The Law Offices of Herb M. Milgrim, P.A.
CALL NOW! 954-966-3909
The Law Offices of Herb M. Milgrim, P.A.
CALL NOW! 954-966-3909


Selective Enforcement as an Affirmative Defense

Florida Selective Enforcement Defense

Many Florida homebuyers purchase condominiums or single-family homes that are located in communities controlled by homeowners’ associations (HOAs). When you want to purchase a home in this type of community, the transaction will be conditioned on your agreement to join the homeowner’s association. Living in a community controlled by an HOA comes with advantages and disadvantages. HOAs are meant to protect the property values of the homes included in the communities they control by placing restrictions on what individual owners can do with their homes. While this might seem like a good way to protect your interests, you will also need to be willing to give up your ability to make independent decisions when it comes to your home.

One issue that sometimes arises with homeowner and HOA disputes is selective enforcement. For example, if you choose to tile your home’s roof with a slightly different color than what the HOA lists as allowed, the HOA might try to enforce its covenants and restrictions and force you to pay to retile your roof in a different color. If a few other homeowners also tiled their roofs in colors other than what the HOA has included in its restrictive covenants without facing enforcement actions, you might be able to raise a Florida selective enforcement defense with the help of Florida condo attorney Herb M. Milgrim.

What Is the Florida Selective Enforcement Defense?

Some homeowners have misunderstood the Florida selective enforcement defense and think that if an HOA fails to enforce one restrictive covenant, it can’t enforce a different one. For example, a homeowner who installs a fence higher than the maximum allowed height in their HOA would not be able to claim selective enforcement based on the HOA’s failure to enforce carpeting requirements. Instead, the HOA must not be enforcing the same restriction for other homeowners that it is seeking to enforce against the defendant owner.

Selective enforcement occurs when an HOA takes action against a homeowner to try to enforce a restriction or covenant while not attempting to enforce the same restriction or covenant against others who have committed the same violation. In Florida, selective enforcement can be raised by the homeowner as an affirmative defense against the HOA.

The HOA must uphold the community’s legal standards and enforce its restrictions and covenants by filing actions against owners for any violations they have committed. However, the HOA must enforce covenants and restrictions fairly and can’t selectively enforce something against one owner but allow others to commit the same violation.

A homeowner can raise a defense of selective enforcement when an HOA board acts in a capricious, indiscriminate manner by enforcing some restrictions but not others or when it enforces a particular restriction differently for one owner versus another.

How Courts Evaluate Cases Involving Selective Enforcement Defenses

Even when an HOA has selectively enforced a covenant against some owners but not others, the court will look at the reason for the covenant before deciding against the HOA. For example, in Laguna Tropical, A Condominium Ass’n. v. Barnave, 208 So. 3d 1262, (Fla. 3d DCA 2017), a condo owner filed a lawsuit against the HOA because it selectively enforced a flooring restriction against some condo owners but not others.

The owner lived in an upstairs unit and had laminate flooring installed in her unit. The HOA had a restriction that all flooring should be carpeting and pursued enforcement against her. She presented evidence that owners of downstairs and upstairs/downstairs units had installed hard flooring instead of carpeting and did not face enforcement actions. However, the court found that the only units for which the restriction had been enforced were upstairs units and that the reason for this was because of preventing downstairs owners from dealing with excessive noise. Since the underlying purpose of the covenant’s selective enforcement was deemed to be reasonable, the court ruled in favor of the HOA.

By contrast, in Prisco v. Forest Villas Condominium Apts.,, 847 So.2d 1012 ((Fla. 4th DCA 2003), the court ruled in favor of the homeowner. In that case, the HOA had a restrictive covenant forbidding all pets except birds or fish and pursued enforcement against an owner who had a dog. The owner presented evidence that several other owners had cats and were not subjected to enforcement actions. The court found that while cats and dogs are different from each other, both are different from birds and fish. Since the reason for enforcing the covenant against a dog owner vs. a cat owner didn’t make sense, the court found in favor of the homeowner.

Get Help From the Law Offices of Herb M. Milgrim, P.A.

If you have received a notice of enforcement action from your HOA and believe you have been selectively targeted for enforcement, you should schedule a consultation with a Florida condo attorney at the Law Offices of Herb M. Milgrim, P.A. We have more than three decades of experience representing homeowners in disputes with HOAs and condo associations and can help you understand your legal options. Call us today at 954-966-3909.