The Law Offices of Herb M. Milgrim, P.A.
CALL NOW! 954-966-3909
Legal rights for condo owners in Florida exist and can protect you in these difficult situations with associations.
As an Attorney representing Condo Owners and Homeowners throughout Florida, I frequently hear one specific phrase from clients. I hear the term “Selective Enforcement” most often from people calling my Hallandale Beach, Florida office. Most people don’t really understand exactly what it means or how it applies in their specific situations. They also don’t know how it’s applied in legal cases involving owners’ disputes with their condominium associations.
Typically, Selective Enforcement is used as a defense by an owner against the association’s claims of rule violations. Specifically, the association alleges the owner violated rules or restrictive covenants found in the Association’s Governing Documents. However, in some rare cases, legal rights for condo owners include initiating a lawsuit or arbitration against their association. In these cases, they claim the association is arbitrarily or selectively enforcing rules and regulations against certain owners.
You should exercise caution before bringing any legal action against an association or homeowners association board. Consult an experienced attorney to evaluate your case and potential outcomes before you proceed with legal action. The loser usually pays the other side’s attorney’s fees under prevailing party provisions in the Governing Documents. Florida Statutes also contain prevailing party attorney’s fee provisions that apply to disputes between owners and associations.
The party challenging enforcement of an otherwise valid covenant has the burden to prove defensive matters that preclude enforcement. Legal rights for condo owners in Florida require showing 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 without understanding how it actually applies in court. If an Association is not enforcing one specific group of regulations, that does not entitle you to violate others.
If you want to claim you’re not violating an Association restriction on pickup trucks, understand your condo owner rights first. You have to show 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” always.
One of the key Florida Case Decisions on Selective Enforcement is White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla. 1979). In the White decision, the Florida Supreme Court held that enforcement of a condominium age restriction was unconstitutional. Florida condo owner rights were violated through arbitrary and unequal enforcement where other owners violated the same age restriction. The court found that allowing other owners to reside at the condominium despite violating the restriction was discriminatory enforcement.
According to Section 718.1255 of the Florida Condominium Act, many Condo Disputes in Florida require Arbitration before the DBPR. This arbitration serves as an alternative dispute resolution method before resorting to a lawsuit in the Florida Courts. The Florida Administrative Code sets forth many procedural rules that apply to these Arbitration proceedings protecting condo owner rights statewide. According to Rule 61B-45.019, the defense of selective enforcement requires the following specific elements to be proven:
“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 that you think you have 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.
Legal rights for condo owners are often challenged when Associations have big Law Firms on retainer using the money you pay for your dues. In the event you think you have a Selective Enforcement claim or other dispute with the Association, remember this: these Law Firms are not there to advise you but to represent the Association’s interests only. Before trying to deal with Association Lawyers and experienced Property Managers, you need to seek out experienced legal help. You need the advice of an experienced Trial Attorney that represents individual owners like you in these disputes.
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, Brickell Ave, 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 at (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.