How To Avoid Claims Of ‘Selective Enforcement’ As A Condo Board
One of the most crucial requirements of most condominium regulations is to treat every unit owner in an equal manner wherever possible. However, when there are disputes between owners and the board, it is not uncommon to see an owner allege that selective enforcement has taken place. If a rule is enforced against one owner while another owner can ‘get away’ with flouting it, the condo board may face legal action, particularly when the stakes are high. If this is happening to your board, it is crucial to understand the underpinnings of this claim.
“Inconsistent Or Arbitrary”
The defense of selective enforcement is most often seen when owners find themselves on the wrong side of their condo boards in court. Owners allege selective enforcement when they believe that covenants or association rules are being enforced in an “inconsistent or arbitrary manner” – though this can be difficult to prove. For example, the classic Florida case is Chattel Shipping Co. v Brickell Place Condo (1985), in which some owners were allowed to put balconies on their units, but others were enjoined from doing so after an announcement from the association.
In theory, a prohibition on certain practices or items may be in effect for many years, but a condo association may decide it is not worth its while to enforce the restriction until much later on. The condo board may argue that the ban existed, but without enforcement, it is possible in Florida to argue a fait accompli – in Chattel Shipping, for example, the balconies already constructed were allowed to stand, even after the association barred any further constructions.
How To Avoid The Issue
Condo boards obviously do not want to engage in selective enforcement, but it can be easy to fall into a pattern, particularly if there is upheaval in the association. One of the best ways to discourage selective enforcement is to make prohibitions explicit – the association in Chattel Shipping effectively drew a line indicating that any balconies erected before the announcement could stand, but no more could ever be built, and with such an explicit announcement, owners would not be able to claim that the statute was not being enforced. This process is sometimes called republication.
A new board should pay particular attention to claims of selective enforcement, since the allegation becomes more common when new management is attempting to right the wrongs of the past. If you are a member of a condo association and are unsure as to how the board should enforce certain covenants, this is a prime time to enlist an attorney – experienced legal help can be vital in understanding your options and exactly how to proceed in your specific situation.
Contact A Tampa Community Association Attorney
Enforcement of condo covenants and bylaws can be a complex issue, and owners are quick to assert their rights when they fear violation. A Tampa community association attorney from the Seward Law Office can help your condo board understand both its rights and its responsibilities. Attorney Alicia Seward has handled these types of matters before, and is ready to try and assist you. Call our office today at 813-252-6789 to schedule a consultation.