A defense owners can raise if the Board claims the owner has violated the rules is “selective enforcement,” meaning the Board arbitrarily picks on some violators and not others. In addition, owners oftentimes like to rely on approval given by one board member, taking that as “Board approval” of the owner’s actions. The case below tackles both of these issues, in the context of a dispute over an owner’s installation of hard-surface flooring.
Facts. In a 2017 case, an owner who lived in an upper-level condominium unit replaced her carpeting with laminated flooring. The problem is, the Association’s Declaration prohibited the installation of any flooring other than carpet, without prior Board approval. The owner had not received approval from the Board prior to installation of the flooring, but she did allegedly have an email exchange with the Board president wherein he said it would be ok. The owner below her unit complained to the Board, and the Board eventually filed a lawsuit seeking enforcement of the Association’s flooring restrictions, after some failed attempts at settlement. The owner contended that the Board only selectively enforced the flooring rule against 11 of the 94 units—but the evidence showed that there were only 11 units that were upper units, and there was no evidence that the Board failed to follow up on a complaint associated with noise from any of the units below upper units.
Court Rulings. The Court found that there was no selective enforcement by the Board because (1) the clear purpose of the flooring restriction was to avoid noise complaints; (2) the evidence showed that the Association consistently took enforcement action on the noise complaints submitted to it; and (3) the noise complaints only came from lower unit owners against the upper unit owners. The Court also found that the owner was wrong to rely upon the president saying that she could install the floor, because the documents required approval by “the Board of Directors,” and not just one member.
Lesson. This case provides a good example of how a court would analyze the defense of selective enforcement by an owner, and highlights the importance of the Board taking every complaint of a violation seriously and taking consistent action. While the court did not buy the owner’s defense that she relied upon the president’s statements, all board members should still take heed and remember to be clear in your individual communications with homeowners—if something requires “Board approval,” that means that the Board has to act as a whole.
If you have any questions, please feel free to contact the Husch Blackwell LLP Condominium and HOA Law Team.