Enforcement Rights of HOA

I have recently assumed the role of president of our HOA. It is a relatively small associates of 42 homes. Since assuming the role my time has been consumed with one homeowner that refuses to comply with our Architectural Standards (AS). Specifically she has viburnum hedge on her property that is in excess of 25' in some spots. Our AS clearly state that hedges must be maintained at or below 10' in height.

She has retained a lawyer who is making argument such as
1) It is not a hedge in is a tree--even though it is a dense grouping of viburnum that are planted directly along the entire rear property line.
2) Since previous boards have not enforced the height limit we can not enforce it going forward.

I have had to deal with the county (who agrees with the HOA), the state (who agrees with the HOA), the local iReporter that was called because the home owner claimed the HOA was harassing her (the reporter stopping calling her back when he got all the facts.)

We have taken the following steps:
1) 3 warning letter
2) Mediation--at which she informed the mediator that she will never cut the viburnum and that if a judge tells her to she will just get another lawyer.
3) We offered binding arbitration--to which her attorney said "Sue us"
4) We put together a fining committee and fined her up to the Fla limit of $1000. We plan on filing a claim in small claims court to collect the $1000 fine as well as all of the other fees paid by the association since mediation related to this matter.

But at this point the hedge is still in excess of 25'. Our attorney has advised us that we have the right to enter the homeowners property and cut the hedge however when we spoke with the local sheriff we were informed that if they are called to the house they will force the HOA's contractor to stop cutting unless we have a court order.

What options do we have as an HOA to force this homeowner to comply with the AS? Can we obtain a court order allowing us to cut her hedge without a long drawn out court battle? Can the small claims court judge issue such an order?

Any suggestions would be GREATLY appreciated. I am really tired of having to deal with this issue and would like to bring it to resolution as quickly as possible.

[Quote] "I have had to deal with the county (who agrees with the HOA), the state (who agrees with the HOA), the local iReporter that was called because the home owner claimed the HOA was harassing her (the reporter stopping calling her back when he got all the facts.)"

a) the county? what division? how and who agreed with the HOA?
b) the state? again...what division? how and who agreed with the HOA?
c) the reporter? ...forget the reporter, he went on to more important things that a tall tree

[Quote] 2) "Mediation--at which she informed the mediator that she will never cut the viburnum and that if a judge tells her to she will just get another lawyer."

If you follow through with the threat and win, and she does not cut the tree HERSELF, then you can take her back to court and they will charge her with violation of a court order. Unless your Bylaws say that the board has the right to enter her property to take care of violations then you could be in for trouble yourself.

Quote] "Our attorney has advised us that we have the right to enter the homeowners property and cut the hedge however when we spoke with the local sheriff we were informed that if they are called to the house they will force the HOA's contractor to stop cutting unless we have a court order."

If your attorney KNOWS that your Bylaws do say you have the right to enforce it then ignore the sheriff. The sheriff does not have the right to interfere with private association matters. That is for the civil courts to decide - at least that is the way it goes in our state.

[Quote] "What options do we have as an HOA to force this homeowner to comply with the AS?"

You can get an injunction if your Bylaws are clear and there is no distinction between hedges and trees. To me there is a difference between a hedge and a tree. A hedge can be a visual barrier but a tree with high branches is something you can see through. Just my opinion.

Just curious....are there other trees in your subdivision?

[Quote] "I have had to deal with the county (who agrees with the HOA), the state (who agrees with the HOA), the local iReporter that was called because the home owner claimed the HOA was harassing her (the reporter stopping calling her back when he got all the facts.)"

a) the county? what division? how and who agreed with the HOA?
Public Works (?) -they agreed that a viburnum can be considered a hedge. They also told the homeowner that her property was overgrown and should be better maintained to help with her flooding issues.

b) the state? again...what division? how and who agreed with the HOA?
Not sure what division however they agreed that a viburnum can be considered a hedge.

c) the reporter? ...forget the reporter, he went on to more important things that a tall tree

[Quote] 2) "Mediation--at which she informed the mediator that she will never cut the viburnum and that if a judge tells her to she will just get another lawyer."

If you follow through with the threat and win, and she does not cut the tree HERSELF, then you can take her back to court and they will charge her with violation of a court order. Unless your Bylaws say that the board has the right to enter her property to take care of violations then you could be in for trouble yourself.

