Selective Enforcement Defense Against HOA
Have You Been Singled Out?
A homeowners’ association has the duty to enforce the covenants of a community in a procedurally fair and reasonable manner. When a homeowners’ association board breaches this duty, the homeowner is entitled to the defense of selective enforcement against the HOA.
There are two types of selective enforcement:
- When an Association acts arbitrarily by enforcing some covenants but fails to enforce others
- When an Association acts arbitrarily by enforcing the same covenant differently against one owner and another, typically choosing to enforce against one owner but not others
Common Areas of Selective Enforcement
- Pet restrictions
- Architectural restrictions
- Fencing restrictions
- Parking restrictions
- Age restrictions
HOA Enforcing Rules That Have Never Been Enforced
Boards may try to enforce rules that have long been ignored by prior boards by providing written notice to all members, informing them that on a certain future date the association will begin enforcing the restriction once again. In other words, the association must draw a line in the sand, place its members on notice and then consistently and uniformly enforce that restriction going forward. See Chattel Shipping & Inv., Inc. v. Brickell Place Condo. Ass’n, 481 So.2d 29 (Fla. 3d DCA 1985) (The court found the selective enforcement defense failed where a board notified unit owners it would not take action with respect to existing violations but any subsequent violations would not be permitted.) If the restriction involves permanent or semi-permanent matters, such as balcony enclosures or pet ownership, then prior violators must be grandfathered in as the selective enforcement defense would still apply to them.
How to Prove Selective Enforcement
The key to a selective enforcement defense is a showing of unequal and arbitrary enforcement of the restriction. Therefore, if you are unlucky enough to be the first in your community to violate the restriction at issue, selective enforcement will probably not apply (not the first to be violated, but the first to actually violate).
It is also important to prove that the association is ignoring the same violation of which the board is aware or should be aware as to at least one other owner. Once there is a determination of selective enforcement by the board, the provision at issue cannot be enforced.
If you are a homeowner facing a selective enforcement dispute with your HOA, consider these tips before taking legal action:
- Take photos
- Write down the times and dates where the rule was not enforced
- Get Board meeting minutes showing the lack of other enforcement
Defending Your Rights as a Florida Homeowner
HOAs are responsible for enforcing the covenants in a fair and equal manner that does not single out one homeowner over another. In some cases, an HOA effectively singles out a specific homeowner and targets them with violations and fines while allowing other owners in the community to commit the same violations without repercussion. The declarations and covenants state the specific duties with regards to the maintenance and upkeep of each property within the association. If your HOA is failing to uphold these legal requirements, you are allowed to demand compliance and take legal action.
Fighting the Good Fight: How We Help Homeowners
HOA Defenders is committed to representing homeowners that wish to protect and assert their rights as provided by the association’s governing documents. Since its inception, we’re proud to offer our extensive experience and expertise to homeowners looking to take appropriate legal actions against unfair and illegal HOA practice. Our attorneys are committed to providing the highest level of service at every stage of your case.
As a Florida homeowner, it is crucial that you are represented by a knowledgeable legal professional that can ensure these proceedings and conditions are handled appropriately. Our firm brings years of helping homeowners just like you manage and resolve selective enforcement disputes in a smart, practical, and efficient manner.
Selective Enforcement Defense for Homeowners
As your trusted real estate attorneys, HOA Defenders can provide the fast and effective resolution you’re looking for. Whether you suspect you have been a victim of an HOA committee’s selective enforcement of the rules, or wish to assert your rights under your governing documents, HOA Defenders is ready to discuss your legal options and defend your rights as a property owner. To schedule your free consultation, contact us at 561-340-4577 for more information.