SELECTIVE ENFORCEMENT CAN BE A KILLER
Greenacres is a delightful residential community where the children laugh, the flowers grow and the birds sing. In order to preserve this little slice of paradise, a recorded Declaration of Covenants and Conditions forbids anyone from having a dog that weighs more than twenty (20) pounds.
Joe and Sally Smith have owned a home in Greenacres for five years. They are a very nice couple with very nice children who always say 'yes sir' and 'no sir'. They’re always friendly and have never caused any problems. The Smiths have owned a beautiful Dalmatian named Spot who has lived with them since shortly after they moved into Greenacres. Everyone loves to play with Spot. He weights fifty (50) pounds.
Billy and Ann Jones moved into Greenacres earlier this year. Unlike the Smiths, they are unfriendly and their children always seem to be lurking around the community. The Jones never miss a chance to criticize the Association and typically pay their assessments on the last day in which they are due. The Jones have a mutt named Wart who is a very nice dog, but not very attractive. He also weighs fifty (50) pounds.
The Board at Greenacres met and decided that Wart must go because he exceeds the twenty (20) pound limit established in the Declaration and directed the Association’s attorney to file an action to remove the dog. They ignore Spot. The attorney dutifully writes to the Jones and demands that Wart be removed. In return, the attorney receives from the Jones a nice 8 x 10 photograph of Spot along with a suggestion that the attorney 'take a walk'. At this point the attorney pulls out the law books and looks up'SELECTIVE ENFORCEMENT' and finds the following:
EQUITY IS AS EQUITY DOES:
Under Florida laws, before a court will enforce a covenant restriction it must determine that it is 'equitable' or 'fair' to grant the relief requested. As a result of this requirement, several 'equitable defenses' have arisen including, but not limited to, 'estoppel', 'waiver' and 'selective enforcement'.
WHAT IS SELECTIVE ENFORCEMENT AND WHAT HAPPENS IF YOU ARE GUILTY OF IT:
In its simplest terms, selective enforcement is the failure of the Association to enforce its restrictions in a uniform and even handed way. If this defense can be legitimately proven, the Association will have a very difficult time winning its case.
LIMITATIONS ON THE USE OF THIS DEFENSE:
Just because a defendant claims selective enforcement does not make it true. They still must prove their case. One of the most important limitations on the use of this defense is that the claim of failure to enforce must relate to the same or very similar restriction that is being enforced in the pending suit. For instance, the Association’s failure to enforce a basketball goal restriction cannot be raised as a selective enforcement defense in a case relating to dogs.
WHO WINS IN THIS CASE:
Based on the fact pattern outlined above, I believe that it is safe to say that a court would rule on the side of the Jones and permit them to keep Wart.
The enforcement of violations is a serious matter, and must be treated in an even-handed and swift manner. The Association should establish a routine procedure that finds violations and addresses them in a timely manner. Enforcement should begin as soon as a violation is brought to the attention of the Board or the Property Manager. All similar violations should also be addressed. With swift and observant action, the likelihood of violations persisting without enforcement is greatly reduced. As a result, the chances of facing a selective enforcement defense will diminish.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Marnie Dale Ragan, Esq. & Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.
©2004 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.
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