Ramon C. Palacio, Esq.
Condominium and homeowners associations must consistently and uniformly enforce their covenants, restrictions, and rules and regulations as set forth in their governing documents. Most boards of directors and management are keenly aware of this. Nevertheless, situations arise where an association may not have been enforcing a particular provision for some time. For example, an association may have not been strictly enforcing a pet restriction found in its declaration of condominium or declaration of covenants and restrictions. Such restriction may have limited the number of dogs, for example, established a weight limit, or not allowed dogs at all, regardless of weight. As another example, perhaps the association has not been enforcing a restriction prohibiting commercial vehicles, or prohibiting leasing of a condominium unit or a single family home without the association’s approval.
Sometime later, however, perhaps because the lack of enforcement has led to undesirable conditions (which the restrictions were arguably intended to prevent in the first place), the association wishes to again begin enforcing that restriction. Can it do so?
First things first
If the association were to simply begin enforcing a previously unenforced restriction without first satisfying the requisite procedural and notice requirements, its actions could be challenged on the basis of waiver (albeit subject to non-waiver provisions in many association governing documents) and selective enforcement, both of which are recognized defenses in circumstances such as these.
An association is said to be “estopped” or precluded from enforcing a given provision in its governing documents when there has been selective enforcement. In other words, an owner may have a viable defense to enforcement action if other owners have been in violation of the same restriction for years and the association has not taken enforcement action against those other owners. Thus, an association could in these circumstances find itself on the losing end of an expensive arbitration or civil court case.
The Supreme Court of Florida ruled on this Issue
In the case of Chattel Shipping and Inv., Inc. v. Brickell Place Condominium Ass'n, Inc., 481 So.2d 29, 10 Fla. L. Weekly 2719 (Fla. App., 1985), the association’s governing documents prohibited enclosing balconies, yet over time, some forty-five owners had done so. Subsequently, a City of Miami official informed the association that zoning ordinances prohibited the enclosing of balconies. The association then informed all owners that although the association would not take action against owners who had already enclosed their balconies, the practice was expressly prohibited by the governing documents and this prohibition would be enforced going forward, meaning no other owners would be allowed to enclose their balconies.
Two years later, an owner did precisely this, enclosing his balcony. After the association’s demands that the owner come into compliance were ignored, the association filed suit seeking an injunction to have the enclosure removed. The owner defended the action on the basis of selective enforcement, arguing that unless all owners were required to remove their balcony enclosures, the association was powerless to require that only he do so. After all, the prohibition had been in the governing documents all along, thus from the owner’s perspective, it should apply to everyone or to no one at all. The court disagreed and held in the association’s favor.
The court determined that when an association adopts and implements a uniform policy that as a practical matter as well as economic reasons will be enforced only prospectively, the policy will not be deemed arbitrary and selective. Consider the practical and economic burden upon the association if it were required to file suit against forty-five owners as a prerequisite to enforcing the prohibition in question. Moreover, as the court stated in Chattel Shipping, the association may be legally estopped from forcing compliance from those particular owners who may have relied on the association’s non-enforcement of the balcony restriction (or perhaps even tacit approval) before undergoing the expense.
The takeaway here is that an association’s covenants, restrictions, rules, and regulations should be enforced consistently and uniformly. Additionally, as a prerequisite to enforcing a previously unenforced rule or restriction (or unenforced for some period of time), or adopting a policy re-interpreting or affecting a covenant, restriction, or rule and regulation, an association may be required to first provide proper notice to the members of the association. Moreover, depending on the circumstances, the change may be enforceable only prospectively.
This discussion is not intended as legal advice but rather solely as a foundation for a discussion with the association’s legal counsel so that the facts and circumstances of a particular situation may be thoroughly discussed and analyzed.