Blog post by David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys
Many boards of directors make enforcement decisions without considering all of the variables. We get contacted and told that an owner has violated the association’s CC&Rs. When we start asking questions, we find out that there have been similar violations in the past that the board has not dealt with. Or we find out that the violation is old news and the board failed to take timely action. Or that the violation was committed by a prior owner.
As Florida community association attorney Donna DiMaggio Berger states in a recent post to her blog (in an article entitled “Which affirmative defenses might derail your community’s enforcement efforts”), “it is the rare board that undertakes a thorough analysis before sending out those demand letters to determine if the owner can use any affirmative legal defenses to successfully challenge the association’s enforcement efforts.”
Donna goes on to say that “enforcement decisions should not be made in a vacuum. Association boards are well advised to consult with their association attorney to determine (a) if they have the authority to enforce the restriction they wish to enforce and (b) if there is any current or previous situation which would make such enforcement challenging at best and impossible at worst.”
Donna describes several of the more typical affirmative defenses (this is what we lawyers call the defenses asserted by a defendant in a lawsuit) “which might derail your board’s enforcement efforts.”
Laches – a defense asserted where there has been a delay in taking action and the defendant homeowner claims that the delay has caused them prejudice.
Equitable Estoppel – an affirmative defense asserted when it is claimed that the association has not acted fairly. “This defense brings to mind the legal maxim, “he who seeks equity, must do equity.”
Waiver – a defense asserted claiming that an association has voluntarily surrendered a known right.
Selective Enforcement – This is a typical defense asserted by an owner claiming that the association is enforcing the CC&Rs or Rules against the owner but not seeking enforcement for other violations at the association.
As Donna concludes, “If you are a board member attempting to enforce your [association’s] use restrictions, please speak with experienced association counsel to ensure that a possible affirmative defense is not lurking out there.”
To learn more about affirmative defenses, read Donna’s article, as she provides expanded definitions and examples of affirmative defenses.
David Swedelson is a condo lawyer and HOA attorney who has litigated and resolved hundreds of community association enforcement disputes. David can be reached via email: firstname.lastname@example.org