Waivers
What it takes for a board's own inaction to cost it the right to enforce a rule, and how to get that right back.
A waiver happens when the board's own conduct, not just one missed violation, shows it gave up the right to enforce a rule. Courts look for an intentional relinquishment or a real pattern of tolerating breaches. A board can revive enforcement by giving clear written notice that past violations are excused but future ones will not be.
What makes a waiver
A waiver is not the same thing as a mistake. It means the board's own conduct, whether a deliberate choice or a settled pattern, shows it gave up an enforcement right it actually had.
"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
One overlooked fence, or a single warning letter that never gets a follow up, is not by itself a waiver. What tips a board into waiver territory is a settled pattern: the same violation, tolerated across multiple owners, for long enough that ignoring it starts to look like a decision rather than an oversight.
Waiver, estoppel, and selective enforcement are not the same defense
Owners and boards use these terms interchangeably, but they turn on different facts.
| Defense | What it turns on |
|---|---|
| Waiver | The board's own past conduct toward the rule generally, across owners and over time |
| Estoppel | An owner's reasonable reliance on a specific representation the board or its agent made |
| Selective enforcement | Treating one owner differently, right now, from other owners in the same situation |
Florida's Supreme Court refused to enforce a no children restriction after finding the association had been
"tolerating children residing in other units"
Source: White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida
while suing to remove one family under the same restriction. That is selective enforcement: it is about inconsistent treatment happening now, not about the board's history with the rule itself.
Getting the right to enforce back
A board that let a rule slide is not stuck that way forever. A Florida appellate court upheld what practitioners call prospective enforcement: telling every owner, in writing, that past violations are excused but that the rule will be enforced from a stated date forward. The court held that a uniform, forward looking policy adopted after written notice is not
"selective and arbitrary"
Source: Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Assn., Florida District Court of Appeal
enforcement, even though the association had let similar violations stand before. The two things that make prospective enforcement hold up are notice to everyone, not just the owner in front of you, and a clear line between what is forgiven and what starts counting.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
The board has never enforced the pool's no glass containers rule for three years. It fines one owner for bringing a glass pitcher to a birthday party while several other owners use glass at the pool that same weekend without consequence. What is the owner's strongest defense?
A board wants to start enforcing a landscaping rule it has not enforced in years. What should it do to enforce going forward without losing to a waiver defense?
A property manager emails an owner that no approval is needed to replace a fence. The owner builds it. The board then tries to enforce the architectural rule the fence violates. What defense does the owner have?
Sources
- Three Common Covenant Enforcement Defenses: Waiver, Estoppel, and Selective Enforcement, Florida Condo & HOA Law Blog
- Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Assn., Florida District Court of Appeal
- White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida
Related elsewhere in the Academy
Amenities
Read Selective enforcement next to see the sibling defense that turns on how owners are treated relative to each other, not on the board's own past conduct.
Whether a court in your state recognizes waiver, estoppel, and selective enforcement as separate defenses, and how much inconsistent past enforcement it takes to trigger one, varies by state and by what your own governing documents say about enforcement discretion.