Dealing With Pests: A Different Perspective

Published on: May 8, 2002

John Swalm, an attorney in Florida, has defined condominiums as being the Latin derivative for sharing walls with people of lesser intelligence. In this article I will discuss some of the emerging new philosophies relating to dealing with rules and regulations against two legged pests. It appears that new trends are evolving relating to the manner of enforcing rules and regulations. In the past, the traditional philosophy was that all restrictions had to be enforced in all cases without regard to the circumstances and there were concerns that any waiver of the restrictions would be a breach of the duties of the Board. However, there are certain circumstances where I would contend that enforcement of the restrictions as written would create what Wayne Hyatt refers to as a “manifest absurdity”.

Although input from readers would be greatly appreciated, it would seem to me that there are cases where exceptions to the rules may very well be in order, even though in most cases enforcement of the rules and restrictions is the appropriate method to utilize. For example, if an association has a no pet restriction, would enforcement of the no pet clause against the community association owner who has goldfish be necessary and would it jeopardize the no pet clause in general? I would speculate that courts would be reluctant to buy into the argument that waiving the restriction in the case of the goldfish would therefore waive the restriction in the case of an owner with a pit bull terrier.

Recently I received a call from an association which was established as an adult community for persons over 55 years of age. The association was concerned that if they allowed a 90 year old disabled woman to have a health care worker who was under the age of 55 reside in the unit for purposes of giving medical care that they would lose their right to enforce the age restriction. It is likely that if the association were to enforce the restriction, they would be violating the Federal Fair Housing Amendments Act of 1988. In addition, it would appear to me that a court would consider enforcement of the restriction under these particular circumstances to be a “manifest absurdity”.

Many community association documents have waiver language which in essence states that failure to enforce a restriction in a particular case will not constitute a waiver of the restriction in all cases. This language would appear to give association boards some flexibility in determining when to enforce a restriction and when they might consider waiving the enforcement of a restriction. Associations might very well wish to review and amend their current rules and regulations and/or restrictions since many of these restrictions are fairly old and their initial intended purpose might no longer be being served by keeping the restrictions on the books. An association going through this process should certainly consult an attorney familiar with community association law to determine what the board may do and what risks they run. However, the larger task of boards is to evaluate the initial purpose of each restriction and determine whether the restriction makes sense in 1995. My contention would be that most boards would find that they would limit and reduce the number of restrictions if they were to go through this process. Certainly involving the unit owners in the process would be helpful.

There are simply some restrictions which do not necessarily make sense today even though they may have made perfect sense 10 or 20 years ago. For example, the nature and look of commercial vehicles has changed dramatically over the years. Associations may want to evaluate what the purpose of the restriction relating to commercial vehicles is and how best to craft a restriction which would serve that purpose. It would appear that the initial basis for restricting commercial vehicles was for aesthetic purposes and for purposes based on damage caused by the weight of the vehicles. It is certainly possible to redraft a restriction which serves the initial purpose for that restriction.. To enforce a restriction simply because it appears in the documents does not make sense if the owners and board no longer see the purpose of having the restriction and therefore associations would be far better off to simply eliminate enforcement solely for enforcement sake without regard to the purpose which the association is seeking to obtain.

Many restrictions certainly have a sound basis in terms of preserving, protecting and enhancing the quality of the community and certainly these restrictions should be maintained and enforced. I would also suggest that most boards are acting prudently when they enforce these restrictions. After all, most purchasers of units in community associations purchase into a certain lifestyle. In most cases it would be unfair to all the owners who purchased based on certain restrictions for a board simply to ignore these restrictions and to take no action to enforce them. Unfortunately, it is the unusual matter that might occur once every hundred times that causes the most problems for community associations. It is suggested that boards pay particular attention to those unusual cases to see how the restrictions should be enforced, if at all, and not to simply enforce the restriction simply because it exists.

For most, the community association lifestyle has tremendous benefits and most boards are extremely conscientious and reasonable in terms of enforcing their restrictions in order to maintain the lifestyle and quality of life at the association. However, those cases which are newsworthy to the media are those typically in which a board may not be acting reasonably and where the board may be simply enforcing restrictions because they believe they have a duty to enforce restrictions in every case no matter what the circumstances.

The law in this area is starting to emerge and unfortunately there are no clear cut answers to some of the issues which we are now being faced with. Therefore, any ideas and comments suggested in this article are largely untested. I would be very interested, therefore, in the comments of readers as to how best to deal with rules, regulations and restrictions which either no longer make sense in total or which might not make sense in particular circumstances.