By Eric Glazer, Esq.

Published January 28, 2013

     Last week's blog about discrimination hit a nerve with many of our readers. Suffice to say that many of you believe it still exists in regards to color and religion. Does it also exist in regards to sexual preference as well?  I say it does and here's how. 

  
     As an aside, I can tell you that I recently settled a case involving an association in West Palm Beach that in my humble opinion picked a fight with a unit owner solely because of the fact that he is gay. I actually had a Board member on video calling my client mentally ill, while standing over my client who was seated in a chair in a crowded board meeting. After suing the association and the Board members individually, the case settled. One can only hope that the Board members learned a lesson. But…..it's more likely that their prejudice toward gays is even greater than it was when they thought they can kick him around and berate him in public without any repercussion. 

 
     That type of prejudice is easy to prove. It's loud, obnoxious and in your face. There's a much more subtle way that associations sometimes seek to keep same-sex couples out of the community and it involves the situation where your governing documents only allow one "family" to occupy a unit at one time. 
  
     There is certainly an on-going debate as to what type of relationships will be classified as "familial" relationships by each state. As we are all aware, some states recognize same sex marriages and some do not. Suppose however that the governing documents only allow the units to be used by the owners and members of their "immediate family" or require the unit to be occupied solely "as a single family residence." As we know, Florida has yet to recognize same sex marriages. Associations have routinely filed suits seeking to enforce these provisions of the governing documents in a manner that would restrict occupancy to the more traditional definitions of "family" but have often times been unsuccessful. 
 
     For example, there is a Florida Arbitration case in 199 that defines "family" with greater flexibility and states that two males living together does not violate the provisions of the declaration limiting use as a "single family residence." The arbitrator held that since they were living together and sharing expenses, that alone made them a family. 

  
     So despite the fact that our state has not yet recognized same sex marriages and may never will, that still does not allow a Board to prohibit occupancy based upon the fact that the unit will be occupied by more than one family. Has anyone else ever dealt with this issue in their association? How was it resolved? Are boards more open minded that perhaps at one time in the past? Let us know what you think.