Homeowners associations (HOAs) exist to maintain property values and community standards through the consistent enforcement of covenants, conditions, and restrictions (CCRs). However, when an association enforces rules against some homeowners but not others in similar situations, this selective enforcement can feel unfair and may constitute a legitimate legal claim. This article explores whether Florida homeowners can sue their HOA for selective enforcement, the legal standards that apply, and practical steps to address this issue.
What Constitutes Selective Enforcement?
Selective enforcement occurs when an HOA enforces a rule or covenant against one homeowner while knowingly allowing similar violations by others. For example, if an HOA issues fines to one homeowner for an unapproved fence while permitting identical fences elsewhere in the community, this disparate treatment may constitute selective enforcement.
The principle underlying selective enforcement claims is fundamental fairness: rules must be enforced uniformly across all similarly situated homeowners. Florida courts have consistently upheld this principle, most notably in the landmark case of White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979), where the Florida Supreme Court held that restrictions must be “enforced uniformly or not at all.”
Legal Standards For Selective Enforcement Claims In Florida
Under Florida law, selective enforcement serves as an equitable defense to an association’s enforcement action. The legal standard is clearly established: “An association may not enforce restrictions in a selective or arbitrary manner” (White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979)).
Selective enforcement is established when a violation, of which the board is aware or should be aware, is enforced against one individual while similar ongoing violations by others remain unaddressed. As explained in Chateau Chaumont of Ibis Isle Association, Inc. v. Williams, Arb. Case No. 93-0327, Final Order (May 30, 1995), when an association enforces a restriction against one unit owner while allowing other unit owners to violate the same restriction, this constitutes impermissible selective enforcement.
To successfully assert selective enforcement, a homeowner must demonstrate:
- Similar Violations Exist: Other homeowners have committed substantially similar violations of the same covenant or rule.
- Association Knowledge: The association knew or should have known about these similar violations.
- Lack of Enforcement Against Others: The association has chosen not to enforce the rule against these other homeowners.
- Current Enforcement Against You: The association is now attempting to enforce the rule against you.
When these elements are established, a court may prevent the HOA from enforcing the restriction against the homeowner who has raised the selective enforcement defense.
Important Distinctions In Selective Enforcement Law
Developer Actions Vs. Association Enforcement
A significant distinction exists regarding enforcement during developer control versus homeowner control of an association. In Ladner v. Plaza Del Prado Condominium Ass’n, Inc., 423 So. 2d 927 (Fla. 3d DCA 1982), the court addressed a situation where a developer had permitted architectural changes that violated uniformity provisions. When homeowners later took control of the association and began enforcing these provisions, the court held that consistent, prospective enforcement by the new homeowner-controlled association did not constitute selective enforcement—even when the developer had previously been lax in enforcement.
This principle was reinforced in Constellation Condominium Assn. v. Harrington, 467 So. 2d 378 (Fla. 2d DCA 1985), where the court explicitly stated that “prior actions of a developer cannot be used against the association in an attempt to establish selective and arbitrary conduct by the association.”
Anti-Waiver Clauses
Many HOA declarations contain “anti-waiver” clauses stating that the association’s failure to enforce any restriction will not prevent it from enforcing that restriction in the future. In Emerald Estates Community Association v. Gorodetzer, 819 So. 2d 190 (Fla. 4th DCA 2002), the court gave these anti-waiver provisions “a strong presumption of validity,” further strengthening an association’s ability to begin enforcing previously ignored restrictions—provided such enforcement is applied uniformly going forward.
Prospective Vs. Retroactive Enforcement
Florida courts generally distinguish between prospective enforcement (applying rules going forward) and retroactive enforcement (attempting to penalize past violations). Associations typically have greater latitude to begin uniform enforcement of previously unenforced restrictions on a prospective basis.
In Chattel Shipping & Investment v. Brickell Place Condominium Ass’n, 481 So. 2d 29 (Fla. 3d DCA 1985), the association had failed to enforce restrictions against balcony enclosures but later decided to enforce these restrictions uniformly going forward. The court held that this prospective enforcement policy did not constitute selective enforcement.
