Consistent enforcement
Applying a rule differently from owner to owner is the fastest way to lose the right to apply it at all.
Consistent enforcement means applying a rule the same way to every owner in the same situation, not just to the ones a board happens to notice or dislike. Courts have refused to enforce a restriction against an owner singled out while others broke it unpunished. Uneven enforcement can cost the board its right to enforce the rule at all.
Selective enforcement can undo the rule entirely
A rule that is written reasonably can still become unenforceable if the board applies it unevenly. In White Egret Condominium v. Franklin, an association tried to enforce a no-children restriction against one family while allowing other unit owners' children to live in the community without objection. Florida's supreme court refused to enforce the restriction against the family that had been singled out.
"tolerating children residing in other units"
Source: White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida
The lesson is not "never grant an exception." It is that a rule enforced against one owner and ignored for a similarly situated owner stops functioning as a rule at all, and a court can say so.
A friendly exception is not automatically a waiver
Boards sometimes worry that letting one thing slide, once, permanently disarms the rule. That is not quite right. Waiver and estoppel are separate defenses from selective enforcement, and both require more than a single missed enforcement action.
"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: Waiver, Estoppel, and Selective Enforcement, Florida Condo & HOA Law Blog
Estoppel works differently: it turns on an owner reasonably relying, to their detriment, on something the board specifically said or did, not just on the board's silence. Neither defense needs to succeed for a board to still have a problem, though. If enforcement is uneven right now, among owners in the same situation right now, that is a selective enforcement claim, separate from anything about the past.
Reviving a rule the board stopped enforcing
A rule that has gone unenforced for years is not dead. A board can restart enforcement, but not by suddenly citing one owner while ignoring identical violations by everyone else. The reliable path is a uniform, written, forward-looking policy: notify every owner that past violations will be left alone but violations going forward will be enforced, then hold every owner to that line the same way. Courts have found this approach is not "selective and arbitrary" enforcement, even where the association tolerated the same kind of violation before.
Consistency also means the board can show its work. Design and use decisions hold up better when they reflect consistent application of the same criteria, with reasons the board can point to, rather than a one-off judgment call. Whether your state's courts weigh this exactly the same way varies, so check your governing documents and enforcement history before restarting a lapsed rule.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
The board has never enforced the no-boat-in-driveway rule against the Petersons, but sends a violation notice to the Alvarezes for the same thing. What is the board's biggest legal risk?
The board stopped enforcing the fence-height rule years ago. It now wants to enforce it again, starting today, without being accused of selective enforcement. What should it do first?
An owner argues the board waived its right to enforce the pet-weight rule because it once let a neighbor's large dog stay for a summer. What does the board need to show this is not waiver?
Sources
- Hidden Harbour Estates, Inc. v. Norman, Florida District Court of Appeal
- White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida
- Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Assn., Florida District Court of Appeal
- Three Common Covenant Enforcement Defenses: Waiver, Estoppel, and Selective Enforcement, Florida Condo & HOA Law Blog
- Restatement (Third) of Property: Servitudes, section 6.9 (as quoted in Moretto v. Elk Point Country Club Homeowners Association), American Law Institute
Related elsewhere in the Academy
Rules & Rulemaking
Already dealing with an owner who says "you never enforced this before"? Read Selective enforcement next.
How much written notice courts expect before a lapsed rule can be enforced again, and how a single exception is weighed against a pattern of waiver, vary by state and by your governing documents.