Community Association Case Law Update: Selective Enforcement and Violations When Installing Hardwood Floors

Earlier this year the Third District Court of Appeals narrowed two significant unit owner defenses to enforcement actions, selective enforcement and waiver/ estoppel when it decided Laguna Tropical, a Condominium Association, Inc. v. Barnave, Case No. 3D16–1531 (Fla. 3d DCA January 25, 2017). For more on the doctrine of Selective Enforcement, please review our October 2014 blog posting.

At issue was the enforcement of two restrictions that are typically related – Internal Alterations and Noise. The declaration of condominium in Laguna prohibited a unit owner from altering, modifying or replacing the interior of a unit without the prior consent of the Association’s Board of Directors. Another provision specifically applicable to flooring “noise” states:

Unless expressly permitted in writing by the Association, no floor covering shall be installed in the units other than any carpeting or other floor covering installed by the Developer. In any event, each unit owner shall have the duty of causing there to be placed underneath such floor covering, so as to be beneath such floor covering and the concrete slab, generally accepted and approved materials for diminution of noise and sound, so that the flooring shall be adequately soundproof.

The second story unit owner replaced her unit carpeting with laminated flooring and the resident in the unit below complained about noise. After an unsuccessful arbitration filing and mediation, the Association sought injunctive “and other” relief against the owner and tenant. The unit owner defended on the doctrine of selective enforcement and waiver. After a nonjury trial, the owner prevailed. The Association took an appeal to the Third District Court of Appeals.

It helps to understand this condominium community’s unusual design. There are 94 units: 11 were only upstairs “units;” 11 were only “downstairs” units; and the remaining 72 units were first and second floor units. As a result, most of the units would not be affected by the complained of noise issue. This building design is relevant to the selective enforcement defense because owners of upstairs and downstairs units who installed hard flooring upstairs would presumably not complain about their own flooring. Similarly, hard flooring installed in a downstairs unit normally would not generate flooring complaining.

As such, the Court focused on complaints actually made to the Association. The Court held that the flooring restriction “is plainly intended to avoid noise complaints.” The Association enforced the noise rule when there was a complaint by a downstairs owner. Because there were no complaints that were not acted upon, the apparent existence of hard flooring that did not generate a complaint did not constitute selective enforcement.

When a restriction is intended to protect neighboring owners from nuisances such as noise, it appears that if there is no complaint, then the association’s failure to enforce does not automatically create a selective enforcement defense. Generally speaking, when faced with a violation and complaint, if the association does nothing, then it is setting itself up for a selective enforcement defense.

However, all is not lost. The association in this situation does have options:

1. The association can do nothing and let the unit owners act as they please. Sometimes this might work, but generally this just will not work.
2. The association can sue the unit owner, either in arbitration or circuit court, to prohibit and/or remove the enforcement. This option is typically a last resort and can be very expensive.
3. The association can notify all unit owners via letter that some violations have occurred and that enforcement of the community documents will happen going forward.

Of course, the facts of each violation will dictate which course of action the association takes, as not all violations are created equal.