Fairly Applying Homeowners Association and Condominium Rules
Lots of people in south Florida live in an association. Knowing what your governing documents are and what they say is important.
Selective EnforcementSelective enforcement is when an association attempts to enforce the rules against one or a select group of homeowners, while simultaneously not enforcing those same rules similarly against other homeowners. It is unlawful for an association to pick and choose who they want to enforce rules against, as they have a duty to apply the rules fairly and equally to all homeowners. Unfortunately, sometimes associations will target certain homeowners for improper or independent purposes, while simultaneously not applying those same rules to other homeowners. Selective enforcement is an affirmative defense that a homeowner may raise against an association conducting themselves in this manner. If you believe your association may be selectively enforcing rules against you, it is imperative that you speak to an experienced attorney who can analyze your individual situation along side your associations governing documents in order to give you proper advice as to how to handle this conduct.
WaiverAssociations have a body of governing documents that the association board and homeowners of the community must adhere to. Generally speaking an association has discretion to act or refrain from acting so long as the association is acting in good faith and in accordance with what is known in the business world as, the business judgment rule. Sometimes associations will stop enforcing certain rules of the community. When this happens and continues to happen for a substantial period of time, an event called waiver may occur. Say for example an association’s declaration provides that dogs over 40 pounds are not allowed in the community. While the association has every right to enforce this rule equally upon all homeowners in the community, they typically are not under an obligation to enforce this rule if they choose not to enforce it against any homeowner. The association cannot however, allow 40 pound dogs for numerous homeowners over many years and then arbitrarily begin to enforce the 40 pound dog restriction at whim. When an association fails to enforce a rule for an unreasonable amount of time, waiver has likely occurred and the homeowners may no longer be subject to restrictions of these rules.