Quote:
Originally Posted by JustSomeGuy
The current policy of requiring a complaint to investigate a violation of the community standards puts the CDD at risk of losing that deed restriction completely or being forced to notify all residents that the specific restriction is now being enforced. Legal case out of Miami sets precedent. Dealt with enclosed balconies. They were prohibited. Most condos enclosed their balconies. County made an issue and the HOA (same entity as cdd when it comes to the law and enforcing deed restrictions) announced that it was again enforcing the restriction against enclosing balconies. New resident enclosed balcony. Even though over half the condos had enclosed balconies they had to remove enclosure but the other non-compliant enclosed balconies did not have to remove their enclosure since inaction by the HOA and residents seeing other residents enclose their balconies with no enforcement caused the deed restriction to become invalid.... until it was formally reinstated on future occurrences. If a CDD knowingly allows violations then the restriction becomes invalid. The CDD is the enforcer of the deed restrictions, not a complainant. The CDD has a duty to enforce the deed restrictions evenly and fairly for all residents and on all residents. It fails this duty by allowing one neighbor to violate the same restriction because no complaints were received but enforce it on another. Of course it takes a resident with the ability to sue the CDD and stick with it to prevail. Law is clear on this and all CDD and HOA's are warned of this or should be by their counsel. If challenged a CDD can negotiate and approve the "violation" but require a confidential settlement agreement, which shields the CDD and avoids a legal case that voids their deed restrictions for all residents. They settle out of court before trial so only one resident knows (but can't tell anyone) the deed restriction is likely no longer valid. The other residents, who read the deed restrictions, assume it is still valid and comply. Case is Chattel Shipping and Inv., Inc. v. Brickell Place Condominium Ass’n, Inc., 481 So.2d 29, 10 Fla. L. Weekly 2719 (Fla. App., 1985). Went to Florida Supreme Court.
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This case was ruled in favor of the association and against the enclosed balcony. The HOA rules against enclosed balconies constructed after 1981 were allowed to stand.
The CDDs do not appear to be practicing selective enforcement. I am not aware of any case of a valid complaint being ignored or a deed restriction violation being allowed to continue. In every case I am aware of, the CDDs have taken action to require deed restrictions to be obeyed.
Now, the argument might be different for an internal deed restriction. While the CDDs must operate "in the sunshine," the Developer does not. There is a standing belief/accusation that the Developer has ignored internal deed restriction violations which were brought to their attention. If this is true, if the Developer has chosen to not enforce the restrictions, then future enforcement might be challenged as being selective.