As an Attorney that represents Condo Owners and Homeowners throughout Florida, the term I hear the most from the many people that call my Hollywood Florida Office is “Selective Enforcement.” Most people don’t really understand exactly what this term means and how it is applied in legal cases where condo owners and homeowners have disputes with their associations.
Typically, Selective Enforcement is used as a defense by an owner to a claim by the association that the owner is violating one of the association rules or restrictive covenants in the Association Governing Documents. In some rare cases the owner may actually initiate a lawsuit or arbitration against the Condo Association claiming that they are arbitrarily or selectively enforcing their rules and regulations. Caution should be advised and an experienced attorney should be consulted before bringing any type of legal action against an association as the loser is usually held responsible for the other side’s attorney’s fees under the prevailing party attorney’s fee provisions in the Governing Documents and Florida Statutes.
The party challenging the enforcement of an otherwise valid covenant has the burden to prove defensive matters that preclude enforcement, such as the enforcing authority acted in an arbitrary or unreasonable manner. See, Prisco v. Forest Villas Condo. Apartments, Inc., 847 So. 2d 1012 (Fla. 4th DCA 2003). The problem usually arises when people mistakenly claim Selective Enforcement. If an Association is not enforcing one specific group of regulations, that does not entitle an owner to claim selective enforcement as to another entirely different set of regulations. If you want to claim that you are not in violation of an Association restriction on pickup trucks you have to show that they are acting in an arbitrary or unreasonable manner by allowing other owners to park their pickup trucks. You can’t compare “apples to oranges” when trying to prove Selective Enforcement, it must be “apples to apples.”
One of the key Florida Case Decisions on Selective Enforcement is the case of White Egret Condominium, Inc., v. Franklin, 379 So.2d 346 (Fla. 1979). In the White decision the Florida Supreme Court held that enforcement of condominium age restriction was an unconstitutional arbitrary and unequal enforcement of the restriction where other owners where allowed to reside at the condominium despite the fact that they were in violation of the restriction.
According to Section 718.1255 of the Florida Condominium Act, many Condo Disputes in Florida are required to go to Arbitration before the DBPR as an alternative dispute resolution method before resorting to a lawsuit in the Courts. The Florida Administrative Code sets fort many of the procedural rules that apply to these Arbitration proceedings. According to 61B-45.019 the defense of selective enforcement requires the following:
The defense of selective enforcement shall contain all examples of selective enforcement upon which the respondent depends, shall indicate the unit(s) to which each example pertains, shall identify the unit owner(s), how long the violation has existed, and shall indicate whether the board knew of the existence of the violation(s).
Simply alleging that there are other violations being overlooked at the condominium will not be enough to succeed on a claim of Selective Enforcement.
Condominium Associations and Homeowner’s Associations in Florida have big Law Firms on retainer using the money you pay as Association Dues. In the event you think you have a a Selective Enforcement claim or other dispute with the Association keep in mind that these Law Firms are not there to advise you but to represent the interests of the Association. Before trying to deal with Association Lawyers and experienced Property Managers you need to seek out the advice of an experienced Trial Attorney that represents the individual.
The Law Offices of Herb M. Milgrim, P.A. is a Florida Law Firm that represents Condo Owners, Homeowners and Cooperative Owners in Hollywood, Hallandale Beach, Sunny Isles, Downtown Miami, Aventura, Davie, Dania Beach, Cooper City, Pembroke Pines, Tamarac, Coral Springs, Boca Raton, Delray Beach, Naples or anywhere in Florida, that have disputes or are contemplating Litigation or a Lawsuit against their Association. We provide prospective clients with a Free Case Evaluation. Once we have been retained we review all of the relevant documents and governing Florida Laws and advise our clients on the best course of action. Call us now (954) 966-3909!
* Free Case Evaluation is by telephone and does not include legal advice. Office consults with legal advice are available on a flat fee basis. Personal Injury Cases may be eligible for a Free Office Consultation and Representation on a Contingency Fee Basis.