Florida courts hold that a restrictive covenant must be enforced uniformly or not at all — an association that tolerates violations by some owners while selectively targeting others is estopped from enforcing the covenant against the targeted owner, and that defense runs deeper than boards typically expect.
I. Doctrinal Framing
Restrictive covenants in Florida HOA and condominium communities serve their intended purpose only when enforced consistently. Florida courts have long recognized that a covenant enforced selectively — against some owners but not others who are in identical or comparable violation — is unenforceable against the targeted owner through the equitable defense of selective enforcement. The doctrine rests on estoppel principles that operate at the intersection of equity and property law: an association that has acquiesced in violations cannot invoke a covenant against the specific owner it chooses to pursue without addressing the broader pattern of non-enforcement.
The leading Florida Supreme Court authority is White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979), which established that condominium restrictions must be enforced uniformly and that courts will scrutinize enforcement actions that appear to target specific owners while leaving comparable violations unaddressed. That principle, developed in the condominium context under ch. 718, applies with equal force in HOA covenant enforcement under ch. 720.
II. The Elements of Selective Enforcement
To establish a selective enforcement defense in Florida, the owner must show:
- The existence of a restriction that the association is seeking to enforce against the owner;
- The owner's alleged violation of that restriction (or the association's contention of a violation);
- Other owners in the same community have violated the same restriction — not a different restriction, but the same or substantially similar one — in the same or comparable manner;
- The association has tolerated or failed to enforce the restriction against those other violating owners; and
- The association is selectively targeting this owner for enforcement while continuing to tolerate comparable violations elsewhere.
The selective enforcement defense is an affirmative defense — the owner must plead it and bears the burden of producing evidence of the comparative non-enforcement. Florida Rule of Civil Procedure 1.110(d) requires affirmative defenses to be raised in the responsive pleading; failure to plead selective enforcement before answering a covenant enforcement complaint may result in waiver.
III. White Egret — The Foundation
White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979), involved a challenge to a condominium age restriction that prohibited residents under the age of twelve. The Florida Supreme Court held that while age restrictions in condominiums could be lawful, restrictions must not be applied in an arbitrary or discriminatory manner. The court's reasoning grounded the uniformity requirement in the equitable nature of restrictive covenants: they operate as covenants running with the land, enforceable against all within the covenant's scope; an association cannot selectively exempt favored owners from covenants while targeting disfavored ones.
Although White Egret addressed a demographic restriction rather than a maintenance or structural restriction, Florida courts have applied its uniformity principle broadly. A board that tolerates parking violations by board members' families while issuing violation notices to other owners, that permits one owner's storage structure to remain while demanding another owner remove a comparable structure, or that consistently waives landscaping requirements for some owners while fining others for the same violations has created the factual predicate for a selective enforcement defense in each enforcement action it brings.
IV. Chattel Shipping and the Revival Question
Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Association, 481 So. 2d 29 (Fla. 3d DCA 1985), addressed whether an association that had long tolerated a violation could revive enforcement by providing notice of its intent to enforce going forward.
The Third DCA held that an association can restore its enforcement rights after a period of non-enforcement by providing clear notice to all owners that it will begin enforcing the previously unenforced restriction going forward. The prospective enforcement revival approach allows associations to correct past patterns of selective enforcement without permanently abandoning the covenant.
The grandfathering problem: Chattel Shipping is frequently cited for the revival principle, but practitioners must read it carefully. The court's reasoning suggested that where a violation is of a permanent or semi-permanent character — an installed structure, a permanent modification — the association that revives enforcement may be required to grandfather the existing violators whose violations predated the revival notice. The owner who installed a satellite dish in reliance on years of the association's silence cannot be required to remove it after a revival notice in the same way that the owner who installed a dish after the revival notice can.
This grandfathering principle creates a significant tension: if the association must grandfather all pre-revival violators, then the revival only benefits the association prospectively for new violations — it does not eliminate the selective enforcement defense for the owner who is a pre-revival violator being targeted despite others being grandfathered.
V. Estoppel vs. Selective Enforcement — Distinguishing the Theories
Selective enforcement is often pleaded alongside or confused with equitable estoppel. The two doctrines are related but distinct:
Equitable estoppel requires the owner to show: (1) a representation or conduct by the association (including silence where there was a duty to speak); (2) the owner's reasonable reliance on that representation or conduct; and (3) detriment to the owner resulting from the reliance. In the enforcement context, estoppel applies when the association's past acquiescence led the specific owner to take action — install improvements, purchase the unit with a known condition — in reliance on the association's apparent tolerance.
