COMMUNITY ASSOCIATION NEWS:

To Enforce or Not To Enforce – Does the Board have discretion? 

Recently, the Fourth District Court of Appeal, in Heath v. Bear Island Homeowners Association, Inc., held that at least in some cases, the Board cannot be required to take enforcement action against an owner who is violating the Association’s rules and restrictions.

In Heath, one owner sought an injunction against the Association to require the Association to enforce the Declaration against other owners who allegedly made changes, modifications and improvements to their properties without Association approval, as was required by the Declaration.

With respect to enforcement, the Declaration provided: 

The enforcement of this Declaration may be by proceeding at law for damages or in equity to compel compliance with its terms or to prevent violation or breach of any of the covenants or terms herein. The Developer, the Association, or any individual may, but shall not be required to, seek enforcement of the Declaration.

In this case, the plain language of the Declaration explicitly makes enforcement of violations by the Association discretionary.  Likewise, the Declaration provided that the Association or any individual could bring an action for a violation.  Therefore, the complaining owner could have brought his claim directly against the owners he believed to be violating the governing documents, rather than filing suit against the Association to compel the Association to do so.

The court held that, based on the language in the Declaration, the Association had no legal obligation to take legal action to enforce the Declaration.

Whether or not your particular association’s governing document contain similar language, or place an affirmative obligation on the Board of Directors to enforce the rules and restrictions, impacts how this case will apply to your particular situation.  Furthermore, it should be noted that the exercise of any discretion the Board may have in enforcing the Declaration may impact the Association’s ability to later enforce the same rules and restrictions against other owners under the defense of selective enforcement.  Whether or not the Association is required to enforce violations of the Declaration, the Association is required to treat all owners equally, and the Board cannot arbitrarily enforce rules against some owners and not others.