Monday, July 21, 2014

Which affirmative defenses might derail your community's enforcement efforts?

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.


  1. An owner applied for exterior lighting changes (garage carriage lights)and we approved the application. Now he wants the post light fixture style to conform with the other fixtures. We denied this as we prefer the original style. All homes but one have the original style. Our regs do not cover specifics on post lights or uniformity with others. They state our requirement of approval to assure conformity with a home's architectural style(of which the new style admittedly does conform). How strong is our position to deny?

  2. If you are a FloridaHOA (and it certainly sounds like you are) your position is not all that strong without specific requirements pertaining to lighting in your published rules and regulations.

  3. If a condo owner had 2 pets for more than 10 years even tho the R & Rs say I and the boards never attempted to enforce the R & Rs, could "laches" be a raised as an affirmative defense?

  4. Laches could be used as could equitable estoppel and waiver. All is not lost though. New boards can decide to enforce rules and restrictions which have been long overlooked by their predecessors. They do need to "republish" those rules with the proper 14-day notice and subsequent notice to the membership after that board meeting where republication was approved. Please speak with your association attorney about how to handle this.

  5. Can we restrict a homeowner who wants to install raised poured-on concrete borders down the length of their driveway, if we don't like the method of construction, even if they are that different types of bordering in the community has been used down the driveways and around flowerbeds with different materials or methods? Our CC&R is silent on borders of any kind and we denied the ARC based on our perception of its appearance with the harmony of the community. Also, If they refuse to remove them, would it be easy to argue the case that we established the restriction during the review process?

  6. Our condo docs state that a family unit by definition is a husband and wife, an unmarried couple that can be considered live in companions and the children of the unmarried or married couple. A guest is considered a person who is visiting and is not a titled unit owner or an approved tenant and who would not be defined as part of the family unit. A guest according to our docs must be vetted if they remain in the unit beyond 30 days with our without the titled owner or approved tenant in residence. The declaration also states that there is no limitation on time of a family member visiting a titled owner or an approved tenant.

    I interpreted the Declaration to mean that a titled owner or an approved tenant can have his spouse or live in companion live in the unit without being considered a guest and without being vetted after 30 days. When my parents owned the unit my dad was the titled unit owner and my mother (his wife) lived in the unit for six months per year without being vetted.

    The Board of Directors has sent me a letter that if my approved tenant lives in my unit with his live in companion for more than 30 days with or without him present she will be asked to leave, unless she agrees to be vetted.

    If by the definition of the family unit, the live in companion is considered part of the family unit and not a guest, how can the association demand that she is vetted? If they are not vetting all other live in companions or spouses of approved tenants or of titled owners and if this rule is not stated in the condo docs is this not selective enforcement?

    I have communicated to the association that I believe they are practicing selective enforcement and that they should amend their Declaration to state that any spouse or live in companion of a titled owner or approved tenant will be considered a guest after 30 days if they remain in the unit with or without the titled owner or approved tenant.... and must be vetted. Right now I believe they have rental rules that are in conflict with the language of their docs....and I believe they place the association in liability for selective enforcement if the rental docs are not in compliance with the Declaration or visa versa.

  7. I live in an adult community in Allentown, N.J.08501 ( 4 Seasons). We are a planned community with a BOT ruling. Our homes are privately owned, but we have common elements, clubhouse, activities etc.
    The styles of houses are varied, sided on three sides, and facades of stone, brick, stucco or vinyl. My stucco façade is deteriorating rapidly due to weather and faulty installation. There is a strong possibility of mold growing over the 12 years it's been up. In speaking with professionals, repairing it with same material, which is not recommended for this area, would only cause problems to recur. The original builder had 400 of these homes fail,so he no longer offers stucco as an option.
    I would like to replace the façade with the same durable vinyl siding that is on the other three sides of the building. I would be using the identical materials and colors originally offered by the builder and which match my house. The finished product would be matching all other vinyl houses in our community.
    The Board is now telling me I can't do that because it would change the "harmony" of the community, even though there are vinyl sided houses throughout. This is not a cosmetic choice, but a reasonable and practical repair.
    To spend double the amount on redoing a faulty system with another faulty system sounds totally unreasonable to me. My problems would not be solved, but compounded--at double the expense.
    They have stalled on a final response for two months. I've attended meetings, shown them the research, presented logical briefs stating my case. but they keep "passing the buck" from one committee to another. In the meantime, winter is coming, a good chance mold is growing due to water seepage into the many cracks, and the proposals I've gotten are expiring--meaning prices are rising.
    I am a 77 year old widow in questionable health; I do not need the stress being placed on me by a group of unreasonable power hungry people with little or no experience in building matters. Now they want to include a resolution saying no materials other than the originals can be used on the exterior of our homes This certainly curtails change or improvements necessary in wear and tear on any home.
    What advice or comments do you have for this frustrated lady?
    Thank you

  8. Generally speaking, guest occupancy restrictions are intended to screen individuals in the exact situation you are describing. Unless the documents contain an exemption for the spouses or significant others of tenants when those spouses or significant others are not on the lease, then those individuals would be subject to screening or "vetting". If a tenant's spouse or significant other is not on the lease, the only hope of having him or her exempted from screened would depend on the specific wording of the guest occupancy restriction. I suggest you speak with your own attorney to determine whether or not the current language exempts the tenant's spouse or significant other from screening. Good luck.

  9. The question above regarding ARC decisions based on general aesthetic principles would be problematic if the community in question is located in Florida. Florida law requires architectural restrictions to be clearly spelled out in published guidelines and not left merely to the board's broad discretion in terms of aesthetics. If this community were located in Florida they would have a difficult if not impossible time in legally enforcing a border restriction which is not clearly spelled out in the governing documents or other published guidelines.