When is a Florida Homeowners’ Association Precluded from Enforcing Its Covenants?

A Florida homeowners’ association (HOA) generally has broad authority to enforce the terms of its recorded declaration, as well as its bylaws and properly adopted rules (all commonly called covenants) , but that authority is not unlimited. An HOA may be precluded from enforcing a covenant when it has expired, conflicts with Florida law, exceeds the HOA’s authority, is ambiguous, was adopted improperly, or has been applied inconsistently.

These defenses are highly fact-specific. Depending on the issue, a court may invalidate the covenant entirely, prevent enforcement against a particular homeowner, or merely require the HOA to restart the process correctly.

The Association Lacks Authority

An HOA cannot enforce a covenant simply because its board of directors believes doing so would benefit the community. That power must come from the recorded declaration or from rules or policies validly authorized by that declaration.

This limitation is especially important in architectural-control disputes. Under Section 720.3035, Florida Statutes, an association may regulate the location, size, type, or appearance of an improvement only to the extent that its authority is specifically stated—or reasonably inferred—in the declaration or authorized published standards.

The statute also prohibits an HOA from relying on a policy that conflicts with the declaration, even if the policy is applied uniformly. For example, an architectural committee generally cannot invent a setback, material requirement, or design limitation that does not appear in the governing documents or an authorized guideline.

Florida courts also construe ambiguous restrictive covenants in favor of the free use of property. In Bendo v. Silver Woods Community Association, 159 So. 3d 179 (Fla. 5th DCA 2015), the Fifth District Court of Appeal rejected an HOA’s attempt to extend an architectural-approval provision to landscaping when the covenant’s language did not clearly provide that authority. The court explained that covenants running with the land must be strictly construed, and that any ambiguity is resolved in favor of the homeowner.

The Covenant Conflicts with Florida Law or Public Policy

Even clearly written covenants cannot be enforced when a statute overrides them.

Section 720.3075, Florida Statutes, identifies several restrictions that Florida HOAs may not enforce. Among other protections, Florida law, subject to applicable conditions, precludes an HOA from using its governing documents to prohibit or improperly restrict matters such as:

• The display of specified flags;
• Florida-friendly landscaping;
• Certain lawful energy sources and appliances;
• A homeowner’s choice of contractors or workers solely because they are not preferred vendors;
• Personal vehicles, including pickup trucks, parked where the owner or guest otherwise has a legal right to park;
• Work vehicles that do not qualify as statutory commercial motor vehicles; and
• Lawful operation of non-commercial vehicles on public roads, rights-of-way, or the owner’s parcel.

Additional protections appear in Section 720.304, Florida Statutes, including rights involving peaceable assembly, certain flags and flagpoles, medically necessary access ramps, security service signs, and protection from meritless lawsuits based solely on a homeowner’s exercise of protected petitioning activity.

Florida law also limits architectural restrictions affecting hurricane protection. An HOA may adopt hurricane protection specifications, but it may not deny a conforming application for qualifying protection such as impact-resistant windows, storm shutters, reinforced garage doors, certain roof systems, generators, or fuel-storage tanks.

Finally, covenant enforcement must comply with fair-housing laws. Florida’s Fair Housing Act, in Section 760.23, Florida Statutes, prohibits discrimination based on race, color, national origin, sex, disability, familial status, or religion. It also requires reasonable accommodations to rules when necessary to give a person with a disability an equal opportunity to use and enjoy a dwelling. A facially neutral covenant therefore may become unenforceable in a particular situation if the HOA unlawfully refuses an accommodation.

The Covenant Was Extinguished Under Florida’s Marketable Record Title Act

Old covenants may be affected by Florida’s Marketable Record Title Act, commonly called MRTA.

Under Section 712.02, Florida Statutes, a qualifying owner may obtain marketable record title if there exists a 30-year old chain of title, free of claims not protected by a statutory exception. HOA covenants can be extinguished through this process if they are not properly preserved.

An HOA may preserve covenants by recording a qualifying notice during the applicable 30-year period. A proper filing generally preserves the restrictions for at least another 30 years, as provided in Section 712.05, Florida Statutes.

MRTA does not mean every covenant automatically disappears on the thirtieth anniversary of its original recording. The analysis depends on each parcel’s so-called “root of title” (a conveyance in the chain of title that is at least 30 years old which does not mention the covenant), subsequent title documents, statutory exceptions, and preservation filings. Extinguished covenants may also be revived through the statutory process described in Section 720.403, Florida Statutes and the related revitalization provisions. Title examination is necessary before any party can safely assert that MRTA controls the outcome of a dispute over the applicability of a covenant.

The Association Engaged in Selective Enforcement

An HOA may be equitably precluded from enforcing a covenant against one owner when it has knowingly tolerated comparable violations by similarly situated owners.

The strongest selective-enforcement cases generally involve:

• The same or a substantially similar restriction;
• Comparable violations by similarly situated owners;
• Actual or reasonably attributable HOA knowledge;
• A meaningful pattern of non-enforcement; and
• Enforcement against the targeted owner despite that pattern.

A few unrelated or unnoticed violations may not be enough. Material differences between the properties or conduct can also defeat the defense.

In White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979), the Florida Supreme Court recognized that a condominium association’s restrictions must not be applied selectively or arbitrarily. Although the case arose in the condominium context, its equitable principles frequently apply in HOA disputes.

Selective enforcement does not necessarily erase the covenant permanently. Depending on the circumstances, an HOA may provide clear community-wide notice that it will enforce the restriction prospectively. Existing violations may present separate questions involving waiver, reliance, or grandfathering.

Waiver or Estoppel Prevents Enforcement

Waiver and equitable estoppel overlap with selective enforcement but are not identical to it.

