CONNECT: Derrick Maginness, Phil Hammersley and Erik Hanson of
Norton, Hammersley, Lopez & Skokos, P.A. | 1819 Main Street, Sarasota, FL 34236 | 941-954-4691
MAY 2019 | SARASOTA SCENE 37
“The rules” is shorthand for the framework within which
residents in condo and homeowners associations agree to
live. These generally include the governing documents of the
association, commonly consisting of the community’s articles of
incorporation, bylaws and declaration of covenants, conditions
and restrictions along with rules and regulations. They are
designed to protect property values, and an association has
an obligation to enforce them. Homeowners can sue boards
to require enforcement.
“Issues arise within associations when the board of
directors has not been enforcing certain restrictions. However,
even when restrictions have not been enforced, there is a
way they can get back in the game and enforce them moving
forward,” said attorney Philip Hammersley, shareholder of
Norton, Hammersley, Lopez and Skokos, a Sarasota law firm
concentrating in business, tax, real estate, trial practice, dispute
resolution and community association law.
“The reason this issue is important right now is that we are
seeing a lot of turnover on boards with new members coming
on. These boards must decide how to enforce restrictions, but
still have a pleasant community where people want to live,”
said attorney Derrick Maginness. This is a fine line to walk
and, for a variety of reasons, boards sometimes elect to allow
exceptions to the rules for particular individuals or overlook
violations.
The downside to this approach is that not enforcing a
particular restriction with all homeowners can affect whether
it can be applied in other cases. This inconsistent application
of rules allows homeowners to raise a defense of selective
enforcement should the association pursue a legal remedy.
“One way an association may successfully overcome a selective
enforcement defense by an owner is to contend that the owner’s
violation is not comparable to previous violations that were
permitted,” said attorney Erik Hanson, citing an arbitration
case from 1994. In that arbitration, the association previously
allowed a homeowner to have a parakeet despite a no-pets
restriction. When a new owner bought a home and wanted
to keep a dog, the association sought to enforce the no-pets
restriction, and the owner raised the defense of selective
enforcement, relying upon the previous approval for a parakeet.
The arbitration panel sided with the association, holding that
a dog is substantially different from a bird because they are
indoor pets Hanson said.
Fortunately, it is simple to reinstate enforcement of a
restriction. The board communicates to homeowners that
it intends to begin enforcement of that restriction by a
specific date. It can grandfather existing violations or allow
sufficient time for homeowners to bring their properties
into compliance. The courts upheld this procedure in where
many homeowners had enclosed balconies without obtaining
required association approvals. The association notified
owners that it would bar any future enclosures and order
removal of those built without approval moving forward.
Subsequent to the notice being delivered to the members,
Chattel Shipping enclosed its balcony without permission.
The association’s demand for removal was upheld because
the owner installed the enclosure after the association’s
announcement of the change.
Board members also should ensure they are correctly
following procedures outlined in the documents. In one
instance, a board president emailed approval for a homeowner
to install hard flooring despite prohibitions in the documents
due to noise concerns for downstairs residents. An appeals
court ruled the flooring had to be removed because the
documents required written approval of the board rather
than an officer. It also denied the homeowner’s claim of
selective enforcement. Although hard flooring had been
permitted in other units, the court ruled those units were
significantly different because they did not have downstairs
neighbors.
Homebuyers also need to be vigilant. “It is important,
when purchasing in a deed restricted community, to be sure
there are no restrictions violations of any kind or you could
become liable for those violations. A properly drafted estoppel
letter can help provide protection,” Maginness said. “One
homebuyer asked if there was any open violation of rule or
regulation noticed in the association official records. The
estoppel letter stated that there were none noticed in the
official records. However, that doesn’t necessarily mean there
aren’t violations at the property. Consulting an attorney
can help assure you are protected.”
Associations may lose rights to enforce restrictions in
other ways than through selective enforcement, including
one that is currently developing. The Florida House of
Representatives is considering HB 987, which asserts
homeowners have a right to use their properties as vacation
rentals and preempts local regulation of rentals, giving
that power to the state. “This could have implications
for associations’ ability to enforce restrictions on rentals,
which are in place to protect residents from the disruptions
and nuisance that can go along with short term rentals,”
Hammersley said. “We stay on top of any changes to the
law that may affect our clients so they have the opportunity
to respond proactively.”