Waiver and Selective Enforcement

May 27, 2011 — An issue that arises in every co-op and condo is: Do our rules need to be applied to everyone equally? Condo and co-op board members are understandably reluctant to enforce a relatively minor rule against a neighbor who is otherwise perfect when it comes to other important aspects of condo or co-op living, such as paying their maintenance and contributing to the community. But if the rules aren't applied equally, what happens to them?

Two legal concepts that are pretty universal throughout the country are those of waiver and selective enforcement of covenants and rules. Your condo association or co-op board has rules, of course, that your unit-owners, shareholders and other residents must follow. These rules are either found in a co-op's proprietary lease and amendments; in the declaration of condominium and its declaration of covenants, conditions and restrictions; and in the rules and regulations that your board promulgates, such as bylaws and house rules.
Different states handle things differently, and you should check about details and specifics with your board's attorney. But generally, this is where the concepts of waiver and selective enforcement come into play, and you will usually find them in your state statutes or in the case law that has been developed by the courts.

  • Selective enforcement means that you cannot selectively enforce a rule against one resident and ignore the same violation by another resident, or the enforcement is invalid.  That is, if your board has ignored a beautiful parrot that is owned by a sweet retiree who lives alone, you can't then attempt to enforce the same "no bird" rule against another owner, just because that other owner is a less attractive violator.  If you try, the second violator may challenge the enforcement, claiming that it was "selective" – that the board selected certain residents against whom to enforce the rule and not others.  In most legal systems, that's not allowed.  It's even a defense against many of our state and federal laws.
  • Waiver is more universal.  If a board ignores a rule violation that is open and obvious for a significant amount of time, then you have "waived" the right to enforce the rule against that unit owner and, by extension, against anyone in the community. So if the retiree with the parrot has been regularly seen with her bird walking around the grounds, and if the board has never cited the person with a rule violation, you  cannot then enforce that rule against another owner, as you have waived the right to do so. In New York, this is even encoded in the law as what pet-owners call "the 90-day rule."

Even if the violation is not open and obvious, most states have a statute of limitations that says that, after a certain amount of time, violations that have been ignored cannot be enforced for any reason, even if they were not open and obvious. In Florida, for example, that time period is 5 years).

Unpleasant Duty
So what's a board to do?

First of all, these principles are exactly why, even though it is not always the most pleasant task, it is a board's responsibility to enforce every rule against every violator every time, lest you risk waiving the right to enforce the rule. Only if you absolutely know that you never want to enforce a rule can you ignore it entirely.  But even if you were to do so, you would arguably be violating your duty to follow and enforce the rules of the co-op or condo.  It's interesting to note, however, that there is a movement in certain states to allow some flexibility in this practice — essentially, to allow a board to legally ignore a rule you do not want to enforce.

Next page: Examples and application >>

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