Selective enforcement

What counts as selective enforcement

A board does not have to catch every violation to enforce a rule fairly. But if the board lets some owners violate a rule while going after one owner for the identical thing, the owner singled out has a real defense, and it can work. This is a distinct problem from whether the rule itself is reasonable, which depends on the rule and state, check board-authority-to-adopt-rules; a perfectly valid rule can still become unenforceable if the board applies it unevenly.

In White Egret Condominium v. Franklin, the association tried to enforce a no-children restriction against one family while allowing children to live in other units. The Florida Supreme Court would not enforce it.

"tolerating children residing in other units"

Source: White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida

The lesson is not "never miss a violation." It is that a board cannot pick and choose whom a rule applies to, on the same facts, at the same time.

Reviving a rule you have stopped enforcing

Boards often discover a rule has quietly gone unenforced for years. That is not a permanent loss. A board can start enforcing again, but only going forward, and only after telling every owner clearly, in writing, that past violations will be left alone while future ones will not.

In Chattel Shipping & Investment v. Brickell Place Condominium, an association did exactly this: it adopted a uniform policy of enforcing a restriction only from that point on, after written notice, even though it had let earlier violations stand.

"selective and arbitrary"

Source: Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Assn., Florida District Court of Appeal

The court held that this kind of policy, enforced consistently from the notice date forward, is not the "selective and arbitrary" enforcement that gets a restriction thrown out. What the board cannot do is skip the notice and simply start enforcing against whichever owner draws its attention first.

Selective enforcement, waiver, and estoppel: not the same defense

Owners and their attorneys sometimes raise three different defenses together, but a board should know they are not interchangeable. Selective enforcement is about inconsistency between owners. Waiver and estoppel are about the board's own conduct toward a single owner.

"the intentional or voluntary relinquishment of a known right or conduct which infers the relinquishment of a known right"

Source: Three Common Covenant Enforcement Defenses, Florida Condo & HOA Law Blog

Estoppel is narrower still: it requires an owner who reasonably relied, to their detriment, on something the board said or did. A single missed violation is rarely enough to establish either defense on its own; both usually turn on a pattern of conduct or a specific representation the board made. This matters for the board's own fiduciary exposure too, since a board that cannot explain its own inconsistency is a board that struggles to show it acted in the association's best interest.