Today, I’d like to discuss something called covenant enforcement. Covenant enforcement is when an association must enforce the rules, regulations and restrictive covenants that are contained in an association’s declaration, whether it's a declaration of condominium or a declaration of covenants and restrictions – and there are many ways of doing so.
However, one of the biggest complaints that I've heard over the years is that associations have no teeth to enforce their documents, which is not true. Associations do have teeth – they do have the ability to enforce. The issue primarily is being willing to do what it takes to enforce the documents. Avenues to take include fining, suspending usage rights or potentially suspending voting rights. In extreme cases, you're talking about going to mandatory mediation, which is now required under the homeowner's association statute, Section 720.311 of the Florida Statutes. It's also one of your options under the condominium statute, Section 718.1255. So, you do have some options for covenant enforcement.
What we always need to be mindful of when enforcing an association’s rules is that everybody must be treated the same under similar circumstances. You don't want to be in a position where you are trying to enforce your rules and regulations against a unit owner or an occupant, and they raise a defense of selective enforcement. Selective enforcement means that you have enforced the same covenant against one person but not another under similar circumstances. We always must compare apples to apples and oranges to oranges.
Other defenses include waiver and estoppel (which are really two sides of the same coin). For example, if approval was obtained for an architectural change, and the owner expended money and time and contractors in getting the work done, the association can’t come back and change its mind later. The approval has already been relied upon. We never want these kinds of valid defenses to be able to be raised, so we need to be mindful of what we're doing and how we're doing it. We always need to make sure that we're even handed, that we're consistent, and that we're always treating the same situations in a like manner.
Michael E. Chapnick is a Florida Bar Board Certified Specialist in Condominium and Planned Unit Development Law. Mr. Chapnick has focused his entire practice on representing community associations. Mr. Chapnick has advised clients on all aspects of cluster housing operation, including day-to-day operational issues, collection and lien foreclosures, turnover issues, document interpretation and amendments, permissible restrictions on the placement of satellite dishes in community associations, qualification for the Housing for Older Persons exemption to the Fair Housing Amendments Act of 1988, and maintaining compliance with the anti-discrimination provisions of the Americans with Disabilities and Fair Housing Acts. Learn more including how to work with him here.
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