Selective Enforcement Review Worksheet

Jason Hamilton Mikes, JD, MBA
Founder & Managing Shareholder

Worksheet
Published September 26, 2026
Reviewed by Jason Hamilton Mikes, JD, MBA, September 26, 2026
Florida Statutes as of July 1, 2026
Applies to: Condominiums · HOAs · Cooperatives

Selective enforcement is not a statutory defense. It comes from Florida case law, and it is the defense that beats associations most often, because it does not require the owner to prove the restriction is invalid. It only requires the owner to show that others were left alone. Complete this worksheet before the first letter goes out on a provision the association has not been enforcing.

Download the PDFThe PDF is a designed, printable copy for the board packet, the bulletin board or your meeting portfolio. On screen, you can tick the boxes below; nothing you tick is saved or sent anywhere.

Fill it in by hand at the meeting, or have the manager complete it and bring it to the board. Keep the completed form with the enforcement file. If the honest answers make the board uncomfortable, that is the worksheet working: it is far cheaper to find out here than in a deposition.

Nothing on this form is a substitute for advice on a specific file. Where the answers point toward abandonment or waiver, send it to counsel before any notice is sent.

1. The provision

Provision relied on (document, article and section)

Exact text of the provision, quoted

Is it a recorded covenant, a bylaw, or a board-adopted rule?

Date recorded or adopted

If a rule: date of the adopting meeting, and where the notice and minutes are filed

Has it been amended? Amendment dates and recording information

Does the provision as written actually prohibit the conduct complained of, in plain words?

Read the provision out loud at the board meeting before answering the last field.Boards enforce what they remember the rule saying. The text often says something narrower.
Confirm the provision was not superseded by a later amendment that nobody recorded or circulated.
Confirm the association has authority to enforce this provision at all, rather than it being a developer reservation or a matter for a master association or sub-association.

2. Enforcement history

How long has the association had this provision?

When was it last enforced against anyone, and how do we know?

Number of notices sent on this provision in the last five years

Number of hearings held on this provision in the last five years

Number of fines confirmed by the committee on this provision

Who searched the files, and what did the search cover (letters, emails, minutes, manager's log)?

Is there any period during which the association knowingly allowed the condition?

Search the manager's correspondence, not only the association's formal violation log.Most tolerated violations live in emails between a manager and an owner, and those are the documents that surface in discovery.
Check the architectural or modification approval file for approvals that are inconsistent with the provision.An approval the association granted is worse for the association than a violation it ignored.
Check board minutes for any decision not to enforce, or any discussion where the board declined to act.

3. Who else is or was in violation

List every unit or parcel the board is aware of, including ones where the condition has since been removed. If the list is longer than this page, that is itself the answer.

Unit or parcel 1, condition, when it began, current status

What the association did about it, and when

Unit or parcel 2, condition, when it began, current status

What the association did about it, and when

Unit or parcel 3, condition, when it began, current status

What the association did about it, and when

Unit or parcel 4, condition, when it began, current status

What the association did about it, and when

Additional units or parcels (attach a continuation sheet)

Of the comparable violations listed, how many received a notice? How many reached a hearing?

Is the owner we are about to notice the only one, or the first one, in this group?

Ask whether any comparable violator is a current or former director, an officer, or a relative of one.If the answer is yes and that one was not pursued, this file is not ready to leave the room.
Ask whether the conditions really are comparable, and write down the distinction if the board thinks they are not."Theirs is smaller" and "theirs has been there longer" are distinctions a court may or may not accept. Write the reasoning down now, while it is honest.
Ask whether the owner about to be noticed is in a protected class, has made a complaint, or has recently opposed the board.Retaliation and disparate treatment claims arise under fair housing law — 42 U.S.C. § 3604, § 3617; §§ 760.23, 760.37, Fla. Stat.

4. Abandonment, waiver and estoppel

Has the condition become so widespread that the general plan of development has changed?

Did the association, by act or silence, lead this owner to believe the provision would not be enforced?

Did this owner spend money or change position in reliance on that?

Was the condition present when this owner bought, and was it disclosed or visible?

Has the association enforced other provisions in the same document consistently?

