Q. Our association has a rule on the books about the number of pets and types that can be owned. According to the rules no more that one dog can be owned at the same time. This rule hasn’t been enforced in years. There are quite a few residents in our community that own two or more dogs and yet the board is planning on litigating against one resident who is allegedly violating the pet rule. Can they do this? Doesn’t selective enforcement come into play here? Thank you in advance for an answer to these issues.
A. The resident being pursued for a violation of the pet rule might very well have good defenses based on selective and arbitrary enforcement. The association could have several issues here. First, is the association rule consistent with the recorded covenants in the community Declaration and bylaws? If not, the rule might not be enforceable at all. Second, while pet and other reasonable restrictions are generally deemed to be valid, the restrictions could lose their validity if they are not enforced on a consistent basis over time. We generally do not chastise our association clients if they delay enforcement efforts for a year or less, but if the association ignores the violations for years and then attempts to enforce a rule against a single resident, the association will likely have problems in court. If the association goes to court on this isolated violation and loses, it will also be responsible for the pet owner’s attorney’s fees and court costs.