Reflects Florida law as of August 2026. Selective enforcement is a defense created by Florida courts; it applies to condominiums and HOAs alike, with the differences noted below.
What selective enforcement means
Selective or arbitrary enforcement is usually a defense to an association's attempt to enforce a restriction against a particular owner. Florida courts generally will not allow an association to enforce a restriction against one owner while knowingly tolerating materially comparable violations by others without a legitimate, non-arbitrary reason for the difference.
If the owner proves selective enforcement, the association may be prevented from enforcing that restriction against that owner under the circumstances shown. The result does not automatically remove the restriction from the governing documents or make it unenforceable against every owner.
Selective enforcement alone is not usually a stand-alone claim for damages. Depending on the facts, however, an owner may seek declaratory or injunctive relief, recover prevailing-party attorney fees in a covered action, or pursue damages under a separate statutory or common-law claim.
The leading Florida case is White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979). Although White Egret involved a condominium, Florida courts apply similar anti-arbitrary-enforcement principles in restrictive-covenant disputes involving other common-interest communities. Two brothers bought a unit as a shared vacation home. The association tried to void the sale because one brother's children were under twelve, in violation of an age restriction, while six other children under twelve were already living in the building. The Court held that an age restriction can be valid if it is reasonable and not applied arbitrarily, but that "the appellant is estopped from selectively enforcing the age restriction." The Court also refused to enforce a vaguely worded "single family residence" clause against the brothers, because ambiguous restrictions are construed against the association that wrote them.
Three related ideas travel under the label "selective enforcement." Keep them separate:
- Selective or arbitrary enforcement means enforcing a restriction against one owner while knowingly tolerating materially comparable violations by other owners without an objective, legitimate reason for treating the situations differently.
- Waiver is the argument that violations have become so widespread, longstanding, open, and tolerated that the association has effectively abandoned the restriction or its benefit has been substantially defeated. A few isolated violations usually do not establish waiver.
- Estoppel is the argument that the association, or someone with authority to act for it, approved, represented, or knowingly allowed your conduct and that it would be unfair to reverse course after you relied on that approval or acquiescence. Written approvals are much stronger than oral approvals. Whether an oral approval binds the association can depend on the governing documents, the approving person's authority, the required approval procedure, and the owner's reliance. In Plaza del Prado Condominium Ass'n v. Richman, 345 So. 2d 851 (Fla. 3d DCA 1977), owners who had installed nonconforming terrace railings with the approval of the developer's sales representative could not be forced to remove them.
Who has to prove what
The owner generally has the burden to prove selective enforcement, waiver, estoppel, or another defense that would prevent enforcement. Once the association proves a valid restriction and a violation, the owner must present evidence showing why the restriction should not be enforced under the particular facts. The Fourth District stated the rule in Prisco v. Forest Villas Condominium Apartments, Inc., 847 So. 2d 1012 (Fla. 4th DCA 2003): "A party challenging the enforcement of an otherwise valid restrictive covenant has the burden to prove defensive matters that preclude enforcement, such as the enforcing authority acted in an unreasonable or arbitrary manner." Evidence matters. A general statement that "everyone does it" is usually not enough. Identify comparable violations and support them with competent evidence, such as dated photographs, video, testimony, admissions, inspection records, violation notices, correspondence, meeting minutes, and discovery.
Photographs are helpful but not required. Testimony, association records, board admissions, and other reliable evidence can also establish that comparable violations existed and that the association knew about them.
What counts as comparable
The heart of a selective enforcement case is whether the other owners the association left alone were really in the same position as you.
A 1979 amendment banned all pets except fish and birds. The board demanded that Ms. Prisco remove her dog while several residents openly kept cats, and another kept a dog under an agreed judgment. The trial court entered summary judgment for the association; the Fourth District reversed and sent the case to trial. Because "the clear purpose of the restriction is to prohibit all types of pets except fish and birds," tolerating cats while prosecuting a dog raised a genuine question of selective enforcement. The lesson: what matters is the restriction as written. If it bans a category, ignoring one part of the category while enforcing another is evidence of selective enforcement.
An upstairs owner replaced carpet with laminate without approval, and the downstairs neighbor complained about noise. The owner argued selective enforcement because other units had hard flooring. The Third District ordered the rule enforced: only 11 of 94 units were second-floor-only units capable of producing the noise the rule addressed, and "no selective enforcement was proven, as no complaints have been shown to have arisen regarding any units except second-floor only units like the Owner's unit." Enforcing a rule only where its purpose is actually implicated is not arbitrary.
