What condo boards can do often depends on what's reasonable


Q:  My condominium association just adopted a rules- and-regulations document outlining what owners can and cannot do. This is in addition to any items set forth in the original condominium documents. After passage of the new rules and regs, none have ever been enforced, even when a board member witnesses an infringement.

If the new rules and regs are not being uniformly enforced, are they still enforceable? It seems the board is going to pick the ones they want to enforce and ignore those it does not seem interested in pursuing. Can the board do that?

– DT, via email

A: Florida case law and arbitration decisions are replete with rulings on the issue of the enforceability of condominium restrictions.

As you have pointed out, the recorded condominium documents contain certain restrictions, which are often supplemented by rules and regulations adopted by the board.

Established law provides a framework for determining whether a board-made rule is enforceable.

First, the recorded condominium documents must specifically authorize the board to adopt rules. Then, the rule adopted must be within the authority granted to the board.

For instance, if the board only has authority to adopt rules affecting the use of the common elements, it cannot adopt a rule governing the use of the units, such as a rental restriction or a pet ban. Also, the rule must not contravene an express provision of the recorded condominium documents or any right that can be "reasonably inferred" from the documents.

You will notice that I referred to the concept of "reasonableness." In legal disputes, the issue of reasonableness is frequently litigated. In fact, if you wanted to print out all the reported decisions dealing with that issue, you would be killing at least a few forests. What does "reasonable" mean anyway?

A provision of the declaration of condominium as originally recorded or as subsequently amended by proper vote of the membership cannot be enforced if it is illegal (such as a restriction, say, on minority ownership or occupancy.) However, such provision does not have to be "reasonable" to be enforceable. A board-adopted rule, though, does have to meet a "reasonableness" standard, and, as you might imagine, often no bright-line test exists for determining whether something is reasonable.

Ultimately, the trier of fact, i.e. the judge, jury or arbitrator, makes the call as to what is reasonable. This reasonableness standard exists because, when the board makes a rule, the owners were not on notice of the restriction when they bought their units — unlike the recorded condominium documents that existed then — nor did they get to vote on the change that affects their use of the condominium property.

A condominium association's enforcement action against an owner or other resident for an alleged rule violation is an equitable as well as a legal one.

A virtual plethora of defenses can be raised. A board can be challenged as to whether proper notice was given of the rule's adoption, whether the board had the authority to adopt the rule, whether the rule itself is "reasonable" and whether the rule has been uniformly enforced.

Equitable principles, such as selective enforcement, estoppel, laches and "unclean hands," often come into play.

Let me give you an example.

The recorded declaration of condominium states that the owner of each unit can have one small pet. "Small" is not defined and the documents do not expressly give the board the authority to determine what constitutes "small."

The board adopts a rule that defines small as to not exceed 20 pounds. The board then brings an enforcement action against me because my poodle, Fifi, weighs in at 27 pounds. Assuming I consider Fifi a member of my family and am unwilling to voluntarily part with her, what defenses do I have?

First, I am going to want to determine the extent of the board's authority to make rules as contained in the recorded documents.

Does the board have the authority to make rules regarding unit use? Were the special notice requirements for the adoption of rules regarding unit use followed? Was the rule adopted after I brought Fifi home so that she should be "grandfathered?" Can I argue that defining "small" to be not more than 20 pounds is "unreasonable?" What if I know or find out that my neighbor or perhaps even the board president is harboring an even bigger dog with impunity?

You better believe that I would "kitchen sink" my defense and make all of those arguments and more. And guess what? The association, as the party seeking to enforce the rule, has the burden of proof in the case.

So, enforcement cases can prove difficult for associations to win.

Throw in, too, that some judges really hate hearing these cases. The disputes may seem petty, but the law that applies to them is complex. The prevailing party in these cases is often entitled to a recovery of "reasonable" attorney's fees and costs. Do you think that the parties then argue that reasonableness standard?

You betcha.

One issue that you raised is that of boards adopting a whole set of rules and then only enforcing some of them.

Using the above pet example, what happens if the board elects only to enforce the weight limitation against dogs, but not against cats? Does that mean it loses the right to enforce the restriction against dog owners? Not really.

As long as the specific restriction is being uniformly enforced, it may survive a selective enforcement challenge, even if other restrictions are being blatantly ignored.

I am frequently asked what happens to restrictions that have been ignored in the past (usually by a new board that wants to clean house). Is the board's enforcement power lost forever? Not necessarily.

A good rule of thumb is that, if restrictions have gone unenforced for more than two years, they may become legally unenforceable as they apply to existing violations but can still be revived for future enforcement.

Reviving a restriction, be it a rule or a provision of the recorded documents, means that the board takes official action evidencing an intent to enforce the restriction that was previously ignored.

Notice of the board's action must be delivered to all owners. Then, the board may begin or resume enforcement.

What happens to violations that occurred between the adoption of the restriction and the action to revive it? Usually, those nonconformities have to be grandfathered in until there is a change in circumstances, such as the sale or transfer of the property, or, again using the pet example, until the pet dies or is otherwise permanently removed from the property.

My advice to associations is to always make sure all i's are dotted and t's crossed when it comes to enforcement issues. Don't play favorites, and be uniform in application.

Regularly update the restrictions for internal consistency as well as conformance with current law.

And if there is a restriction that has never been enforced and no groundswell for its enforcement exists, take the necessary steps to delete it.

Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.

Tamela Eady

Tamela Eady is a Florida Bar board-certified real estate attorney with more than 25 years experience, concentrating her practice on community association and real estate legal matters. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
Last modified: July 6, 2013
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