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
Chapter 720 of the Florida Statutes governs Homeowners’ Associations. The Florida Legislature has defined an HOA as follows, in Florida Statute 720.301:
“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.
Florida Condo Owners: When Owners Can Go Directly to Court and File a Lawsuit and Not Be Forced to Mediation or Arbitration For Claims Against A Condo Board or Association
Dispute Resolution of Condo Controversies Outside the Courtroom: Settlement, Mediation, and Arbitration of Condo Association and Selective Enforcement Controversies
Florida Condo Owners Frustrated By Those Not Doing Their Part: Can a Condo Owner Sue a Delinquent Owner for Failing to Pay Condo Association Dues?
Florida Homeowners Associations: Condo Owners Associations Are Powerful and Community Associations Conflicts With Home Owners Abound
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a previous owner removed 2 load bearing posts from the unit below me. It was disovered 2 years ago and the association and board did not jack the floor back up, but allowed the owner to put in a post to supposedly stop further drops. My floor sagged nearly 2 inches. I was told by the association/mangement company it was a problem to be resolved between me and the current owner. I tried to get her to repair it and was told they would not spend the money, but they did submit a bill to the board for the cost to put the inadequate post back in and the board refused to pay it.
In January 2012, my tile floors was found to have continous cracks and the dropped ceiling in the kitchen began having numerous cracks. I called the management company and again got resistance to even look at it. I then said the only option was to get the building inspector to review it. I then got the board president, management company to hire a structural engr. It was determined the posts below were the cause of the sag/wall cracks. The floor has been jacked up and drywall repaired. I contacted my insurance company who also sent an adjuster and engr out to assess the damage and refused to pay my claim as they said the pole was taken out prior to my policy being put in place and cancelled my insurace as of 8/12 renewal.
I now have about 700 sf of tile to be torn out and replaced, along with baseboards. The original tile is no longer made.
What is my recourse for tile damage.
The Association has not said who is paying for these repairs as of yet. I will note the a neighbor, a board member, also took out posts causing identical damage to the unit next to me. His unit was immediately repaired, in fact, a day before mine.
The board president (and possibly other members) kept bringing up that the tile caused the sag, which has now been disproved and in writing from the engineer they hired. I had similar posts in my kitchen, but also determined by the engineer to have been put in to be decorative and conform to design when the units were built. He also indicated the tile, with the lower posts in place, were adequately supported and weight distritbuted properly by the floor joists. Even after the engineer report, the board minutes showed conversation of posts being reinstalled in my unit. When I contacted the engineer myself, that all stopped. I requested these findings be put in the minutes of the association and sent that request to the attorney they hired.
There have been memos over the years about the posts being load bearing. I have reviewed the architectural plans and clearly show the lower units to be load bearing and not the upper units as the roof is above these units and roof trusses support the structure.
The posts below me were taken out by a previous owner who sold it in 2008. He was and is personal friends of the person who was president of the association at the time. The president was in the lower unit numerous times, as was the association insurance agent, both of which were owners and occupied units at the time. The previous owner was not advised to put the posts back in. The insurance agent was also on the board. Both have sold and moved, but the insurance agent still writes the association’s insurance.
What is my recourse for my tile replacement, and any costs they may try to bill or assess me.
They knew two years ago this deficiency was there as they saw the beam drop when the drywall was replaced in 2010. The association replaced the drywall. I had a water leak which caused water to penetrate their unit which was repaired by my insurance company. The unit owner’s contractor, surprisingly, contacted me via a note left on my door and a foll0w-up call from me, telling me of the possible liability of the joists dropping. He claimed he had been a framing contractor at one time. My insurance company contacted the GC who put the posts in in 2008 and he was told to force poles back in, close it up, and the joists would not be jacked up during his repair. I don’t know if it was the current owner or the association, but both knew the situation and did nothing other than jamb a post in to fix the asthetics of the lower unit.
What is my recourse in all this? I now have to have Citizen’s Homeowner’s insurance at a cost $600/year above my standard policy with Tower. Tower first tried to claim structural collapse, which was disproved by their engineer, then it came to “preexisting condition” They paid nothing. i was exhausted trying to get my floor repaired after 2 years and thought they would help. Little did I know I would be cancelled. i even talked to the owner of my insurance agency and he did not give me advise not to contact my insrurance even it no claim was processed and that I may be cancelled.
Regarding the selective enforcement defense:
Could this defense apply to payment of annual dues? Our HOA board has not enforced annual dues payment for several years. Over half of our homeowners have not paid dues for up to four years. Our uncollected dues balance is nearly $10,000. Some of our board members are also delinquent. The board forced collection and payment of $250 in legal fees from two homeowners who withheld dues payment to bring attention to this issue. These homeowners paid the legal fees and resumed annual dues payments, while many of their neighbors continue to receive no penalty for continued non-payment of annual dues. I realize that this is a bizarre problem for a HOA, but is there a solution that would not involve further monetary risk for those of us who want fair dues collection practices?
My associations documents state that a portable basketball hoop is not allowed to be kept in front of the house. However, mine has been there for 5 years. I just received a letter stating that I needed to move it or face a fine. I went through the neighborhood and knocked on the doors of everyone who has a basketball hoop in the same location and none of them have received a letter. Is it safe to assume that I could use the selective enforcement rule for this case.
Where can I find the Florida 5 year rules as to waiver of Condo Document provisions—i.e. allowing balcony electric barbecue for over 5 years even though document say no grilling or cooking?
hello last week I received a certified letter from condo management stating my patio screens need repair.They have threatened to ….?
We bought a home in 2009 in an association in Florida. The home has a smallish shed in the backyard, ….
My HOA has authorized the relocation of my next-door neighbor’s 3-ton AC compressor and the installation of his pool pump and a pool wave generator ….
I currently live in a community with an HOA I recently submitted a request to ….
I’m having an issue about a board members personal sign in the common area of my building. I have complained for years about their 3 ft by 8″ metal sign that reads “Red Dog Alley” affixed to the back of the stairway outside their unit door. I have recently put a sign of similar size inside my unit’s bedroom window facing out to the street that reads “Evan’s Avenue”. The Association board is trying to force me to remove my sign from the INSIDE of my window, but has said this other owner/ board members sign is ok or “grandfathered in”. Their sign was put up about 12 years ago, and was admittedly done in violation of the docs/ rules, but since it’s affixed with strong bolts against the cemented stairs it’s not coming down. What’s your thoughts? I see it as “Selective Enforcement”. The association is threatening to fine me for my sign.
Greetings. I have recently moved into a neighborhood and wish to build a dock, boat lift and cover much like many others in the neighborhood. My builders plans are in compliance with al published association regulations however one board member is requiring drawings, information and making stipulations not set forth in the by laws, covenants or regulations. As soon as my builder answers one requirement this board member inflicts us with more requirements. The rest of the board is intimidated by this individual and will do nothing to mediate. What are my recourses.
Thanks you for your help.
I am the chairman of the architectural committee in an hoa in which all of the homes front on navigable waters. We have been told that hoas do not authority to deny a homeowner the right to apply for a permit to have a dock or boat lift if they are being installed in navigable water and in this case, the bottom is owned by the state of Fl. Neither structure would be touching the seawall.
Can a HOA deny a homeowner a request to install a underground propane tank (to run a standby generator) if in fact there are many already in the community both above and in ground. Some run appliances, heat pools, hot tubs and some are for generators. Can they change the rules regarding the tank location and use that for a reason to deny said request or has president already been set. Thank you very much. Candy