Selective Enforcement Of HOA Rules Can Lead To Legal Issues
Homeowners’ associations have rules for a reason, and it is up to the board to enforce them equally. Most do – but at times, whether intentionally or unintentionally, a board may allow one or more members of the association to do as they please (at least, up to a point). When this occurs, it is known as selective enforcement, and the other members of the HOA are usually quick to call it out. If your board has been accused of selective enforcement, it is crucial that you enlist the right legal help quickly to combat the allegations.
To Stop Enforcement Or To Compel It?
Community associations have a fiduciary duty to their members, meaning they must act in a way that upholds their best interests, and selectively enforcing covenants breaches that duty. A failure to enforce the regulations that all members of the HOA have agreed to abide by creates a profoundly negative impression, either of favoritism toward certain members or of sheer unwillingness to perform the duties of the board. Both are potentially actionable, and can lead to the HOA losing the right to enforce the covenants in question. .
Many people are unaware of the fact that Florida community associations may lose their right to enforce certain covenants or conditions if enough time passes without enforcing them, or if they enforce them “inconsistently, unevenly, or arbitrarily.” By comparison, an association may be forced by a court to enforce HOA regulations, but to do so evenly, instead of in a way that only affects a fraction of the association members.
To File Or Not To File?
Since a failure to enforce is almost always a breach of the board’s fiduciary duty to its members, a dissatisfied owner or board member may file suit to either compel enforcement in general, or to stop selective enforcement. It is not always easy to prevail in these actions, simply because hard evidence is often required in order to establish unequal enforcement and many times, associations do not put such choices in writing.
Nonetheless, it is often worth it to file suit if you truly believe that the same violation has been handled differently with regard to different association members. This is particularly the case if the board’s style of enforcement changed without any notice of intent to enforce or invalidate the rule in question – as one might imagine, failure to provide notice of a major change is generally unacceptable.
Contact A Tampa HOA Enforcement Attorney
Enforcement of HOA rules is not always a cut-and-dried endeavor, but in general, the duty to enforce is the most important for an HOA. If you or your board fear potentially breaching the fiduciary duty to the association members, a Tampa HOA enforcement attorney can help. The Seward Law Office has handled many of these matters before; we are happy to work on yours. Contact our office today to speak to an attorney.
Source:
flsenate.gov/Laws/Statutes/2020/720.30
