Association Rights To Enforce Restrictions Versus Claims Of Selective Enforcement And Waiver/Estoppel – February 22, 2017

Dated: February 22 nd, 2017

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Cuevas, Garcia & Torres, P.A. .

Vantage Property Title Company.

Andrew Cuevas, Esq. – President
E-mail: [email protected].

Tel: (305) 461-9500
Fax: (786)362-7127


Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company. Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Corporate Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company. If you have any questions regarding this article or any other questions, you may contact Mr. Cuevas at (305) 461-9500 or via e-mail at [email protected]. If you are interested in reading previous newsletters, please visit, select the icon for Newsletters , and then choose the area of law you are interested in.

Association Rights To Enforce Restrictions Versus Claims Of Selective Enforcement And Waiver/Estoppel

A frequent question asked of us in representing Association Boards is if their decisions in response to unit owner actions need to be consistent in order to avoid claims of selective enforcement or whether through past actions or inactions the Board has now waived its right to enforce certain restrictions provided for in their association documents. Determining who has the burden of proof is also another issue. Normally one would think that it is the Association which is seeking to enforce a restriction is the party who needs to prove their case, but when a unit owner presents a defense of selective enforcement it is the unit owner claiming such defense who has the burden of proof – and this may very well be the most important issue of the dispute. A recent decision of the Third District Court of Appeals narrowed two significant defenses to enforcement actions, selective enforcement and waiver/estoppel in Laguna Tropical, a Condominium Association, Inc. v. Barnave, Case No. 3D16-1531 (Fla. 3d DCA, January 25, 2017) .

There were two restrictions in the declaration of condominium that were addressed by the court:

  1. A unit owner from altering, modifying or replacing the interior of a unit without the prior consent of the Association’s Board of Directors; and
  2. A noise provision that stated “[u]nless expressly permitted in writing by the Association, no floor covering shall be installed in the units other than any carpeting or other floor covering installed by the Developer. In any event, each unit owner shall have the duty of causing there to be placed underneath such floor covering, so as to be beneath such floor covering and the concrete slab, generally accepted and approved materials for diminution of noise and sound, so that the flooring shall be adequately soundproof.

In this association there were 94 total units, where 72 units were first and second floor units, and the other 22 units were divided by 11 downstairs units and 11 upstairs units. As could be anticipated, a second floor unit owner replaced their carpeting with laminated flooring. A little while later the downstairs unit owner complained about the noise. The Association then sought injunctive relieve against the upstairs owner and tenant. The upstairs owner prevailed at trial and the Association appealed.

The court commenced by holding that the upstairs unit owner who had installed the floor bore the burden of proof for the defense of selective enforcement and the defense of waiver or estoppel. It was argued that other unit owners had wood floors and that no complaints were made against them, but it is clear that first floor unit owners hardwood floor would not bother anybody, and for the two story units we would assume that a unit owner would not complain against himself. Therefore, due to the layout of the building, these restrictions presumably would apply only to 11 out of the 94 units.

The Court correctly focused on complaints actually made to the Association. The flooring restriction “is plainly intended to avoid noise complaints.” The Association enforced the noise rule when there was a complaint by a downstairs owner. Because there were no other complaints that were not acted upon, the apparent existence of hard flooring that did not generate a complaint did not constitute selective enforcement!

Concerning the waiver or estoppel argument, the court held that the president’s communications to the unit owner could not constitute an alteration of flooring approval. The declaration required written approval by the board of directors, not one of the officers.

The final judgment was reversed and remanded for “enforcement of the flooring restrictions as sought by the Association.”

This decision is important because it reinforces the notion that owners have to prove their defenses. Substantively, when a restriction is intended to protect neighboring owners from nuisances such as noise, it appears that if there is no complaint then the Association’s failure to enforce does not automatically create a selective enforcement defense. In our opinion is seems that this court decision may be limited to restrictions protecting others, perhaps not applying to general restrictions that impact the community such as appearance restrictions.

This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice. Associations who seek to determine their rights pursuant to selective enforcement and waiver/estoppel claims should consult with legal counsel. This Newsletter is for informational purposes only and should not be relied upon as a legal opinion.