Exceptions
When the board lets a rule slide for one owner, and what that decision can cost later.
An exception is the board choosing, case by case, to let a rule not apply to a particular owner or situation. It is discretionary, unlike a formal variance process or a reasonable accommodation required by federal law. Granted inconsistently, exceptions become the fact pattern courts call selective enforcement, and a court can refuse to enforce the rule at all.
What an exception actually is
"Exception" isn't a defined legal term the way variance or waiver are. Boards use it as a catch-all for any one-off decision to let a rule not apply: skip a fine this once, let an odd paint color through, wave through a parking violation for a weekend guest. Whatever the board calls the decision, the same legal exposure attaches the moment it isn't applied the same way to every owner in the same situation. That exposure has a name: selective enforcement.
The real risk: selective enforcement
A board that tolerates a violation for some owners while enforcing the identical rule against another owner is not protecting the rule, it is handing the singled out owner a defense. Florida's Supreme Court refused to enforce a no-children restriction against one family after finding the association had been letting other units keep children the whole time.
"tolerating children residing in other units"
Source: White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida
The fix isn't to freeze every exception forever. A board can start enforcing a rule it previously let slide, as long as it gives every owner clear written notice first that past violations are forgiven but future ones will not be. What it cannot do is enforce against one owner while quietly letting an identical violation from a neighbor stand.
One request isn't discretionary at all
A request for a wheelchair ramp or other disability related change is not a discretionary exception. Under the Fair Housing Act, refusing to adjust a rule for a resident with a disability, when the adjustment is necessary for them to use and enjoy their home, is itself unlawful discrimination, not a favor the board can decline because it prefers not to.
"a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling"
Source: Fair Housing Act, 42 U.S.C. § 3604(f)(3)(B), U.S. Congress
The board can say no only on narrow grounds described in joint HUD and DOJ guidance: an undue financial and administrative burden on the association, or a change that would fundamentally alter how the association operates. Aesthetics and personal preference aren't on that list.
Granting a discretionary exception without creating exposure
When an exception genuinely is discretionary, for example architectural leeway that isn't tied to a protected right, the way to keep it defensible is to write down the criteria first and apply them the same way to every request that fits. Restatement commentary on design authority treats consistent application of stated criteria, not a case by case gut call, as what makes a discretionary decision hold up.
"consistent application of the guidelines"
Source: Restatement (Third) of Property: Servitudes § 6.9 cmt. d, American Law Institute
Keep a short written record of what was requested, what the board decided, and why. That record is the difference between an exception and a pattern the next lawsuit calls selective enforcement.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
The board let one owner's fence violate the height rule for two years without penalty. Now it wants to cite a different owner for the same violation. What is the board's biggest exposure?
A resident with a disability requests a ramp that would violate the community's design standards. On what basis may the board deny it?
The board wants to grant a fence color exception without risking a later selective enforcement claim. What should it do?
Sources
- Restatement (Third) of Property: Servitudes, American Law Institute
- White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida
- Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Assn., Florida District Court of Appeal
- Fair Housing Act, 42 U.S.C. § 3604, U.S. Congress
- Joint Statement on Reasonable Accommodations Under the Fair Housing Act, HUD and U.S. Department of Justice
Related elsewhere in the Academy
Rules & Rulemaking
If a rule hasn't been enforced the same way for everyone, the next lesson on selective enforcement walks through what a court will look for.
How closely courts scrutinize a pattern of inconsistent enforcement, and what facts are enough to prove it, varies by state. Whether a specific accommodation request counts as an undue burden is decided case by case on its own facts, not by a fixed rule.