SELECTIVE ENFORCEMENT DEFENSE AGAINST CONDO AND HOMEOWNERS ASSOCIATIONS TAMPA

Generally, in Florida, when you purchase a home, condominium, or a town house in a community it is conditional on being a member of a homeowners’ association. Although the purported benefits of living in a community with a homeowners’ association are generally for the protection of the value of your property, the disadvantage of living in such a community is the autonomy you give up. This article will discuss what happens when selective enforcement in carried out against the condo or homeowner and how to fight back with a selective enforcement defense against condo and homeowner associations

Selective Enforcement Defense Against Condo and Homeowner Associations

Plainly put, in order to live in such a community, you are obligated to abide by the restrictions of the covenants of the association recorded in the public records. If by chance your homeowners’ association does not allow parrots, then you must abide by the rules and refrain from getting a parrot as a pet. Prior to painting your house your favorite color, check the association rules as some colors are prohibited.

Homeowners Association Not Enforcing Rules

On some occasions the association may turn a blind eye to a homeowner that violates the covenants and restrictions, simply because the violation is really insignificant. If your association looks the other way over an infraction, this does not constitute a waiver, and there is a possibility that in the future enforcement procedures may be brought against you.

Selective Enforcement Defense Against Condo and Homeowner Associations

On some occasions the association may turn a blind eye to a homeowner that violates the covenants and restrictions, simply because the violation is really insignificant. If your association looks the other way over an infraction, this does not constitute a waiver, and there is a possibility that in the future enforcement procedures may be brought against you.

Occasionally, certain homeowner association violations are neglected for other reasons. Examples of these reasons can include: the violator is the president of the board’s father in law, the property manager’s girlfriend has added a new fence around her patio, the Doberman who is running about the community because he escaped from his yard belongs to one of the board members. The bottom line is that homeowner associations consistently and regularly fail to enforce the covenants and restrictions of the community against the violators all the time.

Selective Enforcement Against Pets

In one particular Florida case, the condominium association had a prohibition against all pets, with the exception of birds and fish. One of the condo tenants had a dog and once the association discovered this, the association initiated suit for the removal of tenant’s dog. The tenant, who was aware that there were other residents in the community who had cats raised selective enforcement as an affirmative defense in his answer to the suit. The trial court ruled in favor of the condominium association by granting the associations summary judgment motion. The trial court stated that they ruled for the association because cats are considered “fundamentally different” from dogs, because cats create less noise and defecate indoors.

The tenant filed an appeal and won! The 4th District Court of Appeals said that when a party brings a challenge against a restrictive covenant which on its face appears valid, the appellant has the burden of proving that the authority enforcing the covenant acted in an arbitrary and/or unreasonable manner. Although restrictive covenants should be strictly enforced. Moreover, while a cat is different from a dog, a cat is neither a bird or a fish. Furthermore, the condo association board was clearly allowing cats and prohibiting dogs, which the court viewed as selective enforcement of a restrictive covenant.

Selective Enforcement Defense Against Condo and Homeowner Associations in Florida

What does selective enforcement mean? Selective enforcement is an action taken by the homeowner or condo association in order to enforce a covenant or restriction against a particular homeowner and not against the other violators. Additionally, selective enforcement is prohibited by Florida law.

The homeowner or condo association while responsible for collecting assessments revenue, is additionally required to uphold the legal standards in the community. The association enforces the covenants and restriction by filing enforcement actions against individual owners for the violations. In turn, the owner responds against the action by asserting certain defenses including the defense of selective enforcement.

Selective Enforcement Defense Against Condo and Homeowner Associations Tampa

Homeowner or condo association boards have a duty to enforce the community covenants and restrictions in a fair and reasonable manner. When a homeowner or condo association board breaches this duty, the homeowner is entitled to the defense of selective enforcement against the board.

Selective enforcement is a valid defense for two types of board actions. The first is when the homeowner or condo association board acts in an indiscriminate and capricious manner and enforces some covenants and not others. The second is when the homeowner or condo association board acts in an indiscriminate and capricious manner in the enforcement of a particular covenant contrarily from one homeowner to another.

Florida Arbitration Requirement Prior to Filing Suit Against Condo or Homeowners' Association

Because of the sheer number of condo and homeowners’ association disputes, the Florida Legislature has created an arbitration requirement prior to being able to file suit. Another hurdle is that the losing party may be responsible for all of the attorney’s fees including the cost of the arbitration. Therefore, prior to initiating an action against your condo or homeowners’ association it is prudent to speak to an attorney to see what chance you actually have in prevailing on your suit. The legal costs associated with arbitration can run as high as $10,000.

Furthermore, under Florida law, most civil law suits once filed are referred to mediation by the presiding judge in order to see if the parties can settle their dispute without litigation. An alternative dispute resolution option for HOA disputes is private mediation.

Who Decides Whether You Can Use A Selective Enforcement Defense Against Condo and Homeowner Associations?

In the event that the condo or homeowner is unable to resolve its dispute with the homeowners’ association, in either arbitration or mediation, a Florida judge will be the one who decides whether or not the condo or homeowner has been prejudiced by selective enforcement by the Association.