Our bylaws do explicit state that the HOA has the right to enter the homeowners property and bring it into compliance however the local sherif has said that if she clams we are trespassing he will force our contractor to stop work.

Quote] "Our attorney has advised us that we have the right to enter the homeowners property and cut the hedge however when we spoke with the local sheriff we were informed that if they are called to the house they will force the HOA's contractor to stop cutting unless we have a court order."

If your attorney KNOWS that your Bylaws do say you have the right to enforce it then ignore the sheriff. The sheriff does not have the right to interfere with private association matters. That is for the civil courts to decide - at least that is the way it goes in our state.

Again the sheriff said he doesn't care what our attorney says or writes nor what is written in our by-laws--the only thing he can enforce is a court order.

[Quote] "What options do we have as an HOA to force this homeowner to comply with the AS?"

You can get an injunction if your Bylaws are clear and there is no distinction between hedges and trees. To me there is a difference between a hedge and a tree. A hedge can be a visual barrier but a tree with high branches is something you can see through. Just my opinion. --A tree can be a hedge...it is all in how it is used. "A visual barrier" seems to be the definition....and the hedge in question is planted along the entire rear property line and has no gaps.

Just curious....are there other trees in your subdivision?

The are other trees on her property and in the subdivision that are over 10' and we don't care about those however there are other homeowners with hedges in excess of 10' that have received warning letter (and they have complied.

Daniel,

I am not certain why you are making such a big deal over a hedge at the rear of someone's property. This comes under the heading of "So What?" But, in answer to some of your questions:

The owner's lawyer has made two arguments that you had better be prepared to overcome if you pursue this through the court.

The owner does appear to be a little irrational. Her claim that she will just hire another lawyer if she is ordered to trim the hedge is nonsense; lawyers will always tell you that get only bite at the apple. She will not get a do-over if she hires a new attorney.

The owner has said "sue me" and the sheriff has told you to get a court order. You are not going to resolve this without going to court but I see no guarantee that you will prevail. Since you already have an attorney and have discussed this with him, your question about whether a small claims court could issue an order would be best answered by your lawyer. (In my state, the answer would be "No, only the Superior Court may issue such an order.")

As to "We plan on filing a claim in small claims court to collect the $1000 fine as well as all of the other fees paid by the association since mediation related to this matter," you should also discuss this with your lawyer. I am not sure what "other fees" you are referring to. Generally, when you have multiple complaints about a party you must bring them all together in one lawsuit in one court; filing a claim in small claims court my preclude seeking a court order in another court, but this is a question best answered by your own lawyer.

LarryB13 writes: I am not certain why you are making such a big deal over a hedge at the rear of someone's property. This comes under the heading of "So What?"

The hedge actually sagged down on top of the neighbors roof causing damage during heavy rains.

Now that we have started the enforcement process the board feels that based on advice from our attorney we need to see this through to completion, regardless of whether we prevail or not. Not to do so would set the precedent that the HOA does not enforce it's Architectural Standards.

We are just looking for the quickest way to bring this issue to conclusion. Unfortunately we can either RISK IT and get a contractor to cut the hedge or we will need to take the home owner to superior court and drag this out for 18 months and who knows how much money.

We feel like we are stuck between a rock and a hard place. Do nothing and set the precedent that the board does not enforce it's rules and regulations. OR see this through to completion and consume large amounts of money and time with a risk that ultimately we could loose.

CORRECTED:

Are you the DEVELOPER?

Poor choice of words. The developer transferred the right in 1992. I was just elected president pf the h.o.a by the board after the board was elected by the homeowners.

Daniel,

My suggestion, and it's just my suggestion, get the court order and bill the homeowner along with the hedge cutting.

You said you have spoken to the local sheriff and they won't enforce your CCRs for you without such order.

If you choose not to get one and have an incident on their property, the association could be in a world of hurt.

Actually the Sheriff said that if the homeowner stated that if the homeowner said we were trespassing that he would force our contractor to stop working. We even went so far as to say all work would be conducted from the neighbors property. The contractors would only reach into her property to cut the offending hedge.

I would highly recommend using the recommendation of your attorney, OR find another attorney, BUT, take their recommendation in this matter.

You must have some version of a small claims court. Probably has a max dollar limit.

Check locally, but generally speaking, a small claims court can issue an injunction against someone who is interfering with you when you are asserting your rights.

