Selective Enforcement
Here are 3 articles presented by HOA Florida Lawyers that fully explain the liability Sugarhill faces if the Selective Enforcement law is ignored or not understood. Keep in mind as we took over the board there were 2 legal issues underway and one set of lawyers were preparing a selective enforcement defense that, should they have prevailed, the outcome for the association would have been to foot the entire bill. By all the evidence they would have prevailed against the association. Please read the following articles to understand selective enforcement: (When you select one of the articles below then use your back button to return here you will need to select the "Legal Issues" button above to get back.)
The first thing to acknowledge is the fact there are a huge number of covenant violations that existed in Sugarhill as of 10-1-19. Our board has not allowed new violations but we have to allow the old. One long time resident who was heavily involved in a covenant revision told us they counted over 40 uncorrected violations and that was 10 years ago.
So what type of environment does this create for the board vs. neighbors, neighbors vs. neighbors? Words that come to mind are mistrust, distrust, doubt, suspicion, wariness, misgiving, reservations, qualm, hesitancy, caution, uncertainty, skepticism, and apprehension both for board members and neighbors. Not a pleasant environment.
What are boards to do in this situation? In the case of Sugarhill the past boards have enforced the bylaws and covenants in an irreverent manner all the way to a capriciously inconsistent way and finally to the point of hiring a management company to do the dirty work with no regard to the legal situation created by the selective enforcement potential. None of these situations has ever created a satisfactory legal outcome in Sugarhill that was amiable to all residents.
Regarding enforcement the Einstein quote "Insanity: doing the same thing over and over again and expecting different results." comes to mind. The previous boards did not understand the legal vulnerability that violation (or even ignorant violation) of the selective enforcement law could cause to the Association.
Let’s itemize the Sugarhill history:
- Strict control during initial start and build phase of the development.
- Strict control of covenants leads to board initiated major lawsuit costing the Association more than 1 years income.
- Softening of control as a reaction to the lawsuit.
- Many violations overlooked selectively.
- Beginning of return to strict control with now numerous violations existing throughout.
- Attempts at strict control now become capricious and random.
- The vitriolic attempts at control are not very successful yet create a hostile environment.
- The board decides control can only come from an outside management company using the phrase “neighbors shouldn’t be suing neighbors”. An amazing fallacy since the board and the Association are always liable.
After the complete removal of the board for reasons of “Selective Enforcement” and neighborhood objection to the hiring of an unwanted property management company, the new board has a new approach. The intent is to resolve these selective enforcement issues and attempt to stop new violations. Realizing there is nothing that can be done about the potential selective enforcement situation the goal is:
- Allow all existing violations to exist and extend to new approvals. This is the only way selective enforcement can be avoided.
- Require all approvals to not be out of current range of the covenants, but still allowing all previous violations to be approved with new submissions for approval thus avoiding selective enforcement problem.
- Require correction or correction-before-estoppel of all violations that were changed without approval, or were never approved. Unapproved changes or unapproved actions will be vulnerable to mandatory correction or correction-before-estoppel or any future approvals.
Why not just take the simple fix mentioned in one of the quoted articles? “The association must provide written notice to all members, informing them that on a certain future date the association will begin enforcing the restrictions once again”. Well, if the covenants had been written in a less vague and ambiguous form it wouldn’t be a problem. But as it stands in Sugarhill the covenants cause most of the issues because of their often conflicting or ill-defined nature. The only solution beyond what we are doing is to heavily revise the covenants to a clear concise document approved by the majority and leaving the vagueness and arbitrary esthetics out. Otherwise the above 3 items are our only legal choices.
