The previous boards failed to enforce the provisions of the Declaration, bylaws, and/or rules and regulations of the community and now whenever the manager tells someone that they are in violation, the response is that the Association allowed this to occur for many years without enforcement. All is not lost. A previously unenforced restriction may be “revived” with a resolution of the Board that the Association will prospectively enforce the covenants, restrictions, and rules. Essentially, the Board puts everyone on notice that from this point forward, the Board will actively and evenhandedly enforce the restriction in question. The process for reviving a provision comes from the case of Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So.2d 29 (Fla. 3rd DCA 1985).
The purpose of properly notifying owners of prospective enforcement is an attempt to dispel the arguments and appearance of unequal and selective enforcement that may be raised by owners once the Board decides to begin enforcing a previously unenforced restriction. To prove selective enforcement, an owner needs to show that there are instances of the same or similar violations of which the Board had notice, but has refused to act. This type of action can restore order to the community by returning enforceability to the previously unenforced covenants, rules and restrictions.
If your association is facing an enforcement problem, association counsel can assist in reviving a restriction. As the resolution should be carefully worded by your Association counsel.