A property owners' association's age restriction for its adult section had been loosely enforced by the developer. After the association took over enforcement in 1979 it pursued violations consistently. When an owner's infant grandchild moved in, the trial court found unequal enforcement, but the Fourth District reversed, finding "a consistent effort by the association to enforce the restriction since it acquired the right to do so." Lax enforcement by a prior regime does not bind a successor that enforces evenhandedly once it is in charge.
The strongest comparisons involve materially similar violations of the same restriction during a time when the association had notice and a practical ability to enforce the rule. The violations do not have to be identical in every detail, but they must be similar in ways that matter to the restriction's language and purpose.
Earlier developer or prior-board conduct may be less persuasive in proving present selective enforcement, but it can still matter to waiver, estoppel, notice, the association's enforcement history, or the reasonableness of its position.
Material differences can justify different treatment. Relevant differences may include location, visibility, the purpose of the restriction, actual impact on neighbors, complaints received, the association's knowledge, safety concerns, timing, prior approvals, and objectively documented enforcement priorities.
Personal favoritism, animus, or the identity of the owner alone is not a lawful reason for unequal enforcement. Owner-specific facts may matter, however, where they create an objective legal distinction, such as a disability accommodation, settlement agreement, agreed judgment, written approval, or legitimate grandfathered status.
Can an association start enforcing a rule it has ignored?
Often, yes. An association may be able to begin enforcing a previously ignored restriction prospectively if it gives clear notice and applies the new policy consistently. In Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Ass'n, 481 So. 2d 29 (Fla. 3d DCA 1985), the association announced that it would leave existing balcony enclosures in place but would prohibit any new enclosures. The court upheld that prospective policy because it was uniform and the owner had specific notice that future violations would not be permitted: "the adoption and implementation of a uniform policy" under which "a given building restriction will be enforced only prospectively cannot be deemed 'selective and arbitrary.'"
Past nonenforcement is not always a permanent defense. An association may be able to draw a clear line going forward by giving owners notice and enforcing the restriction evenhandedly from that point forward.
An owner who begins a new violation after receiving a community-wide enforcement notice or a specific warning will usually have a more difficult selective-enforcement defense. Do not assume that other owners' past violations authorize a new violation. Before making an improvement or changing how you use your property, review the governing documents and seek written approval or clarification when approval may be required.
Where you raise the defense
Selective enforcement is raised in three settings.
A proposed fine. A fining-committee hearing is an important early opportunity to present evidence that other owners committed comparable violations without enforcement. Bring photographs, addresses, dates, records, approvals, and any other evidence showing unequal treatment. The fining committee's statutory role is to confirm or reject the board's proposed fine or suspension. The hearing can create an important record, but it may not resolve every legal or equitable defense that could later be raised in mediation, arbitration, or court. See Fines & Violations.
An architectural or use dispute. For an HOA, disputes between the association and an owner concerning use of or changes to a parcel or common areas, as well as other covenant-enforcement disputes, generally require a Chapter 720 presuit-mediation demand before litigation. For a condominium, many disputes involving an owner's required conduct concerning a unit or its appurtenances are subject to Chapter 718's dispute-resolution process. Depending on the type of dispute, the parties may pursue Division nonbinding arbitration or presuit mediation. The required procedure depends on whether the community is a condominium or HOA, the precise claim, the requested remedy, and any statutory exclusion.
A lawsuit by the association. A suit for an injunction to remove a fence, a shed, a pet, or a tenant, where the defense is the owner's principal answer.
For HOAs, Florida law imposes a specific reasonable-and-equitable enforcement duty for architectural standards. Section 720.3035(1) requires the association and architectural-review committee to apply and enforce architectural and construction-improvement standards reasonably and equitably to all parcel owners. Section 720.3035(5) also prevents an HOA or architectural committee from enforcing, or relying defensively on, a policy or restriction that conflicts with a parcel owner's rights and privileges under the declaration or authorized published architectural guidelines and standards, whether the policy is applied uniformly or not.
The most common fact pattern is the one that sounds strongest and proves hardest. Suppose an association cites an owner for keeping a pickup truck in the driveway, but pickup trucks have been parked throughout the community for years without enforcement. That does not by itself establish selective enforcement, but it is the right kind of evidence. The owner who can show which houses, which trucks, over what period, and that the association knew, has a defense.