Waiver may arise when an HOA intentionally relinquishes a known enforcement right. Estoppel may apply when the HOA’s words, conduct, approval, or silence reasonably cause an owner to believe that certain conduct is permitted. If the owner relies on that belief, enforcement may cause a material detriment to the owner.

Examples may include:

• Written approval, followed by an attempt to revoke it after construction;
• Long-term acceptance of a visible improvement;
• Representations by authorized HOA agents;
• Acceptance of plans with knowledge of the disputed feature; or
• A homeowner’s substantial expenditure in reasonable reliance on the HOA’s conduct.

These defenses require more than a general allegation that the HOA “did nothing for a while.” The owner should be prepared to prove the HOA’s knowledge, the relevant communications or conduct, reasonable reliance, and resulting prejudice.

The Amendment Was Not Properly Adopted or Does Not Apply to the Owner

An HOA may be unable to enforce a covenant that was not properly adopted or amended.

Under Section 720.306, Florida Statutes, amendments must satisfy applicable voting, notice, textual-formatting, and recording requirements. The declaration itself may impose additional approval requirements. An amendment generally becomes effective when recorded in the county’s public records.

This same statute also limits the application of certain rental restrictions enacted after July 1, 2021. With exceptions for specified short-term rental regulations, a new rental restriction generally applies only to owners who acquire title after its effective date or who consent to it. An existing owner may therefore be protected even though the amendment is valid against later purchasers.

A particularly important requirement is found in Section 720.303, Florida Statutes.  It requires written notice of a board meeting at which amendments to rules regarding parcel use will be considered to be mailed, delivered, or electronically transmitted to the members and parcel owners and posted conspicuously on the property or broadcast on closed-circuit cable television not less than 14 days before the meeting. If this procedure is not followed when adopting an applicable rule, the amendment can be considered ineffective and therefore unenforceable. 

Not every technical irregularity invalidates an amendment. The statute expressly provides that an immaterial error or omission does not invalidate an otherwise properly adopted amendment. The defect must be evaluated in light of the statute, the declaration, and the consequences of the error.

The Claim Is Time-Barred or Unreasonably Delayed

A covenant may remain valid even though a particular enforcement action is untimely.

Section 95.11, Florida Statutes, generally establishes a five-year limitations period for legal or equitable actions founded on a written instrument. The statute also recognizes laches, or unreasonable delay in enforcement, which may bar equitable relief that would have been available earlier in appropriate circumstances.

Determining when the limitations period begins can be difficult, particularly for continuing conditions such as an existing fence, recurring conduct such as prohibited parking, or violations that the association alleges were concealed. The statute of limitations, waiver, estoppel, and laches are affirmative defenses that ordinarily must be pleaded, so failing to raise them properly can result in their loss.

The Association Failed to Follow Mandatory Enforcement Procedures

Procedural noncompliance may prevent an HOA from imposing a fine or may delay a lawsuit even when the underlying covenant remains valid.

Under Section 720.305, Florida Statutes, an association seeking to fine or suspend an owner must follow specified notice and hearing procedures. Among other requirements, the board must provide the statutory notice and an opportunity for a hearing before an eligible committee, sometimes called a Fine Committee. If the Fine Committee does not approve the proposed sanction, it cannot be imposed. Under the current statute, a fine or suspension also may not be imposed if the violation is timely cured as specified.

These defects may invalidate the fine or suspension without necessarily eliminating the HOA’s ability to seek another remedy, such as an injunction.

Most HOA covenant enforcement disputes must also go through a pre-suit mediation process before litigation. Section 720.311, Florida Statutes, applies to disputes involving parcel use, alterations, document amendments, and other covenant-enforcement matters, subject to stated exceptions. Failure to comply with the pre-suit mediation requirement may make a lawsuit premature and can affect eligibility to recover attorney’s fees.

Evidence Often Determines the Outcome

The parties to a dispute, whether the HOA or a homeowner challenging enforcement, should preserve:

• Every violation letter, hearing notice, and fine;
• The complete recorded declaration and all amendments;
• Architectural applications, plans, approvals, and denials;
• Board minutes and relevant HOA policies;
• Photographs of comparable properties, with dates and addresses;
• Communications showing the HOA’s knowledge or approval;
• Evidence of expenditures made in reliance on that approval;
• County property and official-record documents; and
• Records showing how the HOA handled similar violations.

Owners may also request relevant official association records from the HOA under Florida law. Selective enforcement claims are particularly difficult to prove without evidence of how the HOA treated comparable properties.

The Financial Stakes Can Be Significant

Florida law gives HOAs, and in many cases, individual members the right to sue over noncompliance. A prevailing party in litigation under Section 720.305, Florida Statutes, may recover reasonable attorney’s fees and costs. It is possible that once a clear covenant violation is established, an enforcing party may obtain injunctive relief without proving the traditional elements of irreparable harm and the absence of an adequate legal remedy, pursuant to the court case styled Mooney v. Color Le Palais of Boynton Beach Homeowners Association, 419 So. 3d 1078 (Fla. 4th DCA 2025).

For that reason, neither side should assume that a seemingly minor dispute will remain inexpensive. A homeowner should obtain advice from a Florida attorney familiar with community association and real property law before ignoring a notice, altering the property further, withholding assessments, or commencing litigation.

This article reflects Florida law as of its publication date and is intended for general informational purposes. It is not legal advice and does not create an attorney-client relationship.

Gary M. Kaleita is a shareholder at Lowndes and has been certified by the Florida Bar as a specialist in real estate law since 1993. He is a member of the firm’s Practice Groups involving Commercial Leasing, Banking and Finance, Condominium and Multi-Family Developments, Homebuilders and Residential Developments, and Distressed Real Estate. Gary can be reached by phone at 407-418-6334 or gary.kaleita@lowndes-law.com.