How exactly did the developer transfer the rights?

The reason why I raise this question was that in my former neighborhood the HOA presented a letter where the developer granted the section HOA authority to act but the judge ruled that once the developer sold their last remaining property they lost their ability to confer any rights to the HOA, or any other party.

I am being told by our attorney that small claims court in Florida does not have jurisdiction on matter such as this. He said that they can only award monetary judgments and that they lack the power to force anyone to take an action such as cutting a hedge. His advice is to use the district court system which will take 12+ months to complete.

One of the other board members is looking into getting a second opinion on this.

If this is true based on what everyone here has said it appears as if we have only two options:

1) Cut the hedge as quickly as possible. Then take the homeowner to small claims court to recoup the cost.

2) File a suit in district court and once we prevail we can then cut the hedge.

Sad that our covenants clearly give us the right to cut her hedge but we have to go to court and spend $5000+ to actually do it.

I believe that the assignment of developer rights was voted on by the homeowners. It occurred back in 1993 so I am not total sure...definitely something to ask the attorney about.

The funny thing is our attorney has suggested (wink wink) that our best option is to go onto the property and cut the hedges and hope she sues. One, we have insurance to cover the legal costs should she sue. And two, since we are only trimming the hedges (not removing them) what would she claim as damages? Of course this is not something the attorney has put in writing.

As far as the damage to the neighbors house, this story is so long I left out some of the details that I didn't think were relevant but here goes:
The offending neighbor had claimed that "all" of the hedges were on her property and that her property line was ~8' further into the neighbors property than it actually was. The neighbor whose roof was being damaged tried to be nice and neighborly and trimmed only the very worst branches (and even then the other neighbor complained and called our local security). Being neighborly lasted for about a year until the offending neighbor starting picking other fights. At that point the neighbor whose roof was being damaged had a survey done. They gained ~8' of property and determined that the offending hedge was actually 2 hedge rows-one completely on their property and the other running down the property line. They removed the one that was totally on their property and eliminated the risk of any subsequent damage. At the same time the had ask the previous board to send her a warning about the remain hedge being over the allowed 10'. That is how the board got involved. Since then we have simply been trying to get her to bring her hedge into compliance. We have sent three warning letters and issued fines....we feel (and have been advised by our attorney) that if we back down now we will have set a precedent that the board will not follow through on enforcement of is rules and regulations. The next guy could say "You didn't make her cut her hedges so you can't make me cut my lawn"

I just want this matter to be settled....I know more about hedges and viburnum than any human should.

In my state a justice court or a municipal court may issue an injunction to prohibit harassment or workplace harassment. A court order to allow an HOA to go onto a member's property and cut away at the landscape would require going into the superior court; a lower court has no jurisdiction to issue such an injunction. Depending upon how much the property owner fights it, it could be quite time-consuming and costly. The court would also issue a final judgment as to who pays which costs and how much. If the court awards you less than you spent you would have no legal grounds for assessing the homeowner for the balance of your costs.

Depending upon what state you are in, your mileage will vary.

1) The developer did assign his rights to the HOA and the HOA voted to accept the rights. Didn't think this was an issue?

2) Yes that is what the attorney said "cut as much as you can before the sheriff arrives". With regards to replacement cost, we are only planning on having them cut back to 10' and you can't purchase 25' tall viburnum, so I don't know how you could calculate replacement cost. And our insurance company was already consulted and they said that they would cover the HOA if we chose to hire a contractor to enter her property and she decided to sue. But to your point--trying to find a contractor to take that on is another story.

3) The legal argument he present was based on a waiver--"Waiver is a legal concept in that if the board ignores an obvious rule violation for a specific amount of time, enforcement of that rule might be "waived" against future rules violations of the same nature." I am not saying this is correct but rather telling you what we were presented by our attorney.

I am not trying to be difficult rather I am looking for ways to bring this issue to closure as quickly as possible. As I stated earlier we offered binding arbitration as a means of resolving this matter--the homeowner wanted nothing to do with that. We really didn't care if we prevailed or not but rather that the board saw the matter through to completion. If we drop the case now not only have we lost ~$1500 in legal fees incurred to this point we also, at a minimum, loose the ability to enforce hedge height within our development. As the current board dug into this matter we saw that this homeowner has been pulling this crap for 20 years. If she doesn't get what she wants she hires an attorney and forces the board to back down. She actually delayed the construction of an adjoining home for over 1 year with this crap.