For an HOA governed by Chapter 720, Florida law generally prevents association documents from prohibiting an owner, tenant, or tenant from parking a personal vehicle, including a pickup truck, in the owner's driveway (section 720.3075(3)(d)). The law also protects a personal vehicle parked in another place where the person has a lawful right to park. A work vehicle is also protected in the driveway if it is not a "commercial motor vehicle" as defined by section 320.01(25). Different rules may apply to commercial motor vehicles, vehicles parked in common areas, vehicles that violate local laws, or vehicles used in a way that creates another legal violation.
What to preserve
Because the owner generally has the burden to prove selective enforcement, gather evidence as soon as possible. Comparable conditions can change quickly if the association begins a community-wide enforcement effort or other owners voluntarily correct violations.
- Dated photographs and video of comparable conditions at other homes or units, with addresses or unit numbers, taken over time to show duration.
- A list of the other owners involved, what they did, when it began, and whether the association ever cited them.
- Association violation logs, inspection reports, notices, hearing agendas and minutes, fining-committee determinations, and nonprivileged enforcement correspondence concerning comparable violations. Many of these materials may be official records, subject to the applicable statute, retention rules, privacy protections, and privilege or other statutory exclusions. Make a focused records request. For example, request violation notices, inspection records, and fining-committee determinations concerning a stated restriction during a stated date range, rather than requesting "all enforcement records." See Official Records Requests.
- Minutes of board meetings where the restriction, or violations of it, were discussed, showing the board's knowledge.
- Any prior approvals, including written approvals, e-mails, architectural-review decisions, meeting minutes, and the names of people involved. Written approvals are stronger evidence than oral approvals. If you rely on an oral approval, record the date, the person who gave it, what was said, the person's position, and any witnesses.
- Any community-wide notice announcing that enforcement would begin, and the date you received it.
- The exact text of the restriction, including amendments, and the date it was adopted relative to your conduct.
Questions homeowners ask
If other people violate the rule, can I ignore it?
Not safely. Other violations may give you a defense, but they do not automatically give you permission to violate the rule. You may need to prove selective enforcement in a fining hearing, mediation, arbitration, or court, and the burden is generally on you.
Treat selective enforcement as a defense to document, not a license to begin a new violation. Before acting, review the declaration and rules, gather evidence of comparable conditions, and seek written approval or legal advice when appropriate.
Does it matter that the violations I am pointing to are in a different part of the community?
Yes. Courts look for materially comparable situations. Violations that were hidden, difficult to observe, did not create the same impact, did not generate complaints, or occurred before the association had notice or control may be weaker comparisons.
Visible, ongoing violations of the same restriction that the current board or manager knew about are usually stronger evidence. Earlier developer or prior-board conduct may still matter to waiver, estoppel, and the association's history of enforcement.
The board says the other owners were "grandfathered." Is that legitimate?
It can be legitimate. An association may be able to leave existing violations in place while enforcing the restriction against new violations if it clearly announces that policy and applies it consistently, as in Chattel Shipping.
"Grandfathered" may also refer to an actual legal right created by the declaration, an amendment, a written approval, a settlement agreement, a permit, or another documented exception. Ask the association for the written basis for the claimed grandfathered status.
A label alone is not enough. If exceptions are created after the fact for favored owners but denied to similarly situated owners, that may support a selective-enforcement claim.
Can I sue the association for selective enforcement?
Selective enforcement is usually raised as a defense, but an owner may also seek a court declaration that the association cannot enforce a restriction against that owner under the facts shown. An owner may seek injunctive relief when necessary to stop threatened enforcement.
In covered litigation between an owner and an association, the prevailing party may be entitled to statutory attorney fees. Under section 718.303(1), condominium litigation may allow recovery of reasonable attorney fees. Under section 720.305(1), HOA litigation may allow recovery of reasonable attorney fees and costs.
For HOA architectural disputes, section 720.3035 may provide additional remedies when an association or architectural committee unreasonably, knowingly, and willfully impairs rights granted by the declaration or authorized architectural standards.
For condominiums, section 718.1224 may apply when an association takes prohibited action because a unit owner, acting in good faith, exercised protected Chapter 718 rights, complained about statutory noncompliance, communicated with a government agency, participated in an owners' organization, or publicly criticized association management. The statute also includes anti-SLAPP protections and remedies.
When to get a lawyer
When the association is demanding removal of something expensive to remove, when a fine has been approved despite the evidence you presented, or when the association has filed or threatened suit. Selective enforcement cases are won on the quality of the comparison evidence, and an attorney can help decide what to gather, how to obtain the association's own records, and whether waiver, estoppel, or ambiguity in the restriction offers a stronger path than selective enforcement alone.