A recent decision by the Fourth District Court of Appeal has the potential to be misconstrued by community associations to mean that they can arbitrarily and selectively enforce their governing documents against members. In the case of Heath v. Bear Island Homeowners Association, Inc., the appellate court upheld the lower court's decision in favor of Bear Island Homeowners Association, noting that a clause in the association's Declaration of Covenants and Restrictions specifically stated that it was not required to seek enforcement of its declaration in connection with all violations.
Most community association attorneys, including those at our firm, counsel their clients to avoid acting arbitrarily in the enforcement of their rules and other governing documents because it could lead to effective legal defenses by owners challenging the association's enforcement actions. Associations are required to enforce their covenants equally against all owners, and the failure to do so may result in an owner claiming that the association has engaged in "selective enforcement." By enforcing its governing documents only against some owners, while allowing others to commit violations without fines or other sanctions being imposed, an owner may be able to defend against an enforcement action by claiming that the association has not equally enforced its documents. Additionally, there have been cases in which owners have prevailed in court by arguing that their association waived its right to enforce a specific provision of the covenants because it had previously neglected to enforce it against other members.
In the recent Bear Island decision, the court based its ruling on the specific language of the association's Declaration of Covenants, which plainly stated that the association "may, but shall not be required to, seek enforcement of the Declaration." The plaintiff in the case, who was a unit owner and a member of the association, petitioned the court for an injunction to force the association to enforce the terms of its declaration against other owners who had modified and improved their properties without first seeking prior approval by the association. Due to the specific language in the declaration, the court found that the plaintiff did not have a clear legal right to injunctive relief.
Associations should avoid reading more into this case than what is actually there. The ruling applies only to the appropriateness of injunctive relief to force an association to enforce its governing documents when the association's declaration specifically states, in plain and clear language, that the association is not required to seek enforcement. Community associations, including those with this or similar language in their declarations, should continue to act equally towards all members and avoid arbitrary enforcement of their governing documents, as the failure to do so could continue to result in owners successfully defending against an enforcement action or challenging the association's actions.
This ruling is bound to receive a fair amount of attention, and we encourage associations with questions about its applicability to their enforcement actions to consult with our community association attorneys or their own qualified and experienced legal counsel.