“Selective enforcement” is a defense to an action by an Association to enforce a restriction against one owner where it has not acted to enforce it against other owners. The defense is shown where a party demonstrates there are substantially similar violations of which the association has notice but had not acted to correct. One arbitrator at the Division of Condominiums wrote: “Selective enforcement involves the failure of an association to enforce the condominium documents in other instances bearing sufficient similarity to the instant case to warrant the conclusion that it is discriminatory, unfair, or unequal to permit the association to enforce the restriction in the present case.”
For example, if many owners have kept large dogs for many years in violation of a weight restriction without action to remove them, the association could probably not force the owners to remove them. However, the right to enforce the restriction is not lost to the association forever. The association can issue “grandfather status” to those existing violations and send a written notice to the entire community that no new violations will be condoned thereafter. This way, all owners will be on notice that they cannot commit the same violation of the restriction that others have already committed. Being on notice of the intent to enforce the restriction prospectively, new violators will have no right to complain when the association starts legal action against them.
By the way, actions to remove a pet is one of the many types of disputes between condominium associations and unit owners that must be submitted to non-binding arbitration in the Division of Florida Condominiums, Timeshares and Mobile Homes.
As always, you should consult with an experienced attorney about your specific case.
DISCLAIMER: THE FOREGOING ARTICLE IS NOT LEGAL ADVICE AND IS FOR INFORMATION PURPOSES ONLY. YOUR READING OF THIS ARTICLE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP WHATSOEVER. IF YOU ARE CONSIDERING ANY ACTION WITH LEGAL CONSEQUENCES, YOU SHOULD FIRST CONSULT WITH AN ATTORNEY OF YOUR CHOOSING.