A parent, manager or referee who only enforced the rules sometimes – or for certain players – would be accused of playing favorites. A
condominium board that did the same could face penalties for selective enforcement, unless they can show that different situations really do require a different approach.
For example, a board that has previously ignored violations of a rule against keeping pets – in instances where unit owners have owned goldfish, cats, and lapdogs – may feel compelled to take action when they see a unit owner walking a large, aggressive dog in the common areas. Can the board’s previous failures to enforce the “no pets” restriction prevent them from enforcing the action against the pit bull owner?
Some
jurisdictions have recognized a unit owner’s defense of “selective
enforcement”, holding that condominium associations, which have previously
failed to enforce certain restrictions, have waived their ability to enforce
those rules.
In White Egret Condominium v. Frank, 379 So.2d 346 (Fla. 1980), the Florida Supreme Court refused to enforce an age restriction – that the Court found otherwise to be related to a lawful objective – because it was being enforced in a selective and arbitrary manner by the condominium association. The condominium association sought to enforce a restriction, which did not allow any children under twelve years of age to reside on the premises, against a unit owner at the condominium. Notably, six other children under the age of twelve were residents of the condominium. The Florida Supreme Court held that “this constituted unequal and arbitrary enforcement of the restriction…and the [condominium association] is estopped from selectively enforcing the age restriction.”
In another Florida case – Prisco v. Forest Villas Condo. Apartments, Inc., 847 So.2d 1012 (Fla. Dist. Ct. App. 2003) – the court similarly recognized a selective enforcement defense in the context of a “no pets” restriction. The condominium association had filed a complaint against a unit owner, seeking to enjoin her from keeping a dog in her unit in violation of the condominium association’s pet restriction. The unit owner raised a defense of selective enforcement, noting that other unit owners kept numerous cats, as well as two dogs, in their respective condominium units – yet the association never enforced the restrictions against these owners. The court agreed that the association was selectively enforcing the pet restriction against the unit owner and reversed a summary judgment decision that the lower court had entered in favor of the association.
While there have been no reported appellate court decisions concerning this issue in Massachusetts, the defense of selective enforcement was addressed in a Superior Court decision in the matter of Board of Trustees of Pine Brook East Condominium Trust v. Thorley, Norfolk Superior Court, Civil Action No. 08-1259. The civil action was brought by a condominium board seeking to have a unit owner’s pit bull dog removed from the condominium. The condominium’s master deed provided that “[n]o pets shall be kept in any unit or under any circumstances except as provided in the rules and regulations of the Condominium Trust.” The condominium’s rules and regulations further provided that “[c]ustomary house pets may be kept in any unit or in the common elements with the prior written permission of the board of trustees, provided such pets do not create a nuisance and that all dogs must be on leash and can be walked to the rear of the buildings.” The defendant kept her pit bull, Malu, in her unit without ever having received written permission from the condominium trust.
The defendant contended that the condominium board had waived its ability to enforce the rule against her because the board allowed other unit owners to keep pets in their units without ever receiving written permission from the board. Indeed, approximately fourteen other unit owners at the condominium had dogs, and the great majority of these unit owners had never received written permission from the condominium board to keep their dogs in their units. None of these dogs, however, were pit bulls.
After a two-day trial, the Court found in favor of the condominium board, ordering that the defendant was enjoined permanently from keeping her dog in her unit or elsewhere on the premises of the condominium. The Hon. Thomas A. Connors reasoned as follows:
The defendant is correct that the trial evidence does reflect a lack of uniformity in the Board’s requiring exclusion of those pets for whom written consent has not been secured by the unit owner. However, this fact does not preordain that the Board’s action in seeking to enforce the restriction with respect to Malu is invalid, on principles of waiver or otherwise. Here, the Board concluded after having received a complaint from a unit owner that the presence of a dog of Malu’s breed would not be given its permission. This was a judgment the Board was entitled to make, based upon the members’ appraisal of circumstances relating to the characteristics of the dog’s breed.
Additionally, the Court awarded the board $37,290 for costs and attorneys’ fees incurred in securing the defendant’s compliance with the condominium documents.
At least one other jurisdiction has similarly held that a party’s failure to object to a minor violation of a covenant contained in a condominium’s master deed and by-laws does not result in waiver of its right to object to a subsequent and more substantial violation.
The South Carolina Court of Appeals, in the matter of Kneale v. Bonds, 317 S.C. 262 (Ct. App. 1994), found that the acquiescence to relatively minor unit alterations that were made by unit owners in violation of the condominium documents did not serve as a waiver of the right to enforce covenants contained within the master deed and by-laws – relating to alterations or variations of the general or limited common areas – when those alterations would effectively change the character of the property.
Similarly, many jurisdictions have held that a failure to enforce against minor infractions of restrictive covenants does not constitute a waiver of the restriction, so as to estop enforcement restrictions against more egregious violations. For example, in Berry v. Paisley, 66 Ohio App.3d 77, (1990), owners of a boathouse contended that a restrictive covenant, which prohibited construction in certain circumstances, had been waived by the other boathouse owners in the subdivision, as they had failed to enforce the restriction in other instances where construction had been performed on certain boathouses. The Court ruled that the restriction had not been waived as the previous violations were de minimis (e.g., the installation of a television antenna), whereas the construction at issue would actually obstruct the channel that provided access to the bay.
Obviously, the best way for an association to avoid a unit owner’s defense of selective enforcement is to enforce the rules and regulations contained within the condominium’s governing documents in a diligent and consistent manner.
If there are rules and regulations that the board seems to be consistently ignoring, however, perhaps the rule should be amended or eliminated. For example, perhaps a strict “no pets” policy could be tailored to allow for less threatening animals, while prohibiting large breed dogs (i.e., pets that could impact an association’s ability to secure insurance coverage). An appropriately revised restriction may better reflect the evolved attitudes of the condominium’s demographic and will therefore presumably be more tenable.
In any event, if a board is presented with a unit owner’s selective enforcement defense, it can take some solace in the fact that the limited jurisprudence of the Commonwealth – albeit unsettled – reflects an understanding that a board, which has previously ignored relatively minor transgressions, will not be prevented from using its judgment to enforce restrictions in response to more egregious violations.
A principal in the Boston
and Quincy-based law firm of Moriarty, Troyer & Malloy LLC, Dave specializes
in complex civil litigation at both the trial and appellate levels. He has
extensive experience in the area of construction litigation. Dave’s practice is
focused on construction, real estate, and condominium matters. His clients
include condominium associations, real estate developers, general contractors,
subcontractors, and individuals. Dave’s
email address is drogers@lawmtm.com
