When faced with an enforcement action by a community association, owners often argue the association is selectively enforcing the covenants. Some also argue the association waived its right to enforce because the association knew about the violation for a substantial period of time, but failed to timely enforce against them or other owners. Recently, the Third District Court of Appeals (“Third DCA”) addressed these arguments in Laguna Tropical, a Condominium Association, Inc. v. Barnave, Case No. 3D16–1531 (Fla. 3d DCA, January 25, 2017), when it rejected an owner’s claim that the condominium association was selectively enforcing a restriction against him.
The condominium contained single story units and two-story units. The dispute in Laguna Tropical arose when the owner of the second-floor unit failed to sound-proof the laminate flooring he installed because the previous occupant’s dog soiled the carpet. Predictably, the downstairs unit owner complained to the condominium association about the noise caused by the new flooring.
In response to the complaint, the condominium association determined the upstairs unit owner did not seek permission from the association to install the laminate flooring and sought its removal. Having failed to remove the flooring, the association filed an action to enforce a provision in the covenants that prohibited any alteration to a unit’s flooring without the Association’s prior written permission. The restriction also provided that all flooring needed soundproofing material. In defense, the unit owner alleged the association was selectively enforcing the rule against him since other units had laminate flooring on the second floor.
On appeal from a trial verdict in favor of the unit owner, the Third DCA held the unit owner carries the burden of proof as to his selective enforcement and waiver defenses. The Court then noted the condominium was comprised of 94 units, 11 of which were only upstairs units, 11 were only downstairs units, and the balance contained first and second floor units.
The Court struck the owner’s defense of selective enforcement because although other units had laminate flooring, those were units that contained two stories within the same unit, and, consequently, there were no downstairs unit owners who would be affected by the noise. The Court concluded the restriction “is plainly intended to avoid noise complaints,” and since the association enforced the noise rule when there was a complaint by a downstairs owner there was no selective enforcement. Similarly, the Court found that since hard flooring installed in downstairs only units would not generate flooring complaints, it was not selective enforcement to allow hard flooring in those units.
The owner’s second defense in the case was that she had permission from an officer of the association, via email, to install laminate flooring, thus the association waived or was estopped from enforcing the restriction. The owner testified that her computer crashed and she could not produce the actual email. However, the covenants specifically state that permission must be obtained from the board of directors, not an officer. Therefore, the Court ruled that the covenants were enforceable as permission was not obtained by the board and an oral communication would not be accepted as a defense by the court, since the email could not be produced.
This ruling is an important decision for community associations. First, it supports the rule that an association must be on notice of a violation before its duty to enforce arises. Second, it also reinforces the rule that you must compare “apples to apples” when analyzing selective enforcement defenses. Finally, it is important to remember that one member of the board does not have the authority to bind an association where express written permission from the association is required.