Tips to Avoid Selective Rules Enforcement

How boards restart enforcement and apply every rule the same way for every owner

Uneven rule enforcement is one of the most common problems in condominium and homeowners associations. It often comes to light after an election, when a new board sets out to enforce rules that were overlooked by the board before it. When that happens, the association may be met with a selective enforcement defense.

This article is general information and is not legal advice. The association's attorney should be consulted.

What Selective Enforcement Means

Selective enforcement occurs when a rule or covenant is enforced against one owner while other owners are allowed to break the same rule without consequence. Florida courts have long allowed owners to raise selective enforcement, and the related defense of waiver, when an association tries to enforce a restriction it has ignored for others.

When the defense succeeds, the association may be unable to enforce the rule against the owner in question, and attorney fees may be lost along with the case. Each situation turns on its own facts, which is why the association's attorney should be involved before enforcement action is taken.

Why It Happens

Selective enforcement is rarely intentional. It usually develops over time:

• Violations are not noticed, or they are noticed but never documented.
• Exceptions are granted informally to one owner and later expected by others.
• Board membership changes, and enforcement priorities change with it.
• Complaints from some owners are acted on while similar violations elsewhere go unreported.
• Rules are written so vaguely that they are applied differently from case to case.

How to Restart Enforcement of an Overlooked Rule

A rule that has not been enforced can often be revived with a clear, documented process:

1. The rule should be reviewed with the association's attorney to confirm it is valid and enforceable.
2. Written notice should be sent to all owners stating that the rule will be enforced beginning on a specific date.
3. From that date forward, the rule should be enforced consistently and uniformly against every violation.
4. Each step should be documented, including the notice, inspections, and letters sent.

This approach puts the whole community on notice and creates a clear line between past and future enforcement.

Permanent and Temporary Violations

How earlier violations are treated depends on their nature.

• Permanent or semipermanent matters, such as patio enclosures, fences, or other structures that were allowed in the past, may need to be left in place. The selective enforcement defense may still apply to those owners. After proper notice, the rule can be enforced against new violations with less exposure.
• Temporary matters, such as parking, trash container placement, or amenity use, can usually be enforced against everyone once proper notice has been given.

Legal advice should be obtained on which existing conditions should be allowed to remain.

Habits That Keep Enforcement Consistent

• Regular inspections should be made on a set schedule that covers the whole community, not only the homes that draw complaints.
• Written records should be kept of every violation, letter, and outcome.
• Standard letters should be used so that every owner receives the same wording for the same violation. Guidance can be found in how to make an HOA violation letter.
• Exceptions should be granted only in writing, by board action, and for reasons that would apply to anyone in the same position.
• Clear rules should be adopted. Vague rules should be rewritten so they can be applied the same way every time.
• The legal process should be followed. Before a fine or suspension is imposed, at least 14 days' written notice and an opportunity for a hearing before an independent committee must be given under sections 720.305 and 718.303 of the Florida Statutes. The full process is covered in how to properly handle HOA violation notices.

Getting Help With Enforcement

Inspections, standard notices, and hearing schedules are handled for the communities managed by Condominium Associates, and questions about specific rules are referred to the association's attorney. To talk about your association's enforcement process, contact us.