A common situation facing both homeowner and condominium associations is covenant enforcement, and more specifically, when a covenant has failed to be enforced in the past but the present Board of Directors decides to enforce it moving forward. It is important to remember that the board has a fiduciary duty to enforce all of the covenants and rules in the community’s governing documents.
When associations fail to enforce the covenants uniformly, they could run into several issues. One issue we see a lot revolves around the legal doctrine of “selective enforcement”. Under Florida law, an owner may be able to raise a defense of selective enforcement by demonstrating that an association failed to previously enforce a comparable violation against an owner in the past. Selective enforcement is an affirmative defense in Florida; meaning, it could potentially bar the association from pursuing a remedy in court against the current owner in violation. This obviously raises the question, “If our association has failed to enforce a covenant previously, can we never enforce it again?” Fortunately, that is not the case.
This issue was addressed in the Seminole case known as “Chattel Shipping” (Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So.2d 29, 30 (Fla. 3d DCA 1985). The law which came out of that ruling is that an association which has allowed previous violations of a covenant may once again enforce it prospectively once all owners are put on “actual notice” that the rule will be enforced moving forward. In Chattel Shipping, a condominium in Miami had long allowed balconies to be enclosed in violation of a community covenant. Upon learning the enclosures had potential issues with city code, the association sent out a letter to all owners informing them that no further balconies could be enclosed. After this mailing, an owner sued the association to allow their balcony to be enclosed based on the argument that it had been allowed for others; basically, raising the affirmative defense of selective enforcement. The court ultimately held that the plaintiff had been put on actual notice that the covenant would be enforced moving forward and, therefore, they were prohibited from constructing the enclosure. In summary, the Chattel Shipping doctrine stands for the proposition that an association can ‘revitalize’ covenants which were not previously being enforced by putting all owners on actual notice of their intention to do so moving forward.
COVENANT ENFORCMENT TO YIELD COMPLIANCE
We encourage all associations to uniformly enforce the covenants, but most importantly, to determine what covenants are not being enforced. We assist the Association in drafting letters specifically addressing covenants/items and informing all owners that, regardless of the previous non-enforcement, the covenant will be strictly enforced against all owners in the future. Associations may not be able to retroactively go back and enforce the rule against the owners with previous violations (there are several potential legal obstacles to that and nuances which must be considered); however, this actual notice will stand up in court and defeat any potential claim of selective enforcement by an owner who went into violation after the mailing was sent out.