GETTING RULES ENFORCED

 

Many homeowners associations hear the standard challenges when enforcing rules:

  • My neighbor has a wood fence, why can’t I erect one?
  • No trucks!! The last board never enforced that rule, and I relied on that and just bought a new truck.
  • No one told me about any rules when I bought the house!
  • No judge will ever think that rule is fair!!

Usually the weaker or more non-sensical the violator’s defense, the more vehemently it is asserted.

Some of our favorite defenses are those that make some remote sense or show some original thought, such as:

  • I’ll need that 100’ ham radio antenna to save lives when the next hurricane comes!!

Dealing with the selective enforcement defense

Amusement aside, associations are often faced with some real questions and dilemmas when enforcing rules. One selective enforcement defense. This defense is raised when some owners are allowed to have a violating feature, and others are prohibited. Similar to the selective enforcement defense are the estoppel and waiver defenses, which argue that associations have said or done things that set a precedent for allowing the otherwise prohibited condition.

Often selective enforcement problems are an unwelcome part of what associations receive from developers at turn over. While developers usually provide good association documents and rules, in their push to make sales they can “waive” restrictions for particular buyers or, worse, take advantage of “developer exceptions” in the documents. (The directors of developed-controlled associations who “waive” restrictions to help their developers get sales can be liable for breach of fiduciary duty.)

Many associations fear the selective enforcement defense more then needed. Based on the cases reported at the appellate court level, associations more often than not overcome the selective enforcement and related defenses.

Prospective Enforcement Allowed

Associations facing widespread existing rule violations, such as where numerous owners have spent substantial money installing some feature which violates the rules, can deal with the problem by preventing it from getting worse, i.e. retroactive enforcement against those who have already violated, but no one else allowed to do it.

In Chattel Shipping and Investment v. Brickel Place Condominium Association, 481 So.2d 29 (Fla. 3rd DCA 1986), the Declaration of Condominium precluded the practice of enclosing balconies without prior approval, but the board had not enforced this provisions, and 45 unit owners had enclosed their balconies without authorization. Then the board received notice form the City of Miami that the enclosed balconies were a zoning violation. The association informed the owners that it would thereafter take no action with respect to existing enclosed balconies, but would prohibit future balcony enclosures. The court rejected the defense of selective enforcement under these circumstances, stating that the adoption and implementation of the uniform policy under which a given building restriction will be enforced only prospectively, can not be deemed selective and arbitrary.

Developers’ permissions don’t count
against an Association after turnover

An association also does not inherit the poor track record of a developer who may have wrongly allowed things when in control of an association. Once an association takes over form the developer, it operates with a clean slate and can enforce restrictions that the developer failed to enforce. In the case of Estate of Fort Lauderdale v. Kalik, 492 So.2d 1340 (Fla. 4th DCA 1986), the court noted that laxity of the developer in enforcing restrictions does not constitute selective and arbitrary conduct by the association if the association consistently performed its duty to prevent violation of the restrictions prospectively once it obtained the right to do so.

When the selective enforcement
defense can defeat the Association

In White Egret Condominium v. Frank, 379 So.2d 346 (Fla. 1980), the Florida Supreme Court prevented a condominium association from selectively enforcing the restriction banning residents under the age of 12 against one family because the condominium association had never bothered to enforce the restriction against two families with children who were already living in the condominium complex.

Why did the association lose in White Egret? One explanation is that it is easier for a court to require someone to take down an antenna or fence then it is to make a family with children move out of their home.

In the case Plaza Del Prado Condominium Association v. Richman, 345 So.2d 851 (Fla. 3rd DCA 1977), the association was prevented from requiring unit owners to remove nonconforming terrace railings because such unit owners had been given prior permission from the developer, other unit owners had made changes to their railings with permission from the developer and the association, and the association waited more than a year to demand compliance with the condominium by-laws. However, the Plaza Del Prado case is of limited applicability because this same appellate court has expressed a contrary position in Brickel Bay Club Condominium Association v. Hernstad, 512 So.2d 994 (Fla. 3rd DCA 1987), where the court stated:

The courts of this state have uniformly refused to apply estoppel principles to permit alterations of condominium property without written permission of the Association.

What to do with selective enforcement

The association which knows of a potential selective enforcement defense to a rule should not give up on that rule. Instead, the association’s legal counsel can give guidance and often the selective enforcement defense can either be beaten or circumvented through an announced “prospective enforcement only” policy.

Answering some of the other enforcement responses.

As mentioned, some owners will respond to the association when it is enforcing a rule:

  • No one told me about any rules when I bought the house!

Whether or not this is actually true, it does not matter. Declarations and other association documents are recorded in the public records, and buyers are legally considered to know what’s in the public records.

Also, there is the last ditch “fairness” rebuttal:

  • No judge will ever think that rule is fair!!!.

Unfortunately, any student of the law or life knows that “fairness” rarely controls things, probably because fairness, like beauty, is in the eye of the beholder.

Rules and prohibitions are enforced unless arbitrary and unreasonable, Coral Gables Investments, Inc. v. Graham Companies, 528 So.2D 989 (Fla. 3rd DCA 1988), and it is rare that a judge will refuse to enforce a rule on such a basis.

Important Note: This article is for general information only and is not intended to give any specific legal advice or opinion which should be sought from an attorney. The facts of any particular situation need to be examined before deciding on a legal course of action.

Copyright © 2001 by Tucker Tighe P.A. All rights reserved.