Last Update: 08/01/16
When you buy a home in a community – be it a condominium or gated community – that is subject to a condo or homeowners’ association, then like it or not, you are giving up a bit of your freedom in order to live there. The benefits of living in the shared ownership community are often offset by a downside.
Simply put, you must live in accordance with the restrictions found in the public records as well as the rules and regulations of the association itself. If they don’t allow birds, then you cannot have a canary as a pet. If they don’t allow privacy fencing, then you cannot install a wooden privacy fence. If they don’t allow exterior paint outside of a specific set of colors, then your dream of a pink house with white shutters cannot become a reality.
Of course, people are people and there are lots of occasions where residents as well as managers and board members all turn the other way to small violations – things that are considered harmless, or more often these days, things that are too minor to spend the association’s scant resources to enforce.
Sometimes, violations are allowed to exist because of other reasons: the violator is the board president’s mother in law; the manager’s best friend has fenced their patio; or the poodle belongs to the owner who is timely making the largest monthly fee payment. Whatever the reason, it’s commonplace in Florida today to have condo boards and homeowners’ associations failing to enforce all the restrictions, rules, and regulations across the board, 100% of the time.
Selective Enforcement is a valid Florida defense to HOA Actions
Which means that when a condo association or HOA does decide to enforce restrictions, rules,or regulations against one home owner and not against others, then that owner may well have a viable defense to that action, the defense of “selective enforcement.” This is because selective enforcement is against Florida law.
Florida Statutes Govern Actions of Condo Associations and HOAs
“Homeowners’ association” or “association” means a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel. The term “homeowners’ association” does not include a community development district or other similar special taxing district created pursuant to statute.
The Condo Association is not only responsible for assessment revenue and how it is spent, it’s also responsible for maintaining the community’s legal standards. The HOA does this by actions to enforce covenants and in turn, the individual condo home owner responds by defending against the action by asserting defenses, including the “selective enforcement” defense.
A home owner or condo owner can argue that he or she is the victim of selective enforcement if either:
- 1) there are facts to demonstrate that the Condo Association or Community Association (HOA) has enforced some covenants but not others in an arbitrary and capricious manner; or
- 2) there are facts to demonstrate that the Condo Association (HOA) or Community Association has unfairly and unreasonably chosen to enforce the covenant against this owner but has not done so against another similarly situated owner.
Florida Legislature and Arbitration or Mediation Before Lawsuits Are Filed In Court
Given the unique situation surrounding these controversies — both sides literally sharing a home turf — the Florida Legislature has tried to facilitate resolving them by requiring arbitration for all recall and elections disputes prior to filing a lawsuit. In arbitration, the losing party may have to pay for all the legal fees and costs of the arbitration process (which run as high as $10,000 in some instances).
Additionally, Florida law encourages the parties to use mediation before filing a formal lawsuit. Private mediation is an alternative for HOA controversies in the hopes that setting down at a table with a private mediator may help these neighborhood conflicts and Condo Wars get resolved to everyone’s satisfaction before anyone gets named as a party to a lawsuit in the court records.
Florida Courts Decide If There Has Been Selective Enforcement by a Condo Association (HOA)
If the individual home / condo owner and the Association cannot resolve their dispute outside of a lawsuit, then ultimately, the matter will be filed in the local courthouse and a Florida judge (and/or jury) will be the decision-maker on whether or not the home owner has been a victim of selective enforcement by a Condo Board.
For example, in the 2003 case of Prisco v. Forest Villas Condominium Apartments, Inc., 847 So. 2d 1012 (Fla.4th DCA 2003), it took the condo owner taking his legal fight all the way to the Florida appellate court before he was vindicated: it was selective enforcement of his condo board to try and make him get rid of his dog, when the HOA never enforced the pet restriction in regards to cats.
Larry Tolchinsky’s Tip:
Home owners fighting with HOAs and Condo Boards are always difficult situations — after all, the condo owner is literally in conflict with his neighbors, and the situation can be tense. Since these issues rarely resolve themselves quickly, the stressful environment can continue for awhile and it’s important to keep emotions in check.
Which is just one reason why having an experience Florida real estate attorney as your advocate is helpful. “Talk to my lawyer,” is a great response to anyone asking any questions. It’s also a great thing to say when any retaliation is threatened or occurs. Condo wars can be volatile!
Another reason to have a Florida attorney is because this area of Florida real estate law springs in large part from an analysis of prior case precedent, and finding arguments in past court opinions that apply and strengthen the selective enforcement defense of a new matter.
This is true regardless of the battlefield. Having an attorney available to provide legal analysis on the particular circumstances of a controversy and how the case precedent and statutory authority applies to that situation is important, regardless of whether the parties are involved in informal settlement, a private mediation, an arbitration, or a filed lawsuit.
Why? Future Florida selective enforcement cases will be resolved by Florida courts based upon the directives and guidance given by past courts on what that means exactly, such as:
1. The Florida Supreme Court in White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 350 (Fla. 1979), where the highest court in the state held ” … a condominium restriction or limitation … may be enforced if it serves a legitimate purpose and is reasonably applied,” and
2. where the Fourth Court of Appeals explained in Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla.4th DCA 1975) that “… the association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. “
A good piece of advice if you believe you are faced with a selective enforcement issue is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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