Selective Enforcement: Uneven HOA Enforcement in Florida

Selective enforcement is one of the better-known defenses to an HOA fine because it puts the association's own conduct in question. The underlying idea is fairness: an association that enforces a rule against one owner while letting neighbors break the same rule freely invites the argument that it cannot enforce the rule selectively. This article explains how the doctrine works as general information — it is not legal advice, and whether it applies to any situation is a question for a licensed attorney.

Where the idea comes from

Unlike the fine caps and records deadlines, selective enforcement isn't spelled out in a single Chapter 720 section — it comes from Florida case law. The Florida Supreme Court decision commonly cited for it is White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979), a condominium case about selective enforcement of a restriction. The opinion itself is the place to read exactly what the court held, and a licensed Florida attorney can explain how later Florida cases have applied it, including to HOAs.

Covenants are enforced as a kind of mutual promise among owners, which is why a board's tolerance of the same conduct elsewhere becomes part of the conversation when it enforces a rule against one owner.

In plain terms: if everyone on the street has a basketball hoop and only one owner is fined, that unevenness is the heart of a selective-enforcement argument.

What the argument generally rests on

A selective-enforcement argument generally points to facts like these:

• The same violation exists elsewhere in the community and is visible or known to the association.
• The association has not enforced the rule against those other owners.
• One owner is being singled out.

Whether the board knew about the other violations and did nothing is part of the picture.

The role of documentation

Because selective enforcement turns on evidence, the strength of the record often matters. The kinds of evidence that come up include:

• Photos of comparable violations elsewhere in the community — same rule, same conduct, different home — with addresses and dates.
• A timeline, since a pattern over time tends to be more persuasive than a single snapshot.
• Preserved communications, such as prior reports of other violations the board didn't act on.
• An organized summary tying it together (address, violation, photo, date).

A single photo of one non-compliant neighbor shows one exception; a dated, organized record of many shows a pattern.

Can selective enforcement be raised at a Florida HOA fine hearing?

Yes. It can be raised at the fining hearing and carries through if a dispute later reaches mediation or court. Under §720.305(2)(b), Florida Statutes, a fine or suspension may not be imposed without at least 14 days' written notice of the owner's right to a hearing before a committee of at least three board-appointed members.

The statute describes that hearing as one "before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association."

Does a Florida selective enforcement dispute need mediation first?

It depends on the dispute. Under §720.311(2)(a), Florida Statutes, covenant enforcement disputes between an association and a parcel owner require a demand for presuit mediation before the dispute is filed in court. That requirement does not cover collecting any assessment, fine, or other financial obligation, and emergency temporary injunctive relief can be sought without mediating first.

The statute's own words: covenant enforcement disputes between an association and a parcel owner "shall be the subject of a demand for presuit mediation served by an aggrieved party before the dispute is filed in court." That requirement does "not include the collection of any assessment, fine, or other financial obligation," and where emergency relief is required, "a motion for temporary injunctive relief may be filed with the court without first complying with the presuit mediation requirements."

A note on timing

Selective enforcement is fact-intensive, and associations sometimes attempt to "cure" it by sending notices to everyone at once. Where that happens after one owner has already been targeted, the timing can itself become part of the dispute. An attorney can assess how these facts apply to a specific case.

Sources

• White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979)
• §720.305, Florida Statutes — Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights
• §720.311, Florida Statutes — Dispute resolution (presuit mediation)