Reviving Previously Unenforced Restrictions
While trying to enforce restrictions and rules in your community, have you run across evidence, or worse, been brought to your attention by current residents or a pending lawsuit, that your current or previous boards were arbitrarily or inconsistently been enforcing certain rules and restrictions?
What are you to do now? Just give in? Not necessarily. A restriction can be revived with notice, to the community, that the association will enforce the restriction moving forward. This lets owners know that the board will actively and evenly enforce the restriction in question. Attorneys refer to this as the Chattel Shipping clause and comes from the case in 1985 of Chattel Shipping and Investment, Inc. v. Brickell Place Condo Assoc.
In this case the association’s declaration of condominium prohibited unit owners from enclosing their balconies without prior approval from the board. Multiple owners, nevertheless, enclosed their balconies without the requisite approval. The board, prompted by a letter from the city that the enclosures violated the city’s zoning ordinance, informed the owners that it would enforce the restriction and prohibit future balcony constructions. After this announcement, one unit owner, Chattel Shipping and Investment, Inc., enclosed its balcony. When the association secured a mandatory injunction requiring the removal of the balcony enclosure, the unit owner sought a reversal on the ground that the association had failed to require the dismantling of the other existing enclosures and thus was unequally and arbitrarily enforcing the restriction.
The court rejected the owner’s argument, holding that the association could adopt and implement a uniform policy under which a building restriction will be enforced only prospectively without the enforcement of the same being deemed selective and arbitrary. This allowed for the association to revive the enforcement of a restriction despite previous non-enforcement by notifying the members of the board’s intent to prospectively enforce the restrictions.
In some cases, depending on the restriction, your association may want to adopt the restriction providing for grandfather status. You should always reach out to your association attorney for correct wording and advice.
