CHATTEL SHIPPING AND INVESTMENT, INC., APPELLANT,
v.
BRICKELL PLACE CONDOMINIUM ASSOCIATION, INC., APPELLEE
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A condominium association obtained a mandatory injunction requiring removal of a balcony enclosure erected without permission in 1983. The unit owner challenged this on grounds of unequal enforcement, arguing that the association's failure to remove pre-1981 enclosures made enforcement of the prohibition arbitrary. The court affirmed, holding that a uniform prospective enforcement policy is not selective or arbitrary under condominium law.
The adoption and implementation of a uniform policy to enforce a building restriction only prospectively does not constitute selective and arbitrary enforcement. An association may enforce such a restriction against subsequent violators even if it does not require removal of pre-existing violations, particularly when the subsequent violator received specific notice that future violations would not be permitted.
[1] A condominium association's adoption and implementation of a uniform policy to enforce a building restriction only prospectively is not deemed selective and arbitrary enf…
[2] A condominium association may be estopped from enforcing a regulation when prior non-enforcement has led to expenditures made in justified reliance on the continuation of…
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Join FLexlaw to unlock all legal intelligence“the adoption and implementation of a uniform policy under which, for obvious reasons of practicality and economy, a given building restriction will be enforced only prospectively cannot be deemed "selective and arbitrary" within the meaning of White Egret”
Establishes the core holding that prospective enforcement policies are permissible and not arbitrary under condominium law
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Join FLexlaw to unlock all legal intelligenceThe Brickell Place Declaration of Condominium prohibited balcony enclosures without prior approval. By June 17, 1981, approximately forty-five unit ow…
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SCHWARTZ, Chief Judge.
Although the Brickell Place Declaration of Condominium precluded the practice without prior approval, as many as forty-five unit owners had, by June 17, 1981, unauthorizedly enclosed their balconies. On that date, in response to an earlier letter from a Miami official that the enclosures violated the city’s zoning ordinance, the board of the condominium association determined — and so informed the owners— that it would thereafter take “no action with respect to existing, but prohibit future balcony constructions and enforce the prohibition.”
In the court below, the association secured a mandatory injunction requiring the removal of a balcony enclosure erected without permission in 1983. The unit owner, Chattel Shipping and Investment, Inc., seeks reversal on the sole ground that, because the association has failed to require dismantling of the enclosures in place in June, 1981, the present action to remove a subsequently-erected one represents an “unequal and arbitrary enforcement of the restriction” which may not be maintained under White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346, 352 (Fla.1979).
We reject this position upon the holding that the adoption and implementation of a uniform policy1 under which, for obvious reasons of practicality and economy, a given building restriction will be enforced only prospectively cannot be deemed “selective and arbitrary” within the meaning of White Egret. See Constellation Condominium Association v. Harrington, 467 So. 2d 378 (Fla. 2d DCA 1985), and cases cited. Compare Ladner v. Plaza Del Prado Condominium Association, 423 So. 2d 927 (Fla. 3d DCA 1982) (association not precluded from enforcing restriction against unit owners not given permission by developer to violate regulation), pet. for review denied, 434 So. 2d 887 (Fla.1983); with Plaza Del Prado Condominium Association v. Richman, 345 So. 2d 851 (Fla. 3d DCA 1977) (prior holding that same association precluded from enforcement of same restriction against unit owners permitted to violate restriction by developer); see generally, Juno By The Sea North Condominium Association v. Manfredonia, 397 So. 2d 297 (Fla. 4th DCA 1980) (upholding condominium parking restriction which “makes sense” as therefore not unenforceably arbitrary), pet. for review denied, 402 So. 2d 611 (Fla.1981); Wayte v. United States, — U.S.-, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (rejecting claim of selective enforcement of criminal law).
