Florida Condo Attempted To Bar Unmarried Couples From Buying

Written by Posted On Tuesday, 17 September 2013 11:59

Power to the people; power of the press. As a result of massive objections, rallies and adverse press all over the country, a troublesome condominium amendment will no longer be effective.

Can condominium associations ban "living in sin"? At least that's what the headlines called it when it was first reported that a Florida condo has enacted rules prohibiting two unmarried persons from buying units there. MOBut the public backlash was so strong that on August 22nd, a special meeting of the association was held and the objectionable language was deleted.

Since the story first broke, legal experts have been divided as to whether such a restriction is legal. From a condominium perspective, case law throughout the nation makes it clear that owners are bound by the rules and regulations not only as they exist when they first take title but also by any validly enacted amendments made in the future.

The new language in the condo declaration would have read in part as follows: "The sale, lease or transfer of a Condominium Unit may be made only to an individual, to a husband and wife jointly..." According to the document that was recorded among the appropriate land records in Florida, the Declaration was properly amended by the requisite super majority of owners. Thus, condo lawyers have said that the new policy is binding.

Others have questioned whether it violates the Federal Fair Housing Act, which among other things prohibits discrimination against a protected class of people, such as race, religion or national origin. Is an unmarried couple - even if two brothers - such a protected class? The general consensus is that it is not, despite the fact that back in 1988, Congress expanded the act's coverage to prohibit discrimination based on "familial status". However, this has been interpreted to refer to such situations as pregnant women or having a child under age 18 living in an apartment, and not to unmarried couples.

Years ago, a landlord in New York refused to rent an apartment to a woman attorney. She filed a complaint of discrimination claiming she was turned down because she was a woman. The landlord said "I am turning her down because she is an attorney and is a tenant activist and thus I did not want her in my building". The court's decision: attorneys are not a protected class and the lawyer lost her case.

People are asking "clearly this is discrimination against gay and lesbians, which would fall in the class of "sexual orientation". But is it? While the clear inference is that the language is designed to keep "such people" out of the association, that is only an inference. And unless there is a court action challenging the amendment, and during the trial everyone testifies "yes, that was our intention", a court cannot rule on inferences alone. There must be clear facts on which to make a judgement.

Jonathan Levine, a community association attorney in Milwaukee, Wisconsin, told me that "in court and elsewhere, I have long used the trope that communities have the right to define and organize themselves. For example, I have argued "no pet restrictions to judges with dogs, reminding them that the issue is what the community wants, not what you or I want. But I cannot remember ever using this argument to promote status discrimination."

Nonetheless, sexual orientation and marital status are not protected classes under Federal law.

If it is not a Federal violation, does that mean it is still legal? That depends on local state, county or even city law. According to my research, Venice recently enacted domestic registry laws which give long term unmarried couples greater legal rights, but they relate to health care issues and not housing.

California, for example, makes it unlawful for any owner of a housing accommodation to discriminate against any person because of the marital status of that person. In a 1996 case decided by the California Supreme Court, a landlord argued that his refusal to rent was based on his assumptions about their sexual conduct (which was then not a protected class) rather than their marital status. The court categorically rejected that, stating "a landlord cannot reasonably claim that he does not rent or show property to cohabiting couples based on their conduct (living together outside of marriage) and not their marital status when their marital status (unmarried) is what makes their conduct immoral in his opinion."

Maryland's Fair Housing Act specifically includes "marital status" as protected from discrimination. And in the District of Columbia, the Human Rights Act provides the same protection. To my knowledge, there is no such provision in Virginia.

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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.


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