Selective Enforcement as a Defense

What is “selective enforcement”? For almost a thousand years, and up until almost the 20th century, England tried hard to tame the unruly Irish. The Penal Act made their religion a crime, punishable at the King’s discretion. Sometimes the King decided the punishment was beheading, sometimes he made no punishment at all. That’s selective enforcement.

Is there any mystery that Thomas Jefferson urged us all in the Declaration of Independence that we acknowledge the natural rights of men? He had seen enough of arbitrary laws, selectively enforced.

I have just seen a real estate case that raises the specter of selective enforcement in a modern context.

A woman lives alone in a second floor condominium and changes her wall-to-wall carpet to wood because her dog, now older, takes advantage of her carpet. An interior specialist assured her that laminate wood was not absorbent and would not retain odors or moisture. Like many of her neighbors, this lady chucked her carpet in favor of a high-quality, nice looking (expensive) wood floor.

Two weeks later, she got a complaint from the Board of her condominium. She had not asked permission to change her flooring, the condo documents did not permit wood flooring, and she was in violation.

Her answer was that she had spoken personally to the President of the Board and two directors, mentioned her dog’s problem, and received their consent to change the flooring. In addition, she said there were other unit owners who had gotten rid of their carpet and installed the same wood flooring.

Assume that both parties are right in everything they said. Is this likely a valid restriction in a homeowner document? Even if it is, can three out of the five directors give permission to expand those rules where others have been given the same permission? If three directors acting informally cannot validly give permission, is selective enforcement between members a valid defense to a clear violation?

Real estate professionals who deal in property controlled by associations, and especially CAMs (professional managers of associations), understand how frequently these questions arise.

The first question is the hardest, at least for Americans, because we don’t do well with rules that seem to make no sense. That’s especially true when the rules appear arbitrary. I felt that way when I plunged into Army basic training in 1970.

It took me about 3 days to understand that the Army didn’t care in the least what I thought about its rules. I was not entitled to an opinion. It took me longer to learn that the Army was exactly correct, and that if I was to do my job I would first learn to follow the Army’s rules. There are fewer opportunities today to learn that Mom was right: “Because I said so” really is enough. We can question the rules. Sometimes we can change the rules. But we can’t simply ignore them.

As it turns out, most condo rules do have some basis in logic. In this case, carpets used on a second floor muffled the percussion of footsteps for owners on the first floor, and wood floors really caused a problem for those below. The rule made sense. Not only that, but this lady’s unit was one of very few units in the entire condo that had separate owners for the top and bottom floors. All other units were two-story, but had the same owner for the bottom and the top, and the only person disturbed by their loud flooring was themselves. This owner’s facts were correct; she had been treated differently than other second floor owners. But the others didn’t have separate owners in top and bottom units. This unit was treated differently, but because the unit was different, and there was no selective enforcement.

Finally, in our example, the Court said that where an organization – be it City, County, or condo – is governed by a Board, the private utterings of the President, or of one or more board members, outside of a properly noticed meeting at which minutes are taken, is not official action at all. Furthermore, the association is not bound by informal permission given by one or more members of its board. The only actions that are binding on the Board are those that are taken at a meeting open to the owners, where the matter is available for discussion, then agreed upon by the majority.

The lesson here: Even though we have no King, we still have rules. Second, even though selective enforcement is a defense, not all selective treatment is illegal, if there is valid reason for enforcing rules differently. Finally, even if you know the directors personally, they don’t bind the board by their own personal opinion. Even a majority of the board, acting outside of a meeting, cannot create an official, binding action of a Board of Directors.

I suspect when the King could make laws and decide punishment over a mug or two, life was a whole lot less complicated. That’s why the King needed no lawyers.

Mike Chesser

President, Chesser & Barr, P.A.

President, Old South Land Title, Inc.

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