Again I think based on everything posted on this thread the best and safest option is to file suit and ride it out. I have no doubt we will prevail in the end as her violation is obvious and the HOA has followed all of is rules in trying to force her to remedy the situation (as well as any other homeowners with hedges that exceed 10').

I think that most every HOA has one. IMO, the issue is less about waiver than it is about special treatment for one person. Nothing you have said gives me the impression that hedge height non-enforcement would create a waiver. On the other hand, someone who gets away with whatever she wants can create an intolerable situation.

I'm not sure why so many folks are suggesting the most expensive, drawn out solution here. Seems like a lot of unnecessary pussyfooting. The post prior to mine asked if it's an emergency. The neighbor has already sustained roof damages, I would consider that enough, Rome doesn't need to be burning for the HOA to take action.

Your CC&R's are clear as day, it appears the SO is uninformed. This isn't entirely unexpected, many law enforcement agencies are clueless when it comes to HOA contracts and private property rights. I would arrange a meeting with your attorney and the SO to hammer this out. If that fails to produce, you might consider going to the county commissioners, which would be your last resort to getting the SO on board, before going down the path of district court.

BTW, we're getting ready to do something similar if the homeowner doesn't fix the issues and our PD said they'll come out if called by the homeowner, but to shield the contractors from the homeowner. We're fortunate to have a PD that know's what they're doing with respect to HOA issues.

Daniel,

A couple of other things to consider:

If you try forcibly cut down the viburnum and your efforts fail, the Clean Hands Doctrine (aka Dirty Hands or Unclean Hands Doctrines) would bar you from obtaining the court order you need. Under the doctrine, you cannot try some unlawful means and then go to court when that fails. The courts do not generally support those who take the law into their own hands when a legal remedy was available from the outset.

Your attorney's "waiver" argument lacks merit. If I see a cop beside the road writing a ticket to someone else and I blast by him over the speed limit and he fails to pursue me, has the state waived the right to enforce the speed laws because they knew I was speeding but failed to enforce the law against me? Does failure to pursue one speeding driver constitute a waiver of enforcing the traffic laws against all other drivers? Nearly every CC&R has a provision that says failure to enforce some violations does not constitute a waiver against enforcement. I have seen a couple of appellate court opinions where parties have tried to claim waiver due to non-enforcement but every one has failed because of the small number of violations proven; the opinions imply that there is a point where waiver might be a valid argument but so far no case I have read has satisfied the court that there are grounds for waiver.

You did not mention how long ago the dispute over the hedge began although you do mention a 20-year running battle with the homeowner and that previous boards have tried to deal with the hedge. At some point your attempts to get a court order may fail due to either the statute of limitations and/or the doctrine of laches. The statute of limitations will be found in your state's laws. The doctrine of laches is a common-law doctrine that bars an action when the plaintiff knew he had a cause of action, failed to pursue his action without good cause for an extended period of time, and the delay exacerbates the damages. The homeowner could argue that your failure to take action allowed the hedge to grow and grow to the point where she will suffer additional damages due to the amount of foliage that must be removed. (Not very convincing but it is one more thing she can throw in your face.)

When my last neighborhood amended their documents to include the authority to access and change an offending property and charge them they attempted to invoke that once - a homeowner purchased a new roof and it was metal versus the typical shingle you would see. The board found it visually unappealing and decided to order them to remove their brand new roof (which was chosen because of the hurricane damage they previously have and potentially could sustain) and replace it with another roof of their chosing. That homeowner fought them every step of the way.

Granted, your rule of 10' is more objective than subjective but here is something to consider. While other trees in the neighborhood have been put on notice how did this hedge reach 25'? Did the previous board fail to act during 15' of growth giving the homeowner reason to believe it was allowed?

I still think the best option is the costliest but I think it protects the HOA and all other involved parties. Plus, once finished it will be a good learnin moment. I also think you should reevaluate your contract with your attorney. If they gave you that wink wink imagine what they would be willing to overlook to accomplish a particular goal... and put you at risk.

Because some people want others to do things they simply don't want to do themselves.

It's not necessarily ok, but if the Association has enforcement authority, it's legal.

Sorry, Guess I should give more information. I was referring the the judge that ruled against a letter from the developer transferring rights after-the-fact.