Wednesday, September 4, 2013

HOA Bylaws not Enforceable, Unreasonable Restraint on Alienation

Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055.

In the case of in re George Walker, 07-14794-BKC-LMI, 4/17/08, the Bankruptcy Court dealt with a motion to sell real property free and clear of HOA approval fee and process. Nothing in declaration of covenants conditions sale on approval. HOA argued that absence of a restriction legitimizes the bylaw which requires. Statute allowed to include in covenants.

The Court held that the bylaws were a restraint on aliention. Absolute restrains are unenforceable and against public policy. Reasonable restraints are enforceable and Florida statutes authorizes limited restrictions. The Court held that the involved bylaw restraint was  unreasonble.