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Three Common Covenant Enforcement Defenses – Waiver, Estoppel, and Selective Enforcement

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Associations frequently find themselves in a position of strength when they wish to enforce violations of their convents.  Where the terms of a covenant are unambiguous, courts will enforce such restrictions.  However, it is not uncommon for an owner who has violated the covenants to scramble for defenses to try to justify his or her violations and give the association pause in its resolve to pursue enforcement.  While successful owner defenses are by far the exception and not the rule, three particular defenses—waiver, estoppel, and selective enforcement—are raised with such frequency that associations are wise to understand what each of these is and when it might apply.

Waiver is the intentional or voluntary relinquishment of a known right or conduct which infers the relinquishment of a known right.  The right to enforce a restrictive covenant may be lost due to waiver where, by failing to act, one leads another to believe that he or she is not going to insist upon enforcement of the covenant.  Courts have found that when an association is aware of the violations for a lengthy period of time without raising any objections it may have waived its right to later pursue enforcement of such activities. If an association postpones enforcement of violations of which it is aware for such a lengthy period that the reasonable inference can be made that the association will tolerate the violations, then waiver has occurred.  Since most associations will begin enforcement activities soon after learning of a violation, successful waiver defenses are rare.

Estoppel is the reasonable reliance upon a representation to one’s detriment. The success of an estoppel defense is generally limited to those rare occasions when the board, an association committee that is authorized to make final decisions, or an authorized agent of the association makes a representation to an owner that induces his or her reasonable reliance and that is later not honored by the association to the owner’s determent.  Absent both a representation made by the association and a later change in the association’s position, the defense of estoppel will not be able to overcome a covenant enforcement action.

Selective enforcement occurs when an association tolerates a violation by one owner and then chooses to undertake enforcement against another owner in connection with substantially the same violation.  In White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979) the court found that there was selective enforcement and refused to enforce a restriction prohibiting children from residing in condominium units against an owner who proved that while his family was targeted for enforcement, the association at the same time was tolerating children residing in other units.  The takeaway is that an association may not treat the same conduct as a violation in connection with one property and not a violation in connection with another.  Selective enforcement will not be available when distinctly different covenants are at issue.  For instance, an association’s toleration of parking violations, as an example, will not affect its ability to enforce other restrictions that are unrelated to parking.  Successful selective enforcement defenses are rare because associations tend to treat similar conduct the same and also because, if inconsistent enforcement has occurred, an association’s legal counsel will typically recommend undertaking the legal process of restoring enforcement authority as to future violations.

Obviously, determining legal strategy can be complex and nuanced, and an association is wise to consult with its legal counsel early on about any facts that may give rise to any of the defenses discussed in this article.

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