Counsel consulted? Name and date

Understand what the association has to show: that the restriction serves a legitimate purpose and has been reasonably and evenly applied.The mechanism in White Egret was estoppel. The court found the restriction "reasonably related to a lawful objective" and still held the association "estopped from selectively enforcing" it. Estoppel is fact bound and defeats enforcement against the particular owner; it leaves the restriction itself intact.White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979) — a condominium restriction "does not inherently violate a fundamental right and may be enforced if it serves a legitimate purpose and is reasonably applied." The court's formal two-part test, reasonableness and whether the restriction is discriminatory, arbitrary or oppressive in its application, is stated for age restrictions attacked on due process or equal protection grounds.
Understand that a scattered handful of unaddressed violations is usually not abandonment, and a community-wide pattern usually is.The line is a question of degree, and it is fact specific. Do not assume either answer.
Do not rely on a waiver-of-waiver clause in the declaration as the end of the analysis.Boards treat "no failure to enforce shall constitute a waiver" as a complete answer. Courts treat it as one factor.
Where the answers point to abandonment, decide whether the better course is to amend the document rather than to enforce it.An amendment adopted by the owners is harder to attack than a board's decision to start enforcing an abandoned covenant.

5. Re-establishing enforcement prospectively

Where a provision has gone unenforced, Florida law recognizes that an association may announce it will enforce the provision going forward without pursuing the pre-existing conditions. Doing it properly is a short list, and skipping any item on it defeats the purpose.

Take the decision at a properly noticed board meeting and record it in the minutes as a policy decision, not as a discussion.The date of the decision is the date everything else is measured from.
Fix a clear effective date in the future, far enough out that owners can reasonably respond.Prospective-only enforcement after a period of nonenforcement — Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Ass'n, 481 So. 2d 29 (Fla. 3d DCA 1985)
Send the notice to every owner, by the method the documents require, not only to the owners currently in violation.A notice sent only to violators is a notice of enforcement against them, not a community-wide policy.
State plainly that existing conditions in place before the effective date will not be pursued, and that anything arising after it will be.
Say what the provision means in practice, in one or two sentences, so owners know what compliance looks like.
Decide in advance how the association will treat an existing condition that is later modified, replaced or expanded, and say so in the notice.
From the effective date forward, enforce it against everyone, in order, without exception.One exception granted quietly restarts the whole problem, and this time the file shows the board knew.
Keep the minutes, the notice and proof of mailing together. This packet is the association's proof in the first contested case.
Calendar a review at six months to confirm the policy is actually being applied.

6. The decision

Decision: enforce against this owner now / enforce prospectively community-wide / take no action / amend the document

Reasons for the decision, in the board's own words

If enforcing against this owner now, what distinguishes this file from the comparable violations listed in section 3?

Directors voting in favor / opposed / abstaining

Date of the board meeting at which this was decided

Prepared by

Date

Statutes and authorities referenced

§ 718.303(1), Fla. Stat. (condominium actions for failure to comply; prevailing party attorney fees)
§ 719.303(1), Fla. Stat. (cooperative actions for failure to comply)
§ 720.305(1), Fla. Stat. (HOA actions for failure to comply; attorney fees)
§ 720.311(2)(a), Fla. Stat. (HOA presuit mediation for covenant enforcement disputes)
§ 718.1255, Fla. Stat. (condominium dispute resolution)
§ 760.23, § 760.37, Fla. Stat.; 42 U.S.C. § 3604, § 3617 (discrimination and interference in housing)

Contact Hamilton Mikes

Hamilton Mikes reviews enforcement histories for Southwest Florida boards and drafts the prospective enforcement notices that let an association start enforcing a provision it has let lapse. We would rather look at the file before the first letter than after the counterclaim. Call 239-594-7227 or visit our Covenant Enforcement page.

About this article. This article is published by Hamilton Mikes, P.A. for general educational purposes. It is not legal advice, it is not a legal opinion, and it is not a substitute for advice from a lawyer who has reviewed your association's governing documents and the facts of your situation. Reading it, downloading it, or corresponding with the firm about it does not create an attorney-client relationship. No such relationship arises until the firm and the client have signed a written engagement agreement. Please do not send confidential or time-sensitive information to the firm until a conflicts check has been completed and an engagement is confirmed in writing; information sent before that point may not be treated as privileged.

