Q: My homeowners association inconsistently enforces its rules. Rules often overlooked include bans regarding permissible animals and owning chickens on the property – none of which have been properly enforced. The association issued a new owner a violation notice, even though other homeowners have been keeping chickens. Does this set a precedent for how these rules will be enforced in the future? How can the association ensure that it equally applies its rules to everyone? (P.K., via e-mail)
A: The failure of a homeowners’ association to enforce a covenant or rule of the governing documents creates an “affirmative defense” in a lawsuit, often referred to as “selective enforcement.” This defense and a related affirmative defense known as “waiver” are often raised in these cases.
In general, the courts have held that when an association fails to enforce a covenant or rule, other owners observe that and are lulled into the sense that they can do so too. Although an oversimplification, the owner’s reliance on the association’s failure to enforce creates an “estoppel,” which means that it is inequitable to arbitrarily one day decide to start enforcing a covenant or rule.
The usual approach to these situations is to legally “draw a line in the sand.” The board would adopt a resolution “grandfathering” existing violations and giving all owners notice that the covenant or rule will be prospectively enforced.
This approach is based on a 1985 appeals court case called Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So. 2d 29 (Fla. 3rd DCA 1985). In that case, the governing documents prohibited owners from enclosing their balconies. After approximately half of the units had done so, and due to potential code violations, the association notified all owners that no further enclosures would be permitted.
The company that owned the unit, called Chattel Shipping and Investment, enclosed their balcony. In the lawsuit that followed, the owner raised selective enforcement and related affirmative defenses. In finding for the association, the appeals court ruled that the owner had not been lulled into a false sense of security due to the association’s past laxity since every owner was given notice that any future violations would be pursued by the association, which is exactly what they did.
In your community, the board and its legal counsel need to review what the actual covenant or rule is, whether it is still desirable for the community (and if not, it should be amended out), and determine where the “line in the sand” has been or should be drawn.
Q: Can a board member of our condominium association, which consists of five elected board members, vote for themselves if nominated and seconded for an officer role? If none of the elected members are willing to take on the role of vice president, can an officer simultaneously hold more than one officer role? We are facing a situation where no one wants to be vice president, while our president is open to handling both roles. (P.N., via e-mail)
A: Every director or other person nominated to a board office can vote for themselves. Further, the law does not require a second for officer nominations.
Section 718.112(2)(a)(1) of the Florida Condominium Act provides that a condominium association’s bylaws must outline the form of administration, titles, powers, duties, and manner of selection of the officers. The statute also states that absent of a provision in the bylaws to the contrary, the board shall have a president, secretary, and treasurer, whose duties are as customarily performed by officers of corporations.
An officer may simultaneously hold more than one office in a corporation, as stated in Section 617.0840(4) of the Florida Not For Profit Corporation Act, which applies to the majority of condominium associations. An association’s bylaws may prohibit officers from holding multiple offices. For example, it is common to see bylaws that prohibit the president from serving as the corporate secretary.
It would make little sense for the president to also serve as vice president. The primary purpose of a corporate vice president is to act in the president’s stead in the event of the president’s absence or disability.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.