By Ramon C. Palacio, Esq. / Published December 2019
Condominium and homeowners associations typically understand the importance of uniformly enforcing their covenants, restrictions, and rules and regulations as set forth in their governing documents. Nonetheless, an association may on occasion find itself in a situation where a particular provision in its governing documents has not been enforced uniformly (or perhaps not at all) for some time. For example, an association may have been overlooking a pet restriction in its declaration of condominium or declaration of covenants and restrictions, such as a restriction prohibiting dogs, limiting the number of dogs, or perhaps imposing a weight limitation. Other common examples include commercial vehicle restrictions, a prohibition on tool sheds, or a requirement to obtain association approval before leasing a unit or home.
At some point, possibly because the lack of enforcement gave rise to undesirable conditions in the building or community, or for other considerations, members of the association (owners) demand that the association address the problem. In response, the board of directors determines it is necessary or prudent to again begin enforcement of a restriction that has not been enforced for some time, maybe even years. In fact, the board of directors may be considering taking legal action against anyone who fails to comply.
However, if the association were to simply begin enforcing a previously unenforced restriction without first satisfying the requisite procedural and notice requirements, its actions could be challenged on the basis of waiver (albeit subject to non-waiver provisions in many association governing documents) and selective enforcement, both of which are recognized defenses in circumstances such as these. An association is said to be “estopped” or precluded from enforcing a given provision in its governing documents when there has been selective enforcement. In other words, an owner may have a very viable defense to enforcement action if other owners have been in violation of the same restriction for years and the association has not taken enforcement action against those other owners. Thus, an association could in these circumstances find itself on the losing end of an expensive arbitration or civil court case (or both).
The Supreme Court of Florida ruled on this very issue in the case of Chattel Shipping and Inv., Inc. v. Brickell Place Condominium Ass’n, Inc., 481 So.2d 29, 10 Fla. L. Weekly 2719 (Fla. App., 1985). In Chattel Shipping, the association’s governing documents prohibited enclosing balconies, yet over time some 45 owners had done so. Subsequently, a city of Miami official informed the association that zoning ordinances prohibited the enclosing of balconies. The association then informed all owners that although the association would not take action against owners who had already enclosed their balconies, the practice was expressly prohibited by the governing documents, and this prohibition would be enforced going forward, meaning no other owners would be allowed to enclose their balconies. Two years later, an owner did precisely this, enclosing his balcony. After the association’s demands that the owner come into compliance were ignored, the association filed suit seeking an injunction to have the enclosure removed. The owner defended the action on the basis of selective enforcement, arguing that unless all owners were required to remove their balcony enclosures, the association was powerless to require that only he do so. After all, the prohibition had been in the governing documents all along, thus from the owner’s perspective, it should apply to everyone or to no one at all. The court disagreed and held in the association’s favor.
The court determined that (notwithstanding the line of cases that establish that an unequal and arbitrary enforcement of a restriction cannot be supported) when an association adopts and implements a uniform policy that as a practical matter as well as for economic reasons will be enforced only prospectively, the policy will not be deemed arbitrary and selective. Consider the practical and economic burden upon the association if it were required to file suit against 45 owners as a prerequisite to enforcing the prohibition in question. Moreover, as the court stated in Chattel Shipping, the association may be legally estopped from forcing compliance from those particular owners who may have relied on the association’s non-enforcement of the balcony restriction (or perhaps even tacit approval) before undergoing the expense.
The takeaways here are that a new or changed rule or restriction, or policy interpreting or affecting the rule or restriction, must be properly adopted and implemented as a prerequisite to enforcement action. Moreover, depending on the circumstances, the new or changed rule or restriction could potentially be applied only prospectively and yet not be deemed to be arbitrary and selective. Notably, however, in adopting and implementing the rule or restriction, an association would in most circumstances be well-advised to follow the formalities set forth in Florida Statutes with respect to adopting an amendment to the association’s rules and regulations concerning the “use” of a unit or parcel, as discussed further.
Those formalities regarding rules concerning “unit use” (which is a rather broad and encompassing term) are set forth in Section 718.112(c), Florida Statutes. It requires informing unit owners with at least 14 days’ notice (specifically identifying the agenda items), mailed, delivered or electronically transmitted, as well as posting conspicuously on the condominium property for the same period of time. Florida Statutes Chapter 720 contains almost identical language with respect to “parcel use,” setting forth these same formalities. Moreover, recent changes to Florida Statutes Chapter 720, which now includes rules and regulations within the definition of “governing documents,” arguably requires the recording of any new or amended rules and regulations before they are deemed effective and sets forth the specific manner in which amendments to the governing documents must be proposed. Additionally, an association’s governing documents may set forth additional procedural requirements beyond those set forth in Florida Statutes.
Given the legal implications involved in the adoption and implementation of amendments to the governing documents, including rules and regulations and their subsequent enforcement, associations should consult with their legal counsel on these matters (just as they prudently would do on any other legal matter) early in the process. This would allow the association’s legal counsel an opportunity to better identify the association’s goals, develop the appropriate language to be proposed for adoption, and then properly adopt and implement the policy.
The association’s legal counsel will also be in the best position to advise the association whether enforcement may be legally supportable against owners who violated the prohibition in question during the period that it was not being enforced, or whether enforcement should be only prospective in nature. In short, although associations should ensure that their covenants, restrictions, and rules and regulations are enforced consistently and uniformly, through close consultation with legal counsel the association will be in the best position to remedy the situation.
Ramon C. Palacio
Supervising Partner, Association Law Group (ALG)
Ramon Palacio is the Supervising Partner at Association Law Group (ALG) and serves as general counsel to condominiums and homeowners associations throughout the state of Florida. He is Board Certified in Condominium and Planned Development law, reflecting the highest level of evaluation by the Florida Bar as to competency and experience of attorneys in their respective certification practice area, and holds an AV Preeminent® rating, the highest possible rating in both legal ability and ethical standards. He can be reached at firstname.lastname@example.org.
For more information about his firm, visit www.alg-firm.com.