Q: Our board is seeking clarification on the “single family” use restriction stated in our declaration of condominium. The term is not clearly defined in our documents, and we would like guidance on how to interpret this clause when evaluating our potential sales. (J.D., via e-mail)
A: “Single family” use restrictions are common in the governing documents of condominium and homeowners’ associations. They can be contentious and have been the subject of legal challenges, especially when the terms are inadequately defined or applied arbitrarily.
In 1979, the Florida Supreme Court dealt with a case involving an undefined “single family residence” clause in a condominium agreement. The Court examined two U.S. Supreme Court zoning cases to assess the validity of such restrictions. In one case, the U.S. Supreme Court upheld a zoning law that defined “family” to include individuals related by blood, adoption, or marriage, or up to two unrelated people living together. In the other case, a zoning ordinance was invalidated because its definition excluded a grandmother living with her two grandsons, who were first cousins.
The Florida Supreme Court ultimately ruled that reasonable restrictions limiting use to single family occupancy were valid within private agreements among property owners, noting that individuals voluntarily choose to sign such agreements. However, the covenant in question, which limited units to “single family residences,” was found to be ambiguous because it lacked a clear definition and allowed for co-ownership of units. As a result, the Court ruled against the association seeking to enforce the restriction, allowing two brothers to co-own a unit used alternately for vacations. Because only one brother’s family occupied the unit at any given time, it was deemed to meet the “single family” use requirement.
The most common definition I see in condominium and homeowners’ association covenants defines a “family” as one natural person, his or her spouse (some documents recognize “domestic partners”), and his, her, or their parents, grandparents, adult children, custodial minor children (including foster children), grandchildren, or siblings. There is typically a requirement that such persons do and plan to indefinitely and continuously reside together as a single financially and socially interdependent housekeeping unit, with the intention of living within the bonds of family. Most commonly, covenants include not more than two natural persons not meeting the requirements set forth above, who do and plan to indefinitely and continuously reside together as a single financially and socially interdependent housekeeping unit, with the intention of living within the bonds of family.
The intent is that homes cannot be used as “boarding houses” or put to similar uses, while the association is not attempting to “legislate morality” as far as unmarried persons co-habituating or attempting to constrict the concept of a “family.” Further, having a clear definition can assist in seeking to avoid anti-discrimination laws. In addition to having a clear definition of what a “single family” is, the covenants should also contain an affirmative “fair housing statement” which states that the association does not discriminate in the terms and conditions of ownership or residency in the community based on any legally recognized protected class status.
In addition to defining what “family” occupancy entails, the covenants should also contain complementary provisions on how to deal with units or parcels that are owned by artificial entities, such as limited liability companies or corporations, partnerships, and trusts. The most common approach here is to require the entity to designate a “primary occupant” of the property, who would be the person (along with his or her “family”) who is entitled to occupy the home.
Finally, the covenants should also contain clear guidelines on leasing and occupancy by “guests” to avoid problem situations where the intent of the covenants can be circumvented.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.