According to James Robert Caves, III. an attorney with the law firm of Becker & Poliakoff:: “This fact pattern raises a few areas of concern. The first is how the developer’s failure to enforce the condo’s governing documents affects current enforcement by the owner-controlled association. Typically, a developer’s failure to enforce restrictions ends when the property transitions to the owner-controlled board. However, if the board does not take steps to enforce the documents following the turnover - even if the violations began beforehand - then the association has a failure-to-enforce problem.
There are a number of potential challenges in addressing an association’s failure to enforce their own documents. If a violation has been going on for more than 5 years, then there is a real possibility that the statute of limitations has run out, and the board will be unable to enforce against that owner. However, the more typical problem that arises when an association does not enforce its documents is a charge ‘selective enforcement’ or estoppel. If an association board has not enforced a specific restriction (such as a ban on pets) against all owners, it is typically prohibited from enforcing that restriction against owners committing new violations.
This problem most often arises when past boards have failed to enforce the documents, and a new board now wants to do so. None of the community association statutes explicitly address how to ‘revive’ a restriction that has not been uniformly enforced. However, an association can publish its intention to enforce the restriction uniformly going forward, and ‘grandfather-in’ in the existing violators. This process originally developed out of an appellate court case, and has been relied on by the Division of Condominiums, Timeshares and Mobile Homes in a number of arbitration decisions. To my knowledge, it has not been invoked in any other subsequent court decisions, but such a ‘grandfathering’ solution would likely not solve the owner’s problem, as it appears he wants to remove the existing pets, which may not be feasible, depending on the facts. The issues above touch on potential problems an association may face in enforcing a pet restriction that it has not uniformly enforced against all owners. However, these limitations may not apply to an individual unit owner who seeks to enforce the documents against other owners.