WAIVER AND SELECTIVE ENFORCEMENT, P.2

So let's assume that a board has accidentally selectively enforced a rule, or waived enforcement of that rule, and that the board (or an entirely new board) wants to begin enforcing it again.  Well, there's a procedure for doing exactly that: You would have to announce to the shareholders or unit-owners that, from a point in time forward, you intend to begin strictly enforcing the rule — and then you need to start doing so.  
 
But what happens to all of the current and past violators?  They would then be "grandfathered" into the rule, and allowed to violate it — at least as to the specific violation that has been occurring, but not new violations that occur in the future.
 
Flipping the Bird
 
Let's look at a couple of examples. Say that a new board were to be elected in the co-op or condo we discussed above, where a resident had been keeping a bird openly for many years.  This new board wants to begin strictly enforcing its no-bird policy.  You would send a letter to all owners/shareholders notifying them of your intention to enforce the rule, and asking anyone currently violating the rule to register their "violation" (in this case, ownership of a bird) so that it can be grandfathered.
 
These people would be allowed to keep the birds they already have in their homes but they would not be allowed to keep new birds, or to replace a bird that passes away.  The grandfathering is only good for that specific, currently occurring violation.  
 
People try to get around this rule in creative ways — in one property, a woman whose grandfathered dog passed away purchased a new dog and dyed its hair to match that of the older dog, to try to pass it off as the same dog. Didn't work.
 
Screen Test
 
Now, this policy applies to other types of violations as well.  Let's assume that a resident has screened in his balcony, in violation of the co-op or condo's rules.  The board ignores this violation, and it is eventually waived (and, by the way, we're assuming that the screen is not a local code violation, which raises other issues). When your later decide to cure your waiver, this screened-in balcony would be grandfathered into the rule, and would be allowed to remain. However, if the owner ever wanted to screen-in the balcony of the apartment he purchased next door and combined, that would not have to be allowed.
 
So the concepts of waiver and selective enforcement are critical for every board member to understand. If you, as a board, intend to enforce the rules of your co-op or condo, you must enforce them consistently, against every person, no matter the situation or any extenuating circumstances (absent, of course, federal or state legal issues, such as a requirement to allow owners to keep support animals).
 
As a board member, I regularly hear from owners who are surprised and annoyed to find that our board is not willing to make exceptions for them, even when those exceptions are reasonable. But the law doesn't allow exceptions.  It's sometimes hard to understand, and harder to accept, but that's just the way it works.  The rules are designed to prevent boards from playing favorites, but it also has the negative consequence of making enforcement of the rules completely inflexible.

Ryan Poliakoff is vice president of The Ocean Palms Association, Inc. and the co-author of New Neighborhoods: The Consumer's Guide to Condominium, Co-op and HOA Living, available through New Neighborhood Publishing. He blogs at Ryan Poliakoff on Condo & HOA Living,  from which this was adapted. 

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