Generally speaking, an Association may lose its right to enforce its Governing/Condominium Documents if it does so inconsistently, unevenly, or arbitrarily. This is a concept known as “selective enforcement” and is shown when there are instances of similar violations, of which the board had notice but failed to act. When “selective enforcement” is demonstrated, the Association is said to be “estopped” from enforcing the given restriction.
In a 1985 Florida appeals court case called Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So.2d 29 (Fla. 3d DCA 1985), the court addressed an unenforced provision in the Declaration of Condominium of a high-rise condominium that prohibited Unit Owners from enclosing their balconies.
After approximately forty-five (45) Unit Owners had already done so, the Association received a letter from a local government official notifying the Association that the enclosures violated the city’s zoning ordinance. The Board then notified Unit Owners that the Association would take no action with respect to the already existing enclosures but no future enclosures would be permitted.
When a Unit Owner then installed an enclosure without permission, the Association sued for injunctive relief to require the Unit Owner to remove it. The Unit Owner argued unsuccessfully that the Association was “selectively enforcing” its restriction because the Association did not require the prior enclosures to be removed and appealed the lower court’s entry of the injunction.
On appeal, the court again rejected the Unit Owner’s “selective enforcement” defense holding that the Association could enforce its restriction prohibiting balcony enclosures after it had informed the owners that it would take no action with respect to existing violations but would enforce the prohibition prospectively. The Court reasoned that the Unit Owner erected the enclosure after being placed on specific notice that any subsequent installation would not be permitted.
Accordingly, when it comes to inconsistently enforced or unforced restrictions, all is not lost and your Association, in consultation with its legal counsel, may also be able to “draw a line in the sand” and “reset” the restriction. If the violations that have been tolerated are of a continuing nature, a robust process is needed. Typically, this involves inventorying the continuing violations that have been established and providing specific written notice to all owners that no new violations of this kind will be tolerated. If your Association is facing an enforcement problem, your Association’s attorney can assist the Board in determining whether retaking the right to enforce a restriction against future violations is the appropriate remedy.
