The Rule in Shelley's Cases

[Michael MASINTER]

On Tue, 22 Apr 1997, Michael McConnell wrote:

> Michael Masinter writes:
>
> > I would be more convinced by Rick and Mike if were it not for the
> > universal willingness to enforce restrictive covenants which forbid
> > occupancy by children (even your own), and which foreclose from the market
> > an even greater number of users.  At least applied to children of the
> > prospective purchaser, such covenants quite deliberately burden familial
> > association, requiring parents to choose between their home and their
> > child.
>
> I have never heard of a restraint on alienation of fee
> simple property that would forbid occupancy by children.
> -- Michael McConnell (U of Utah)
>

        Fee simple subdivisions burdened by restrictive covenants, or
declarations of restrictions as they are sometimes called, are all too
common in Florida, Arizona, and increasingly common in other states.
Widespread discrimination against families with children led to the
familial status provisions of the Fair Housing Amendments Act of 1988, 42
U.S.C. 3601 et seq.  The 1988 act, strongly supported by Claude Pepper and
the AARP, contained a narrow exemption from the prohibition against
familial status discrimination for what the Act described as Housing for
Older Persons, 42 U.S.C. 3607 (b)(2).  However, the relative powerlessness
of families vis a vis seniors and the ascension of the Republican majority
led congress recently to broaden the exemption for housing for older
persons.

        For a sample of litigation under the Fair Housing Act involving
the application of no kids restrictive covenants in fee simple
subdivisions, see Massaro v. Mainlands Section One and Two Civic Ass'n,
Inc. 3 F.3d 1472 (11th Cir.  1993).

        Common law challenges to these restrictions have failed absent
evidence that they are selectively enforced; Shelley has not been an
obstacle.  See, e.g., White Egret Condominium Ass'n, Inc. v. Franklin, 379
So.2d 346 (Fla. 1979), applied to fee simple subdivisions in Rocek v.
Markowitz, 492 So.2d 460 (Fla. App. 1986); Riley v. Stoves, 22 Ariz. App.
223, 526 P.2d 747 (!974); Schmidt v. Superior Court, 48 Cal. 3d 370, 769
P.2d 932, 256 Cal. Rptr. 750 (1989).

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at law.acast.nova.edu