This is an all too common phrase uttered by members of associations. It is most uttered when the Board is enforcing its condominium documents, including its rules. The chant increases in volume when the violating owner is able to find some other violation of some other rule that they believe the Board is not enforcing. Frequently it has this ring to it: “this is discrimination.” For many reasons that argument fails to hold water. However, courts do listen to owners who can show that an association is only enforcing or selectively enforcing its rules. That does not mean that the owners win, as they often do not, but it does mean that the association will spend attorney fees on the matter. In a recent Texas case, Forest Hills Improvement Association, Inc. v. Flaim, the Texas Court of Appeals addressed this exact situation and held that the association’s failure to enforce one restriction did not result in a waiver by the association of its right to enforce all restrictions. The appeals court decision reversed a decision in the owners favor at the trial court (so significant attorney fees were incurred). The appeals court found that to prove waiver a violation must be so substantial that the average person would reasonably conclude that the restriction had been abandoned. Factors to consider in analyzing waiver include the quantity and severity of the violations, prior enforcement actions, and whether it is still possible to realize to a substantial degree the restriction’s intended benefit.
In the same case the court also held that the verbal denial of an architectural request was sufficient because the documents did not require a written response.
Lesson: Although an association may not be required to enforce every rule, it is likely far cheaper and a better practice for the association to write or re-write its rules so that it in fact does enforce every rule, if for no other reason than to avoid most of the attorney fees involved in fighting claims of YOU CAN’T DO THAT.