and will only allow associations to act when specifically empowered to do so. Accordingly, if a clause in the declaration prohibits restrictions on allowing family members to reside with a unit owner, an enforcement action seeking removal of an unwanted occupant may fail.
Hence, it is essential that board members seek legal counsel to review their current declaration as it relates to the association’s ability to remove unwanted occupants who are related to unit owners based on age or other reasonable criteria. Generally, age is an objective criterial that will withstand scrutiny, so long as it is not selectively enforced. “Age limitations or restrictions are reasonable means to accomplish ‘the lawful purpose of providing appropriate facilities for the differing housing needs and desires of the varying age groups.’” Rocek v. Markowitz, 492 So. 2d 460, 461 (Fla. 5th DCA 1986).
In addition, as in all cases where the association seeks to remove an unwanted occupant, board members must strictly adhere to the policies and procedures provided in their declaration. Consulting an experienced condominium and HOA attorney can help ensure that all prerequisites for removal are compiled with in a lawful and efficient manner.
Richard Petrovich and Joe Lancos are attorneys with Tripp Scott in
Ft. Lauderdale, Fla.