Avoiding the Selective Enforcement Defense When Enforcing Condominium Association Rules and Regulations

One of the most challenging aspects of effectively running and operating a condominium association is the constant turnover in board membership and the inconsistency this creates concerning rules enforcement. Most association board seats are up for reelection at least every two years if not every year. When members decide to run for the board, they often do so because they feel the current board is not properly running the association or enforcing its rules. Yet once a newly elected and motivated board attempts to right the ship and enforce the bylaws and rules and regulations, it finds itself having to respond to selective enforcement defenses due to the prior board’s failure to act. This presents quite the conundrum. Board members have a fiduciary duty to enforce the association’s governing documents but cannot do so effectively. There must be a solution. This Blog post will discuss how a board can avoid the selective enforcement defense when enforcing condominium association rules and regulations.

An association attempting to enforce a covenant or restriction against one unit owner, while allowing another unit owner to violate the same restriction without consequences constitutes selective enforcement under Florida law. See White Egret Condo., Inc. v. Franklin, 379 So.2d 346 (Fla. 1979).   In White Egret Condo, Inc., the association was an age restricted community that did not allow children under the age of twelve. Franklin, who had children under twelve, purchased a unit and the board sought to enforce the age restriction covenant against him. Id. at 348. The problem for the association was that at the time Franklin purchased his unit at least six other children under the age of twelve were living within the condominium complex. The Florida Supreme Court held that “this constituted unequal and arbitrary enforcement of the restriction . . . and the [association] is estopped from selectively enforcing the age restriction.” Id. at 352. The selective enforcement defense has given association boards a fit ever since.

Over the years, the selective enforcement defense has been successfully used by unit owners in a variety of scenarios. For example, one association could not enforce a “no pets” restrictive covenant against a unit owner who owned a dog when the association had failed to enforce that same pet restriction on cat owners.  Prisco v. Forest Villas Condo Apartments, Inc., 847 So.2d 1012 (Fla. 4^th DCA 2003). In another case, an association could not force a unit owner to remove terrace railings that did not conform with the bylaws because the association had previously given permission for other unit owners to install similar non-conforming terrace railings.  Plaza Del Prado Condo Ass’n, Inc. v. Richman, 345 So.2d 851 (Fla. 3d DCA 1977).

While a powerful defense, the selective enforcement defense is not automatic for unit owners, and boards should be aware of when the defense has been unsuccessful. A court ruled the defense did not apply when the unit owner claiming the defense was the first to violate the restriction at issue.  Schmidt v. Sherrill, 442 So.2d 963 (Fla. 4^th DCA 1983). In Schmidt, other unit owners had enclosed their balconies with hurricane shutters and cloth sun-screens, but the defendants were the first to enclose their balcony with sliding glass windows. Id. at 994. The defendants put forth a selective enforcement defense because the association had permitted the other types of enclosures but not their glass enclosure. However, glass enclosures were specifically against the rules and the defendants could not show another instance where the association had allowed a glass enclosure. Id. at 966. Because the defendants were the first to violate the rules in this way, the court held the selective enforcement defense failed. Id. The defense also failed when it was used against a member-run board where the defendants argued the developer failed to enforce the restriction at issue when the board was developer-controlled prior to turnover.  Estates of Fort Lauderdale Property Owners’ Ass’n, Inc. v. Kalet, 492 So.2d 1340 (Fla. 4^th DCA 1986). Specifically, the court held the laxity of a developer in enforcing a certain restriction does not constitute selective and arbitrary conduct by the association if the association consistently enforced the rule once the board was turned over to the unit owners. Id. at 1342.

The important question is what can an association do to begin enforcing a certain restriction again where prior member-run boards failed to enforce? There is a relatively simple fix to correct this situation. The association must provide written notice to all members, informing them that on a certain future date the association will begin enforcing the restriction once again. In other words, the association must draw a line in the sand, place its members on notice and then consistently and uniformly enforce that restriction going forward. See Chattel Shipping & Inv., Inc. v. Brickell Place Condo. Ass’n, 481 So.2d 29 (Fla. 3d DCA 1985) (The court found the selective enforcement defense failed where a board notified unit owners it would not take action with respect to existing violations but any subsequent violations would not be permitted.)

If the restriction at issue involves permanent or semi-permanent matters, such as balcony enclosures or pet ownership, then prior violators must be grandfathered in as the selective enforcement defense would still apply to them. However, if the proper notice is provided, the association can enforce the restriction against future violators without fear of the selective enforcement defense. If the restriction at issue involves parking violations or amenity use, for example, then the association can simply begin enforcing that restriction uniformly after the reset date once the proper notice is provided.