A condominium association prohibited all pets; except for birds and fish. A tenant in the building owned a dog and the association filed a lawsuit to have the dog removed. The 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 as stated in the covenants that was allowed. Thus, the trial court erred in holding that cats were permissible although dogs were not. The Court found that the Association was selectively enforcing the restriction, and the summary judgment was reversed.