Florida Law Question

Try this,
http://aboutfloridalaw.com/2012/04/17/selective-enforcement-defense-against-florida-condo-boards-and-community-associations-hoas-condo-associations-playing-favorites-and-florida-home-owners-fight-back/

Oh yes, selective enforcement is against Florida law.

Thought that is what I posted Peter???

An essential element of a claim of selective enforcement is that the person or entity doing the enforcement is motivated by some personal animosity against the other.

I have to say that "Jay" is not nearly as literate as Peter.

Try this, I'm sure others could be found by a Google search.

http://scholar.google.com/scholar_case?case=12456923602230397213&q=Prisco+v.+Forest+Villas+Condominium+Apartments,+Inc&hl=en&as_sdt=2,44

Gregg

Melissa I'm sure the OP is thinking of items like getting a letter for having a dog over 30 pounds when they know personally of 4 others. Could be getting gigged for parking a boat, RV, etc in their drive way over the week-end when two board members do it all the time. Getting tickets for having two vehicles parked in the HOA common area while this is common practice for some owners. Maybe receiving a fine and an order to remove a fence exactly like several others in the community, etc, etc, etc,...........

When someone uses a selective enforcement defense, to my understanding (and I am not an attorney nor do I work in the legal profession), the following could happen in court:

1) The court rules that selective enforcement is not happening. You are in violation and must comply (what the Association hopes for).

2) The court rules that selective enforcement is happening. You are in violation and must comply (the 2nd best ruling for the Association).

3) The court rules that selective enforcement is happening. You are in violation but must only comply when the Board starts enforcement actions on all those you brought to the court as evidence (something nobody really wants but the member will take).

4) The court rules that selective enforcement is happening. Since the Association failed to enforce this violation on others (once they were aware of it), the covenant/rule has been abandoned and is now unenforceable. (what the member really wants).

Although selective enforcement can be a solid defense, it's still not a guarantee win.

By the way, we did not have a ARC, (Architectural Review Committee), in place for the entire year I was on the board. So there was no way to ask for approval, although it would have been denied. Just a small indication of how lax we had become in my HOA.

Wrong. You would have submitted your request to the Association. If the Board did not seat an architectural committee, then the Board would have had to reply to the request.

If you put your shed up without approval, then perhaps it wouldn't be selective enforcement. As the issue wouldn't be the shed itself but your failure to seek prior approval for the shed. Had you sought approval and it was turned down, then you would have had, in my opinion, a stronger case for selective enforcement.

If the issue went to court and I was on the jury, based on my experience and what you have posted, I would conclude that both sides were wrong. How that would work out would depend on the options available to the jury as instructed by the court.

One thing I noticed in reading FL 720 and FL 718 is that they are almost identical.

As I understand it, case law does not have to match apples to apples. What I mean is that a case used in a condominium dispute can also be used in an HOA dispute if it establishes precedent that is on point to the argument. The argument for selective enforcement (based on what I read in the article provided) is that enforcement can't be in an arbitrary manner.

Of course, I am not an attorney. I do not work in the legal profession. I can only base this advice on my experiences, any research I have done and what you have posted. If you are having an enforcement issue with your Association and you believe that selective enforcement is the defense you want to use, you should consult with a local attorney who would have access to your governing documents, all communications between you and the Association and have a much better understanding of FL law than I or other laypersons on the internet.

Kevin,

Kinda confused about the first part of your last paragraph:
"From my reading of the law, there is no requirement for the board to enforce the C&Rs equally,..."

Well I'm not sure what you mean by the requirement part. I understand that the BOD , in many cases, has discretion in which rules they wish to enforce; but those they choose to enforce, not do so equally?

There are risks if you fail to enforce rules consistently, such as claims of arbitrary enforcement, discrimination, or favoritism.

When the lack of enforcement becomes common, the association runs the risk that the restriction, rule, and/or regulation will be waived and is no longer be enforceable at all.

So if the board fails to enforce a rule against one member, but not another in a similar situation, the board may have waived its right to enforce that rule against any other members.

A board can’t enforce the rules in an arbitrary and capricious manner. This means if the board does not enforce a rule in one situation, it must allow all members in similar situations to disregard the rule.

Not lecturing you or saying you disagree with the above, just sayin'.

Cheers!

Not sure cause I read a lot from MANY sources, but I think I read about it here recently.

Google 'Laches".

In the Florida statues, can a director of a HOA serve as a chairperson on a committee?

Laurine,

Welcome to the forum. In the future please remember that it's best to start a new topic than to reactivate an old one.

As for your Question:

FL 720, section 305(2)(b), specifies that no "officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee" may serve on a committee that holds hearings for fines.

However, that is the only section I could find any limitation in. They can serve or chair any other committee (as the statutes are silent on that).

You did not say if you were in a condominium or not. Typically FL 718 has similar provisions as in FL 720, but you need to check to be sure.

Link to FL 718

Link to FL 720

RossW, just because you see sheds all around you does not mean that they did not submit an ARB request. That request could have been approved or ignored in which case, depending on the governing docs, not responding to an ARB request may give the owner permission to proceed with the modification. Do you know if any of that is true for your association? Also you would have to prove that the prior boards actually saw these sheds, and since most sheds are in the back yard it is certainly possible that prior boards did not look in back yards. Have you checked with anyone that would know the history to see what, if anything, has ever been discussed or decided about sheds?

I'm sorry, this thread was reactivated for the posting of spam.
There was another thread that was reactivated for a similar question.