One of the most challenging aspects of effectively managing a condominium or homeowners association is dealing with board membership turnover and inconsistency in rule enforcement as a result. When members decide to run, they often do so because they feel the current leadership is not doing a good job, including rule enforcement. However, due to a board’s failure to act, a newlyelected board attempting to right the ship by enforcing the association’s bylaws may find itself having to respond to selective enforcement defenses, and this creates a problem. How can boards avoid the selective enforcement defense when enforcing HOA rules and regulations?
Under Florida law, an association attempting to enforce a covenant or restriction against one homeowner, while allowing another homeowner to violate the same restriction without consequences, constitutes selective enforcement—a common problem for association boards. Over the years, the selective enforcement defense has been successfully used by homeowners in a variety of situations. For example, one association was prevented from enforcing a “no pets” restrictive covenant against a homeowner who owned a dog because the association had failed to enforce that same pet restriction against cat owners. Similarly, another association was prevented from forcing a homeowner to remove terrace railings that did not conform with the association’s bylaws because the association had previously allowed other homeowners to install similar non-conforming terrace railings.
How can an association begin enforcing a restriction that previous board members failed to carry out? One way is for the association to provide written notice to all members informing them that on a certain date the association will begin enforcing the restriction. By this action, the association puts its members on notice and moving forward the association consistently and uniformly enforces that restriction.
If the restriction involves permanent or semipermanent matters, such as balcony enclosures or pet ownership, then prior violators may need to be grandfathered in as the selective enforcement defense would still apply to them. However, if proper notice is provided, the association may enforce the restriction against future violators with less exposure to the selective enforcement defense. In contrast, if the restriction involves temporary matters, such as parking violations or amenity use, then the association may begin enforcing that restriction uniformly once proper notice is given.
The selective enforcement defense can cause problems for newly elected boards attempting to improve the community by enforcing the association’s previously overlooked rules and restrictions. However, the defense is not without limitation. If your association is concerned as to whether it is interpreting or enforcing its rules and regulations properly, you should reach out to your association attorney and consult with your community manager.
HOAresources.com explores questions and comments from community association members living in condominiums, homeowners associations, and housing cooperatives. We then assemble trusted experts to provide practical solutions to your most commonly asked, timely questions. We never use real names, but we always tackle real issues. Have a question or comment about your community association? Submit here for consideration:
Join CAI’s online community for access to the industry’s most in-demand community association resources.
Thousands of your peers are sharing advice.