Q: All of our Directors are recently elected and we are not sure how to handle basketball hoops. Our covenants were updated just a few years ago and prohibit permanent basketball hoops, but a number of owners seem to have permanent basketball hoops. How do we handle future requests?
-AB, Naples
A: This is an interesting question that requires some investigation. First, you indicated that the documents were recently updated and it is important to know if the previous set of covenants allowed permanent hoops. If the previous document allowed permanent hoops, that would answer part of the question.
Next, it is important to know whether the existing permanent hoops were approved by the Association. You should review whatever records are available. If the Association actually approved the permanent hoops despite contrary language in the governing documents, you would be prohibited from acting on those basketball hoops. If the Association did not approve the permanent hoops and assuming the documents prohibit permanent basketball hoops, then the Association may still be able to pursue these violations depending on how long the basketball hoop has existed on the lot.
The ultimate problem is that even if you are able to determine that some of the permanent basketball hoops are proper and some are improper, the usual scenario provides that the Board cannot be sure about all of the basketball hoops. As a result, most of my clients are reluctant to enforce these violations in the future because there may be an unknown violation that is not being enforced. As a result, the Board would face a defense of selective enforcement because it is enforcing some violations without enforcing all similar violations.
There is a solution. When the Board wants to prospectively enforce future violations without fear of pre-existing and known or unknown violations, then Florida law permits the Board to adopt a resolution drawing a line in the sand. The result is that older violations are effectively grandfathered, but the Board is able to strictly enforce a covenant in the future without fear of the older and known or unknown violations. In this situation, the Association could force the removal of future permanent basketball hoops without fear of the unknown associated with existing and older permanent basketball hoops.
It is highly recommended that you discuss this with your legal counsel and draft the appropriate resolution.
