Most association boards can decide when they wish to pursue an owner who has violated the community's restrictions. However, it is the rare board that undertakes a thorough analysis before sending out those demand letters to determine if the owner can use any affirmative legal defenses to successfully challenge the association's enforcement efforts.
Naturally, enforcement decisions should not be made in a vacuum. Association boards are well advised to consult with their association attorney to determine (a) if they have the authority to enforce the restriction they wish to enforce and (b) if there is any current or previous situation which would make such enforcement challenging at best and impossible at worst.
Let's look at some of the affirmative defenses which might derail your board's enforcement efforts.
Laches-this legal doctrine denies claims in which the person or entity asserting the right has delayed for a considerable amount of time in asserting that right or claim and such delay could prejudice the adverse party. If a board knew an owner had erected a shed in violation of the covenants and restrictions but waited several years to pursue enforcement, laches may be raised as an affirmative defense.
Equitable Estoppel-this affirmative defense comes into play when a court will not grant legal relief to a party who has not acted fairly. For example, if an association improperly assigned parking spaces and then attempts to enforce the parking space restriction against an association member, the defense of equitable estoppel could be used. This defense brings to mind the legal maxim-"he who seeks equity, must do equity."
Waiver-in this affirmative defense, the association would have voluntarily surrendered a known right. That could be a right which derives from the statutes or from the association's governing documents. An example of waiver would be a board which fails to make an approval decision on an application to purchase within the time period set forth in the governing documents.
Selective Enforcement-An owner can use the affirmative defense of selective enforcement to prove that the association is enforcing the restrictions in an arbitrary manner against some owners and not others. Unfortunately, many owners rely too heavily on this particular affirmative defense to challenge all attempts by their association to enforce the rules. For example, if an association fails to pursue an owner for a mailbox violation that does not necessarily create a selective enforcement defense by an owner who is being pursued for a pet violation. Florida courts have held that a successful selective enforcement argument in the association setting requires an "apples to apples" scenario.
If you are a board member attempting to enforce your use restrictions, please speak with experienced association counsel to ensure that a possible affirmative defense is not lurking out there. If you are an owner who is being pursued for a violation, ask yourself if any of the foregoing defenses might apply to your situation.