Q. My condominium does not allow any animals, as spelled out in the condominium rules and regulations. This was one of the reasons I purchased in this building because it didn’t allow pets. With no regard to the rules, however, several owners had recently snuck in cats for pets. Our property is smaller, with only 39 units and only one elevator.
When the building was new, the builder allowed the first owners to bring in their small pets, with the understanding that when the animal died, there would be no replacing them. Subsequent buyers were never allowed to have animals.
What can we do to solve this problem?
—A Catch-22 in Coral Gables
A. “There are a few areas of concern raised in the fact pattern,” according to James Robert Caves III, an attorney with the law firm of Becker & Poliakoff in Fort Myers. “The first is how a developer’s failure to enforce the governing documents affect future enforcement by the owner-controlled association. Typically, a developer’s failure to enforce restrictions in the documents do not carry over to the owner-controlled board. However, if following turnover, the owner-controlled association did not take steps to enforce the documents, even if the violations began before turnover, then the association would be dealing with a failure to enforce problem.
“In addressing an association’s failure to enforce the documents, there are a number of potential problems. If the violation has been ongoing for more than 5 years then there is a real possibility that the statute of limitations has run and the association would be unable to enforce against that owner.
“However, the most typical problem that arises when an association does not enforce its documents is selective enforcement or estoppel. If the association has not enforced a specific restriction, here a ban on pets, against all owners, it is typically prohibited from enforcing that restriction against owners committing new violations.
“This problem arises with some frequency, particularly when past boards have failed to enforce the documents and a new board now wants to do so. None of the community association statutes squarely address how to “revive” a restriction that has not been uniformly enforced. However, the association can publish its intention of uniformly enforcing the restriction going forward and “grandfather-in” in the existing violations. This process originally developed out of an appellate court case and has been relied on by the Division of Condominiums, Timeshares and Mobile Homes in a number of arbitration decisions. However, to my knowledge, it has not been subsequently relied on in any other court decisions. This solution, however, will likely not solve the owner’s problem, as it appears he wants to remove the existing pets, which may not be feasible, depending on the facts.
“The issues above discuss potential problems the association may face in enforcing the pet restriction when it has not uniformly enforced the restrictions against all owners. However, these limitations may not apply to an individual unit owner who seeks to enforce the documents against other owners.”
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