Tips to Avoid Selective Rules Enforcement
One of the most challenging aspects of effectively managing a condominium or homeowners association is dealing with inconsistency in rule enforcement. When members decide to run, they often do so because they feel the current leadership is not doing a good job. If a board fails to act, a newly elected board might enforce the association's bylaws. This response can lead to selective enforcement defenses, which creates a problem. How can boards avoid the particular enforcement defense when enforcing HOA rules and regulations?
Florida Law on Selective Enforcement
Under Florida law, an association attempting to enforce a covenant or restriction against one homeowner while allowing another homeowner to violate the same regulation without consequences constitutes selective enforcement. Unfortunately, this is a common problem for association boards.
Selective Enforcement Throughout the Years
Successful for homeowners over the years, the selective enforcement defense can prevent enforcing a "no pets" restrictive covenant against a homeowner who owned a dog because the association had failed to enforce that same pet restriction against cat owners.
Similarly, another association couldn't force a homeowner to remove terrace railings that did not conform to the association's bylaws because the association had previously allowed other homeowners to install similar non-conforming terrace railings.
How to Remedy the Problem
How can an association enforce a restriction that previous board members failed to carry out? One way is for the association to provide written notice to all members informing them that the association will begin enforcing the restriction on a specific date. By this action, the association puts its members on information, and moving forward—the association consistently and uniformly enforces that restriction.
Permanent or Semipermananent Matters
Suppose the restriction involves permanent or semipermanent matters, such as back patio enclosures or pet ownership. In that case, prior violators may need to be grandfathered in as the selective enforcement defense would still apply to them. However, if the board provides proper notice, the association may enforce the restriction against future violators with less exposure to the selective enforcement defense. In contrast, if the limitation involves temporary matters, such as parking violations or amenity use, the association can notify the association to enforce that restriction uniformly.
Newly Elected Boards and Selective Enforcement Defense
The selective enforcement defense can cause problems for newly elected boards attempting to improve the community by enforcing the association's previously overlooked rules and restrictions. However, the defense is not without limitation. Suppose your association is concerned as to whether it is interpreting or enforcing its rules and regulations properly. In that case, you should reach out to your association attorney and consult with your community manager.
Contact Us
Condominium Associates is here to help you with any issues concerning selective enforcement. When it comes to these matters, we seek the most qualified in the property management business to do the job. Contact your property manager or call the office! We are your South Florida HOA association.