Scope and currency. This article addresses Florida law as applied to Florida community associations, and the firm is licensed to practice in Florida only. Nothing here should be taken as a statement of the law of any other jurisdiction. Florida's community association statutes have been amended in every regular session since 2021, and subsection numbering has moved more than once in that period. Each article states the edition of the Florida Statutes it was written against. The law may have changed after that date, an appellate court may have construed a provision differently, and an administrative rule or a local ordinance may impose requirements this article does not address.

Your governing documents control. Much of what governs a Florida association is not in the statutes at all. Declarations, articles of incorporation, bylaws, rules, plats and recorded amendments differ from community to community, and on many questions they set the rule while the statute sets only a floor or a default. A procedure that is correct in one association may be a breach of the documents in the association next door. No general article can tell you which is which for your community.

Why general information is not advice. Legal questions are resolved by applying the law to particular facts as a judge, jury, arbitrator or hearing officer finds them. An outcome that appears clear in the abstract frequently turns on the documents, the chronology, the board's own prior conduct, and the procedural posture, none of which an article can anticipate. A lawyer supplies what information cannot: the judgment to identify which facts matter, the experience to know how a court or the Division is likely to treat them, the ability to choose among the courses of action actually available, and the advocacy to carry the association's position through negotiation, hearing or trial.

The standard of care, and the protection the statute attaches to counsel. A director of a Florida community association is held to the standard in section 617.0830, Florida Statutes: to act in good faith, in a manner the director reasonably believes to be in the best interests of the corporation, and to discharge the duties of the office with the care an ordinary prudent person in a like position would reasonably believe appropriate under similar circumstances. That standard is measured against the decision the board actually faced, on the record actually before it. The same statute supplies the protection that goes with the duty. Under section 617.0830(4) and (5)(b), a director who has no knowledge making reliance unwarranted is entitled to rely on information, opinions, reports and statements prepared or presented by legal counsel retained by the association as to matters the director reasonably believes are within counsel's professional competence. The Legislature has written the prudent course into the statute. A board that obtains advice on its own documents and its own facts, and acts on that advice, is standing on ground the statute expressly protects. Nothing on this website confers that protection. General information, however carefully prepared, is not advice on your declaration, your amendments, your board's history or your dispute, and a director who relies on it in place of counsel forgoes a statutory protection that was available for the asking.

Personal exposure is real. Service on an association board is usually uncompensated, but volunteer status is not itself immunity. Under section 617.0834, Florida Statutes, a director or an officer is not personally liable in monetary damages for a statement, vote, decision, or failure to act in that role unless two things are both true: the director or officer breached or failed to perform the duties of the office, and that breach was a violation of the criminal law, a transaction from which the director or officer derived an improper personal benefit, conscious disregard or willful misconduct in a proceeding brought by or in the right of the corporation, or recklessness or bad faith in a proceeding brought by anyone else. That protection turns on how the director acted, not on whether the director was paid. Chapters 718, 719 and 720 add consequences of their own, including removal from office, civil penalties assessed against the individual for certain willful and knowing violations, and in defined circumstances criminal liability. Whether any of that reaches a particular director depends entirely on the facts and on the director's conduct. The practical point is narrower and more useful: the decisions that generate this exposure — levying an assessment, enforcing a covenant, denying a transfer, withholding a record, entering a unit, terminating a contract, signing for construction work — are precisely the decisions on which general information is least adequate, and on which counsel costs least relative to what is at stake.

No guarantee; prior results. The firm makes no representation or warranty that the information in this article is complete, current or applicable to any particular matter, and disclaims liability to any person for any action taken or not taken in reliance on it. Any description of prior results does not guarantee or predict a similar outcome in any other matter; every case turns on its own facts, documents and record.

Do not act on this article alone. If your association faces a decision of consequence, obtain advice from a Florida-licensed attorney who has read your governing documents and the relevant record before the board votes, signs, sends or forecloses. Hamilton Mikes, P.A. represents community associations throughout Southwest Florida and can be reached at 239-594-7227.

Selective Enforcement Review Worksheet: What to Establish Before You Enforce an Old Restriction

1. The provision

2. Enforcement history

3. Who else is or was in violation

4. Abandonment, waiver and estoppel

5. Re-establishing enforcement prospectively

6. The decision

Statutes and authorities referenced

Contact Hamilton Mikes

Speak with a Florida community association attorney