Legal Consequences Of Selective Enforcement
When an association has engaged in selective enforcement, Florida law provides clear consequences. As established in multiple cases, an association that has flagrantly failed to enforce covenants when it has had actual notice but then determines to enforce the same substantive restriction against a particular owner or owners is essentially barred from enforcing such covenants against that individual.
This principle was articulated in several landmark cases:
- White Egret Condominium v. Franklin, 379 So. 2d 346, 352 (Fla. 1979)
- Fifty-Six Sixty Collins Avenue Condominium, Inc. v. Dawson, 354 So.2d 432 (Fla. 3d DCA 1978)
- Plaza Del Prado Condominium Ass’n, Inc. v. Richman, 345 So.2d 851 (Fla. 3d DCA 1977)
In Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So. 2d 29 (Fla. 3d DCA 1985), the court further clarified that selective enforcement serves as an equitable defense that can prevent an association from enforcing a covenant or rule that it has selectively applied.
When Selective Enforcement Claims May Not Succeed
Not all instances of differential treatment constitute legally actionable selective enforcement. Claims may fail when:
Building Your Selective Enforcement Case
Documentation is Critical
To successfully challenge selective enforcement, thorough documentation is essential:
- Photograph examples of similar violations throughout the community
- Document dates, times, and locations of these violations
- Maintain records of all communications with the HOA about enforcement issues
- Gather evidence showing the HOA knew about other violations
- Collect any written explanations from the HOA regarding its enforcement decisions
- Review board meeting minutes that may document enforcement discussions
Consider the Totality of Circumstances
Courts examine the totality of circumstances when evaluating selective enforcement claims. Relevant factors include:
- The number of similar violations in the community
- The visibility of these violations
- The duration of time the violations have existed
- Whether the association has a reasonable enforcement plan
- Whether any legitimate distinctions exist between your situation and others
Recent Arbitration Decisions On Selective Enforcement
Recent arbitration decisions from Florida’s Department of Business and Professional Regulation (DBPR) have provided valuable guidance on how selective enforcement principles are applied in practice. Two particularly instructive cases are Allison v. The Grand at Olde Carrollwood Condominium Association, Inc. (2020) and Lovett v. Golden Lakes Village Condominium Association “A”, Inc. (2021).
Allison V. The Grand At Olde Carrollwood Condominium Association, Inc. (2020-2023)
The Allison case provides one of the most significant recent developments in Florida selective enforcement law. See Allison v. The Grand at Olde Carrollwood Condominium Association, Inc., Arb. Case No. 2020-04-0953, Summary Final Order (December 16, 2020), Division of Florida Condominiums, Timeshares, and Mobile Homes. It began in 2020 when a condominium owner installed vinyl flooring with an Impact Insulation Class (IIC) rating of 76 without prior board approval. The association fined the owner and required removal of the flooring. However, the arbitrator found that the association had previously allowed another unit owner to keep hardwood flooring (that was also installed without approval) as long as it had an IIC rating of 50.
The arbitrator recognized that while selective enforcement technically cannot be used as an offensive “sword” by petitioners, the “equitable considerations implicit in the defense” can be used to prevent associations from acting arbitrarily. The arbitrator ruled that the association acted “unreasonably, arbitrarily and capriciously” by enforcing the restriction against the petitioner while not enforcing the same restriction against another unit owner, and allowed the petitioner to keep his flooring.
The case took a significant turn when the association filed a complaint for trial de novo in the circuit court. When the circuit court incorrectly limited its review, the case was appealed to Florida’s Second District Court of Appeal, resulting in the important decision in Allison v. The Grand at Olde Carrollwood Condominium Association, Inc., 369 So. 3d 1200, 1205 (Fla. 2d DCA 2023).
The appellate court not only clarified that a “trial de novo” means a completely new trial (not a limited review of the arbitrator’s decision), but also significantly validated the use of selective enforcement by homeowners as an offensive strategy. The court expressly rejected the association’s argument that Allison could not raise selective enforcement against the association:
“We reject these arguments. ‘A party may challenge the enforcement of an otherwise valid restrictive covenant by proving defensive matters that preclude enforcement, such as the enforcing authority acted in an unreasonable or arbitrary manner.’ Curci Vill. Condo. Ass’n v. Maria, 14 So. 3d 1175, 1179 (Fla. 4th DCA 2009). We have no trouble concluding that Allison has properly raised selective enforcement as a defensive shield, both in his petition for arbitration and in the trial court, in response to the Association imposing fines against him and demanding that he remove the hard surfaced flooring he installed in his unit.”
