As often happens when a community association enforces its covenants and rules and regulations against an owner, the owner responds to the association saying, “The house down the street is in violation with the rules and regulations, too! Why aren’t you sending them a demand letter?” When this happens, the owner is invoking the defense known as “selective enforcement”.
Selective enforcement is a claim made by the defending-owner that the association is unequally and arbitrarily enforcing the association’s restrictions against them. Ultimately, should the matter proceed to litigation, the defending-owner has the burden to their selective enforcement defensive.
A common mistake in proving the selective enforcement defense is that the defending-owner fails to make an apples-to-apples comparison. For example, an owner defending themselves against a violation for failing to park their car head-in in the association’s parking spaces cannot claim that the association is selectively enforcing the restrictions against the owner because the association has allowed trucks, which are otherwise prohibited, to park in the association’s parking spaces.
While the owner in the January 25, 2017 decision of Florida’s Third District Court of Appeal in the case of Laguna Tropical, A Condominium Association, Inc. v. Barnave did not make this common mistake, common sense and proper enforcement of the association’s restrictions prevailed.
At issue in the Barnave case was the enforcement of two restrictions: (1) a requirement to obtain the prior written consent of the association’s board of directors prior to altering, modifying, or replacing the interior of a unit, and (2) a prohibition on the installation of any type of flooring except carpeting, unless otherwise approved by the association and with the required installation of noise and sound abating materials.
The unit owner in this case, who owned an upstairs unit in a two story condominium, leased her unit to a pet owner, whose pet damaged the carpeting. In preparing the unit for a new tenant, the unit owner replaced the damaged carpeting with laminated flooring. Not long after the laminated flooring was installed, the resident in the unit located directly below the new tenant complained about the noise coming from the upstairs unit. The association then sought enforcement of the abovementioned restrictions against the unit owner and the new tenant. After unsuccessful enforcement attempts, the association filed a lawsuit against the unit owner and the new tenant seeking injunctive relief against the owner and the new tenant.
At trial, the unit owner successfully defended against the association’s enforcement efforts by claiming selective enforcement of the flooring restrictions. The association then appealed the trial court’s decision. (In and of itself, this author finds it troubling that the trial court could reach such a decision given the findings presented by the appellate court, discussed below.)
On appeal, the unit owner argued that the association selectively enforced the flooring restriction on only 11 of the condominium’s 94 total units. However, as explained by the appellate court, the association could only enforce the flooring restriction on these 11 units because these were the only upstairs units within the condominium for which the noise created by improperly insulated flooring would be an issue. The remaining units were either downstairs units or two-story units for which noise abating flooring is not an issue.
Further, the appellate court found that of the prior noise complaints received by the association from residents of downstairs units, the association had successfully enforced the flooring restriction upon the offending upstairs units, and that there was no evidence to show that the association had declined to enforce a noise complaint from a resident of a downstairs unit based upon replacement of carpeting with tile or wood flooring.
Based on common sense and responsive enforcement by the association, the appellate court reversed the trial court’s decision and held in favor of the association. This case, although in the win category for community associations, is a reminder to boards of directors to uniformly and fairly enforce the covenants, restrictions, and rules and regulations of their association.
Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.