Selective enforcement does not require the defending owner to show personal reliance on the association's non-enforcement of violations by others. It requires only the existence of a discriminatory enforcement pattern. An owner can succeed on selective enforcement without showing that she personally knew about or relied upon the association's tolerance of other violations — the discrimination itself is the defect.
In practice, the most powerful defenses combine both theories: the owner who installed improvements in reliance on years of tolerance (estoppel) and who is being targeted while comparable violations continue unaddressed (selective enforcement) has overlapping equitable and doctrinal support.
VI. Evidence and Discovery Strategy
The selective enforcement defense lives and dies on comparative evidence. The owner must demonstrate actual comparable violations by other owners that the association has tolerated. Discovery in selective enforcement cases should target:
Association records (§ 720.303 and § 718.111(12) requests):
- All violation notices issued in the preceding five to seven years;
- All fining committee records and outcomes;
- All lien files related to covenant enforcement;
- Minutes of board meetings at which enforcement decisions were discussed;
- Any written policies governing enforcement decisions (complaint-driven vs. board-initiated enforcement, policies on responding to owner complaints about violations).
Site inspection evidence: Where the covenant at issue involves physical conditions visible on the property (unauthorized structures, landscaping, paint colors, fencing), visual documentation of comparable conditions on other lots or units is powerful comparative evidence. Photographs taken contemporaneously — before the association has the opportunity to selectively enforce the rule against the other violators after litigation begins — are the most useful.
Board member communications: Internal board communications (emails, text messages) discussing the targeted owner specifically — particularly communications suggesting motivation for targeting that owner unrelated to the violation (a personality conflict, a history of challenging board decisions, protected activity) — are direct evidence of discriminatory enforcement purpose.
VII. Fair Housing Act Complications
Where selective enforcement tracks a protected characteristic — race, national origin, religion, familial status, disability — the owner may have a claim under the federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq., independent of and in addition to the Florida selective enforcement defense. The FHA reaches HOA and condominium association enforcement conduct, and associations that enforce facially neutral covenants in a racially or ethnically discriminatory pattern face both disparate treatment and disparate impact theories. Counsel should evaluate whether the enforcement pattern, viewed in full, suggests a protected-class dimension before confining the case to the Florida equitable defense alone.
VIII. Practice Notes
Presuit mediation checklist under § 720.311. Covenant enforcement disputes in Florida HOAs require presuit mediation under § 720.311(2) before a civil action may be filed. The selective enforcement defense is properly raised in mediation and in litigation — confirm the association complied with presuit mediation requirements before or in response to any enforcement action.
Pleading with specificity. The selective enforcement affirmative defense must identify, with reasonable specificity, the comparable violations that the association has tolerated. Vague references to "other owners in similar violation" will not survive a motion to strike. Name the violators by lot or unit number; identify the restriction; describe the violation and the duration of non-enforcement.
Declaratory judgment as a vehicle. Where the owner seeks a ruling that a covenant is unenforceable due to selective enforcement — not just a defense to a pending action — a declaratory judgment action under Fla. Stat. § 86.011 may be the appropriate affirmative vehicle. This is particularly useful where the association has issued violation notices but not yet filed a civil action, and the owner wants to establish the defense before assessment or lien proceedings commence.
Documenting the pattern prospectively. Owners who suspect they are being selectively targeted should document the comparative violations before litigation begins — photographs, records of complaints made to the board about other violations, copies of the association's responses (or non-responses). This contemporaneous record is more persuasive than post-litigation efforts to reconstruct the enforcement history from association records alone.
IX. Open Questions and Where the Law Is Moving
The selective enforcement doctrine is well-established in Florida, but its application to "complaint-driven" enforcement policies has generated divergent lower court results. Some associations adopt formal policies limiting enforcement to violations reported by other owners rather than board-initiated inspections, arguing that a complaint-driven system is facially neutral and cannot produce selective enforcement. Florida courts have not uniformly accepted this argument: where the complaint-driven system is itself applied selectively (complaints about favored owners are not acted upon), the defense remains available.
The Legislature's 2023 and 2024 HOA transparency amendments, which impose new recordkeeping and disclosure requirements on associations, will make it easier for owners to document enforcement patterns going forward — a development that should strengthen selective enforcement defenses in future litigation.
X. Closing
The selective enforcement defense is one of the most powerful tools available to a Florida property owner facing a covenant enforcement action by an HOA or condominium association. Its foundation in White Egret's uniformity principle and the Chattel Shipping grandfathering problem provides substantial equitable leverage, but it requires careful factual development: the comparative violations, the association's knowledge, and the enforcement history must be documented through aggressive use of Florida's official records access rights and targeted discovery. An association that has not policed its community with consistency cannot invoke its covenants selectively.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.