Associations May Enforce Restrictions Despite History of Non-Enforcement

September 16th, 2016

Posted in Business & Corporate Law

In a community association, consistency plays a major role in the enforcement of its governing documents.  Although Board members have a fiduciary duty to enforce an association’s governing documents, this can be particularly challenging where regular turnover of the Board occurs.  Newly elected Board members sometimes find themselves trying to enforce certain restrictions in the governing documents where previous Boards have failed—usually due to inadvertence.  This poses a problem because the failure of a Board to enforce a provision of the governing documents against owners gives rise to certain defenses (i.e., selective enforcement) if the Board attempts to enforce the same provision in the future.

The good news is that a Florida court decision stands for the proposition that Boards may correct this particular situation by providing written notice to all members informing them that on a certain future date, the association will begin enforcing the restriction once again.  See Chattel Shipping & Inv., Inc. v. Brickell Place Condo. Ass’n, 481 So. 2d 29 (Fla. 3d DCA 1985) (court found that selective enforcement was not a valid defense when association notified membership it would not take action with respect to existing violation but would not permit any subsequent violation).  Essentially, in providing the membership with a “Chattel Shipping” letter, the association is drawing a line in the sand and placing its members on notice that notwithstanding any prior lack of enforcement, future violations will be enforced consistently and uniformly.

An association should consult with legal counsel if it has concerns regarding previous enforcement of certain provisions of its governing documents and whether a “Chattel Shipping” may be necessary.

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