This ruling represents a significant victory for Florida homeowners, as it confirms that selective enforcement claims can be properly raised both as a defense to enforcement actions and as part of a homeowner’s initial petition for arbitration. The court saw no meaningful distinction between these contexts when the homeowner is ultimately seeking to defend against improper enforcement.
Lovett V. Golden Lakes Village Condominium Association “A”, Inc. (2021)
In this case, homeowners filed a petition asking the DBPR to determine “Whether the Association acted arbitrarily, unreasonably, or capriciously by requiring Petitioners to remove a portion of the patio appurtenant to their unit as a condition of approving Petitioners’ application to rent their unit.” See Lovett v. Golden Lakes Village Condominium Association “A”, Inc., Arb. Case No. 2020-04-2333, Summary Final Order (April 28, 2021), Division of Florida Condominiums, Timeshares, and Mobile Homes.
The arbitrator cited previous rulings that while selective enforcement cannot be used offensively, “an arbitrator can consider the equitable considerations implicit in the defense in fashioning a relief. For example, the arbitrator could use these equitable considerations to preclude the Association from acting in an arbitrary and capricious manner.”
The arbitrator found that the association had approved another unit owner’s rental application without requiring them to remove an unapproved patio, while denying the petitioners’ rental application based on their patio (which had been previously approved by the board). The arbitrator ruled that the association “acted unreasonably and arbitrarily in refusing Petitioners’ rental application unless they agreed to remove a small portion of their previously approved patio upon selling it,” and awarded the petitioners damages for lost rental income.
These cases illustrate that the principles of selective enforcement can be applied to prevent arbitrary association actions even when homeowners are the ones initiating legal proceedings.
Practical Considerations Before Pursuing Litigation
Before filing a lawsuit for selective enforcement, consider these important factors:
- Cost-Benefit Analysis: Litigation against an HOA can be expensive and time-consuming. Evaluate whether the issue merits the financial and emotional investment required.
- Recovery of Attorney’s Fees: Florida law provides for prevailing party attorney’s fees in HOA disputes, which can significantly impact the economics of pursuing a case. However, “prevailing” is not always clear-cut, and partial victories may result in partial fee awards.
- Community Relationships: Legal action may affect your relationships within the community. Consider whether alternative approaches might preserve community harmony while addressing your concerns.
- Settlement Possibilities: Many HOA disputes settle before trial. Be open to reasonable compromise solutions that achieve your primary objectives without requiring protracted litigation.
Selective enforcement of HOA covenants and restrictions may provide homeowners with a valid legal claim or defense in Florida. The core principle is straightforward: associations must enforce rules uniformly across all similarly situated homeowners. However, the application of this principle involves nuanced legal distinctions regarding developer versus association actions, prospective versus retroactive enforcement, and the impact of anti-waiver clauses.
If you believe you are experiencing selective enforcement by your HOA, document the situation thoroughly and consider consulting with our St. Petersburg HOA lawyer experienced in HOA disputes. While legal remedies exist, the mandatory pre-suit mediation process also provides an opportunity to resolve the matter without litigation. With proper documentation and legal guidance, homeowners can effectively address selective enforcement issues and ensure fair treatment within their communities.
Contact Our Florida HOA Attorneys
If you are facing selective enforcement issues with your HOA, contact us today at 1-800-777-1305, by email at [email protected], or visit our website at https://www.pmlawfla.com/hoa-disputes/ to schedule a consultation with our team. Our experienced HOA dispute attorneys can help you understand your legal options and develop a strategy to protect your rights.
This article is for informational purposes only and does not constitute legal advice. Every case is unique, and outcomes depend on specific circumstances. Consult with a qualified attorney to understand how these principles apply to your situation.