It is important also that, when selective enforcement has in fact been demonstrated, the association is said to be “es-topped” from applying a given regulation. White Egret, 379 So. 2d at 352. Obviously, this is because, as in White Egret itself in which several children were living in the condominium contrary to the restriction when Franklin purchased his unit, previous non-enforcement has led to expenditures made in justified reliance on the continuation of that policy. See 22 Fla.Jur.2d Es-toppel and Waiver, §§ 41-42 (1980); see also Fifty-Six Sixty Collins Avenue Condominium, Inc. v. Dawson, 354 So. 2d 432 (Fla. 3d DCA 1978); and Richman, supra, cited in White Egret, 379 So. 2d at 352. This principle plainly has no application to the present appellant,2 which erected its forbidden structure after being placed on specific notice that any subsequent violation would not be permitted. 22 Fla.Jur.2d, supra §§ 54-57; Constellation, supra.
Affirmed.
. In accordance with its announcement, the association has in fact taken action against each of the several enclosures which were erected after June 17, 1981.
. The fact that, in contrast and as in Richman, supra, unit owners who enclosed their balconies before the announcement of the contrary policy in 1981 might be able to invoke the estoppel principle provides another reasonable, non-arbitrary basis for the association’s decision not to proceed against them.
Cases With Similar Vibessemantic neighbors from the corpus
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Brickell BAY Club Condo. Ass'n, Inc. v. Hernstadt, 512 So. 2d 994 (Fla. 3d DCA 1987)…e Association. Schmeck v. Sea Oats Condo. Ass’n, Inc., 441 So. 2d 1092 (Fla. 5th DCA 1983); Ladner v. Plaza Del Prado Condominium Ass’n., 423 So. 2d 927 (Fla. 3d 1982); Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Ass’n, Inc., 481 So. 2d 29 (Fla. 3d DCA 1985); Constellation Condominium Ass’n. v. Harrington, 467 So. 2d 378 (Fla. 2d DCA 1985). In Fountains of Palm Beach Condominium, Inc. No. 5 v. Farkas, supra, the court rejected the same argument presented here that the failure of the A…
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Shields v. Andros Isle Prop. Owners Ass'n, Inc., 872 So. 2d 1003 (Fla. 4th DCA 2004)…ing signs; and 3) the new board sent only 11 violation notices to homeowners. “When selective enforcement is demonstrated, the association is ‘estopped’ from applying a given regulation.” Chattel Shipping & Inv., Inc. v. Brickell Place Condo. Ass’n, 481 So. 2d 29, 30 (Fla. 3d DCA 1985) (citing White Egret Condo., Inc. v. Franklin, 379 So. 2d 346, 352 (Fla.1979)). Viewing all inferences in favor of the homeowner, the association failed to conclusively show the absence of genuine issues of material fact on th…
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Ests. OF Fort Lauderdale Prop. Owners' Ass'n, Inc. v. Kalet, 492 So. 2d 1340 (Fla. 4th DCA 1986)…onal elements of estoppel. In particular, I would have required a showing of detrimental reliance by the petitioners on the actions or representations of the association, see Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Ass’n, 481 So. 2d 29 (Fla. 3d DCA 1985). At trial, the petitioners did put forth evidence of the failure of the association to enforce the restriction against other similarly situated unit owners with children. However, the petitioners never claimed that they relied upo…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wayte v. United States, 470 U.S. 598 (U.S. 1985)
- White Egret Condo., Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979)
- Ladner v. Plaza del Prado Condo. Ass'n, Inc., 423 So. 2d 927 (Fla. 3d DCA 1982)
- Juno by the Sea N. Condo. Ass'n (the Towers), Inc. v. Seraphin Manfredonia, 397 So. 2d 297 (Fla. 4th DCA 1980)
- Plaza del Prado Condo. Ass'n, Inc. v. Richman, 345 So. 2d 851 (Fla. 3d DCA 1977)
- Constellation Condo. Ass'n, Inc. v. Harrington, 467 So. 2d 378 (Fla. 2d DCA 1985)
- Fifty-Six Sixty Collins Ave. Condo., Inc. v. Dawson, 354 So. 2d 432 (Fla. 3d DCA 1978)