Majestic View Condominium Ass'n v. Bolotin, 429 So. 2d 438 

District Court of Appeal of Florida

1983

Chapter

27

Title

Common Interest Communities

Page

539

Topic

Enforcing Covenants

Quick Notes

Bolotin was a condominium owner.  He violated a restrictive covenant that prohibits all animals and pets of any kind, except one dog or cat under twenty-five pounds, owned by a unit owner. When Bolotin refused to comply, despite requests from Majestic for compliance, Majestic sought injunctive relief. Bolotin argued in their counterclaim that appellant arbitrarily enforced the restriction against them.

Requirements to Enforce Covenants

1.     Constructive or actual notice of the existence of the restriction by the defendant prior to enforcement.

2.     A reasonable demand for compliance with the restriction after the breach has occurred.

3.     Compliance with any applicable procedural due process considerations which require notice of the commencement of the litigation and an opportunity to be heard in court.

Court Analyses of Covenant Enforcement

1.     First, appellees admitted that they had actual notice of the subject use restriction prior to the institution of appellant's action.

2.     Second, not only did appellant establish, and appellees admit, that appellant actually notified appellees that their actions constituted a violation of the condominium restrictions, appellant also established that it had a regular procedure for notification of violations.

3.     The appellees received notice of this action, had a reasonable opportunity to be heard by the court adjudicating the matter and were provided with a full trial on the merits.

Book Name

Fundamentals of Modern Property Law: Rabin; Kwall, Kwall.  ISBN:  978-1-59941-053-1.

Issue

o         Whether Majestics properly enforced its covenants on Bolotin?  Yes.

Procedure

Trial

o         The trial court found the pet rule valid and specifically found against appellees on their counterclaim, but nonetheless entered judgment in favor of [Bolotin], and awarded them attorney's fees

Appellant

o         The court reversed and remanded the judgment because appellant condominium association satisfied the procedural due process requirements for enforcement of the restrictive covenant against appellees condominium owners; the trial court erroneously expanded due process requirements to include an adversarial proceeding prior to appellant seeking enforcement of the restrictive covenant.

Facts

Discussion

Reasoning

Rules

Pl - Majestic View Condominium

Df - Bolotin

Majestic Condo Assn Appeals

o         Majestic appeals from an order denying injunctive relief to enforce a provision of the declaration of condominium which controlled the keeping of pets.

Prohibits all except one animal under 25 pounds

o         Prohibits all animals and pets of any kind, except one dog or cat under twenty-five pounds, owned by a unit owner.

Bolotin Has two dogs

o         Appellees acquired a dog which thereafter grew larger than twenty-five pounds, and subsequently acquired another large dog.

Run all over the damn place

o         They permitted these dogs to run at will through the condominium, frightening residents and creating a nuisance.

Majestic gave notice

o         Appellant sent appellees several letters, first requesting and then demanding that appellees comply with the declaration of condominium.

Bolotin Refused to comply

o         Appellees refused to comply.

Majestic filed suit

o          Appellant filed its complaint for injunctive relief.

Bolotin admitted allegations

o         Appellees answered and admitted every factual allegation of the complaint except those relating to adequate remedy at law, irreparable harm, and attorney's fees.

Bolotin Countered - arbitrarily enforced or applied the pet restriction

o         Appellees also filed a counterclaim in which they alleged that appellant arbitrarily enforced or applied the pet restriction against them but not against others.

Trial Court Judgment in Favor of Bolotin

o         The trial court found the pet rule valid and specifically found against appellees on their counterclaim, but nonetheless entered judgment in favor of appellees, and awarded them attorney's fees.

Consolidated Appeals

o         All appellant asserts that the trial court erred when it applied a previously nonexistent constitutional "due process" test to reach the conclusion that appellant acted arbitrarily in the course of its pre-litigation enforcement efforts.

o         Appellant also contends that the trial court erred in awarding attorneys fees to the appellee.

Requirements to Enforce Covenants

1.     Constructive or actual notice of the existence of the restriction by the defendant prior to enforcement.

2.     A reasonable demand for compliance with the restriction after the breach has occurred.

3.     Compliance with any applicable procedural due process considerations which require notice of the commencement of the litigation and an opportunity to be heard in court.

Court Analyses of Covenant Enforcement

4.     First, appellees admitted that they had actual notice of the subject use restriction prior to the institution of appellant's action.

5.     Second, not only did appellant establish, and appellees admit, that appellant actually notified appellees that their actions constituted a violation of the condominium restrictions, appellant also established that it had a regular procedure for notification of violations.

6.     The appellees received notice of this action, had a reasonable opportunity to be heard by the court adjudicating the matter and were provided with a full trial on the merits.

Bolotin Relies (White Egret Condominium and Hidden Harbor Estates)

o         Due process requires that there must be some procedure by which an individual unit owner is

1. Put on notice of the fact that there is a regulation.
2. Given notice of a violation.
3. Given an opportunity to respond to that violation
4. Must be some period of time in which to comply with the dictates of the association.

Court The cases do not complete or even authorize this result.

Egret - prohibited children under the age of twelve

o         White Egret examined a condominium regulation which prohibited children under the age of twelve from residing in the condominium premises.

Does not inherently violate a fundamental right

o         The Court held that a condominium restriction or limitation does not inherently violate a fundamental right and may be enforced if it serves a legitimate purpose and is reasonably applied.

Reasonably related to a lawful objective

o         The Supreme Court held that the age restriction was reasonably related to a lawful objective.

Selectively and arbitrarily applied the reasonable restriction to the defendant

o         Ruled in favor of the offending unit owner because the Association selectively and arbitrarily applied the reasonable restriction to the defendant but not to other unit owners. Here the Court determined

Court In this case (did not selectively enforce covenants)

o         Bolotin was not singled out for prosecution,

o         Nor was special treatment given to other condominium residents with respect to the enforcement of Article XI(c).

Hidden Harbour Estates - Supports Majestics adoption of the restriction

o         It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.

o         Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.

Court Holding

o         Bolotin have failed to cite any cases or statutory requirements which would support the conclusion reached by the trial court.

o         Bolotin received notice of their violation of the condominium restrictions.

o         Bolotin had an ample opportunity to comply with the restrictions but acted in defiance of the restrictions by which they had agreed to be bound.

o         Majestic properly sought to enforce the condominium restrictions through the judicial process to remedy appellees' breach.

o         We find no support for the trial court's expansion of the due process requirements as set forth in the U.S. Const. amend. XIV, 1 and the Fla. Const. art. I 9.

o         Trial court ERRED when it FAILED to ENFORCE the restrictive covenants.

Rules

Requirements to Enforce Covenants

1.     Constructive or actual notice of the existence of the restriction by the defendant prior to enforcement.

2.     A reasonable demand for compliance with the restriction after the breach has occurred.

3.     Compliance with any applicable procedural due process considerations which require notice of the commencement of the litigation and an opportunity to be heard in court.

Class Notes