A condominium association prohibited all pets, except for birds and fish. Tenant kept a dog, and the association filed suit to have the dog removed. Tenant raised the affirmative defense of “selective enforcement” as other occupants had cats. The trial court ruled that cats are “fundamentally different than dogs” in that they are not noisy and don’t defecate outdoors and granted the association a summary judgment.
On appeal, the 4th District Court of Appeals stated that a party challenging the enforcement of an otherwise valid restrictive covenant has the burden to prove defensive matters that preclude enforcement, such as the enforcing authority acted in an unreasonable or arbitrary manner. Id. (citing Killearn Acres Homeowners Ass’n v. Keever, 595 So. 2d 1019, 1021 (Fla. 1st DCA 1992)). Restrictive covenants must be strictly enforced. Although a cat is different than a dog, a cat is also not a bird or a fish. Therefore the trial court was in error to hold that cats were permissible. As the Board was allowing cats, but not dogs, it was deemed to be selectively enforcing the restriction, and the summary judgment was reversed.
Prisco v. Forest Villas Condominium Apartments, Inc., 847 So 2d 1012 (Fla.App. Dist.4 04/30/2003)