A legal blog addressing common questions and issues that community association owners, board members, and others face. The goal is to provide information, services, and an online community to enhance the experience of association living in Florida.
Selective Enforcement of Rules and Waiver of Covenants
What do you mean I can't build a fence??.... my neighbor has a fence! You waived late fees for them....why can't you waive late fees for me??? I can't have a sign on my truck??? my neighbor has a sign on their truck, they just aren't here during the day so people don't see it.
There are many examples of situations when the uniformity of enforcing rules is put into question. This post will address what a Board should do to maintain rules and regulations, what happens when a Board has been enforcing rules against some and not others, and how to reestablish those rules that haven't been enforced.
Associations are a communal style of
living, meaning people generally live in close proximity to one another and are
required to share aspect of the association like a pool and other common areas
along with sharing the expenses of the association. All community associations
have rules, restrictions, covenants, etc. which govern the association and the
aspects of living described above. These rules describe everything from how
meetings are to be run to how owners can use their units and the common
elements. In Florida, each Board has a statutory fiduciary duty to enforce
those rules and restrictions. However, despite this duty, and for a variety of
reasons, the enforcement of certain rules tends to get overlooked or bent by
There's two major legal concepts that won’t
be found in the association rules or Florida Statutes that could apply to these
situations: Selective Enforcement and Waiver,
Selective enforcement means you cannot
ignore violations of a rule by some and enforce the same rule against others. Typically,
disputes come up when there's a natural progression of the violation. For
example, the association has a no pet rule and the board finds out that an
owner has a bird and chooses to ignore the violation. What happens when the
next owner brings in a 75 lbs dog into the community??? Is the whole rule
regarding pets now blown or is there just an exception for birds?
Waiver is a similar legal concept in that
if the board ignores an obvious rule violation for a specific amount of time,
enforcement of that rule might be "waived" against future rules
violations of the same nature.
In the case of Prisco
v. Forest Villas and association had a rule saying "no pets,
except birds and fish." However, the board was allowing cats to live
in the community too. When an owner brought a dog into the community and board
tried to enforce their "no pets" rule arguing that cats and dogs are
different, maybe they've created and exception for cats, but certainly not for
dogs. The Florida appellate court disagreed saying neither cat nor dogs
are fish and birds, therefore the whole rule was blown.
First, it should be said, the best way to
avoid this matter entirely is to CONSISTENTLY AND UNIFORMLY ENFORCE THE
RULES!!!! It's not the board's place to decide which rules are fair and should
or shouldn't be enforced. Boards wear the hat of all three branches of
government but in this case they are impartial judges meant to read and enforce
the rules as best they can. If the board and membership truly feel that a rule
should be changed, it should put on its legislative hat and efforts should be
made to get the requisite votes to change the rule.
So what's a board
to do when there's been waiver or selective enforcement of a rule and the board
wants to start enforcing that rule again? Fortunately, it's not overly
difficult. The board needs to call a meeting and pass a resolution that it's
going to begin enforcing the rule again. All owners are then put on notice that
the rule is going to be enforced from that point forward and all new violations
can be addressed accordingly.
issue is what about the violations already in place? The association passes a
resolution that it will begin enforcing its no pet policy again, what happens
to the owners who already have pets in the community? The short answer
is....they are grandfathered into the rule. The rule will not be applied
retroactively. An owner with a pet cannot get more new pets, when their current
pet meets its unfortunate demise the pet cannot be replaced, and anybody
without a pet cannot get a new pet. But the board will not be able to compel the
person to get rid of their existing pet.
Enforcement and Waiver are an important but tricky subject at meetings. I
encourage board members to realize that when they are enforcing rules they
aren't judging whether the rules are fair but simply complying with their
fiduciary duty to the association. If an owner takes issue with a rule,
encourage them to make a campaign to get the rule changed. Whether a rule
violation is by the woman who regularly volunteers for
the association or the deadbeat owner that's always late paying
assessments, the rules should be the same for everybody.