|What Selective Enforcement Means For Tenants
If you are a property manager, you are most likely already familiar with the term “selective enforcement.” But for those who aren’t, it simply refers to the event when a community association enforces its rules and regulations on an owner, only to have them fire back with an example of a neighbor also in violation of the rules, asking you why you aren’t coming down on them with a violation letter. This claim by the defending owner is implying that the association is not enforcing their restrictions and rules on others, but only them. And if this issue goes to litigation, the defending-owner then has the burden to their claim of selective enforcement defense.
One common mistake in proving this defensive is that the owner doesn’t make an apples-to-apples comparison about their claim. And this doesn’t hold up well in court.
One such case highlights this claim. In the January 25, 2017 decision of Florida’s Third District Court of Appeal in the case of Laguna Tropical, A Condominium Association, Inc. v. Barnave, proper enforcement of the association’s restrictions won over the tenant’s claim of selective enforcement.
This case describes a unit owner who wanted to replace her carpet floors with tile after a previous owner moved out. The owner leased her upstairs unit in a two-story condominium to a pet owner, who damaged the carpet. She failed to get a written consent of the association board of directors before replacing the carpet with tile, which was prohibited because carpet was the only flooring choice for upstairs units since they aided in the noise and sound control for those below. When the tenant downstairs complained, the association sought enforcement because of the restrictions of tile against the owner and the new tenant, which resulted in a lawsuit brought on by the association.
At trail, the owner argued that the association selectively enforced this flooring restriction on only 11 of the property’s 94 units. But the association argued that they could only enforce this because those 11 units were all the ones upstairs, where improperly insulated floors would be a noise issue. Based on common sense by the association, the court reversed the trail court’s decision and favored with the association.