Community Update

Welcome to a new, regular, feature in CUP.   Each month, “THIS CASE by Jay Roberts” will highlight and discuss an appellate decision or arbitration opinion dealing with community association legal issues and briefly discuss the impact of the decision on communities in general. We hope you enjoy!

Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc.

481 So.2d 29 (Fla. 3rd DCA 1986)

By Jay Roberts

The Brickell Place Declaration of Condominium included a provision which precluded owners from enclosing their balconies without prior approval from the association. However, until 1981 the restriction had never been enforced and as many as 45 owners had enclosed their balconies without authorization. After learning that the balcony enclosures violated the City of Miami’s zoning ordinance, the association informed the owners that moving forward it would apply the prohibition on all future balcony enclosures, but take no action with respect to the existing balcony construction.

A unit owner, Chattel Shipping and Investment Inc., enclosed its balcony after the announcement of the association’s rule, and the association sought injunctive relief (having the court force someone to do something) to impose the restriction and remove the enclosure.  The owner’s argument was that the association was “selectively enforcing” the enclosure restriction against it.  Neither the trial court nor the appellate court sided with the unit owner – but why?

The Third District Court of Appeal clarified that selective enforcement is based on the concept of estoppel. Specifically, estoppel applies where “previous non-enforcement has led to expenditures made in justified reliance on the continuation of that policy.” The court reasoned that the principle of estoppel has no application where the association gives notice that only subsequent violations will be prohibited because in those instances there has been no reliance on the status quo of non-enforcement.

So, why does THIS CASE matter?  There could be instances in your community where certain covenants or rules have not been uniformly enforced in the past. THIS CASE stands for the proposition that an association can cutoff a potential selective enforcement argument by reaffirming the specific restriction and giving notice to the membership that the restriction will be uniformly enforced going forward.  That is the easy part.  The hard part is that you must follow through and uniformly enforce the restriction!   This type of board resolution should be drafted by your legal counsel so you do not inadvertently grandfather other violations that you may be attempting to enforce.