Get 2 months of free community web site hosting from Community123.com!
Sunday, August 20, 2017
Get 2 months of free community web site hosting from Community123.com!


SBCA: Free education for HOAs and condos on satellite placement issues.
(National Trade Organization)
Helping HOAs, condos and property managers with satellite placement issues since 1986.
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Variances ? In an HOA - Florida
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
DanN3
(Florida)

Posts:78


04/15/2017 8:16 AM  
I am used to seeing a variance path when it comes to seeking relief from land use code requirements of government. However, I see a variance path, in my 720 HOA Declaration. One can seek a variance from anything in the governing Docs by making application to the Architectural Control Committee. I have two questions, first I see no reference or variance ability in Fla Ch 720 am I not looking in the right place? and can the ACC legally grant variances to anything in the Docs, as is written in the Declaration?
JanetB2
(Colorado)

Posts:3061


04/15/2017 9:17 PM  
Variances are supposed to be for extreme circumstances for items which are beyond a homeowner's control. For example if someone purchases a home and later becomes disabled even though the CCR's would not allow a wheel chair ramp a variance is required and can be issued due to the handicap. They should not be used to just blatantly violate the governing documents. If given in violation of the documents without a good valid reason then it may not hold up in court if challenged.

Another example using my local city is a home was built not meeting the required setback. The surveyor for the foundation did not realize that particular street was wider than normal other roads when making his measurements. That was a situation beyond the owner's control and simply an honest mistake; therefore, the city gave a "variance" to the owner allowing the smaller setback.





JanetB2
(Colorado)

Posts:3061


04/15/2017 9:20 PM  
To my knowledge the Statutes in most states do not address variances for HOA's, but it is usually in many CCR's. In my HOA they generally followed similar guidelines as the local city.
GenoS
(Florida)

Posts:1319


04/16/2017 12:56 AM  
In the case where the Declaration does not give the board/ACC the authority to issue "variances", then granting a "variance" is most likely not permitted. So if the Declaration authorizes the board/ACC to grant "variances", that's fine, but FS 720 doesn't care. Nor should it, in my opinion.
AugustinD


Posts:472


04/16/2017 7:45 AM  
I concur with JanetB2's points. I would also add the following:

1.
Case law typically addresses variance situations and is an excellent guideline for when overreach does and does not occur. You can search Florida Supreme Court and Appeals Court cases via the links here, https://www.justia.com/us-states/florida/ to get the flavor.

2.
Variances that are granted that tend to destroy the general scheme of a HOA will likely not hold up in court, unless there is a real good reason for the variance being granted (like Janet wrote).

3.
The courts appear to see the governing documents as a contract between members and the HOA corporation. If a Board varies greatly from the governing documents in granting a variance, without a really good reason, then the contract is broken. As a fantastic, senior HOA attorney (co-author of my state's HOA Act) succinctly put it to my HOA's board not long ago, "You have to be fair and reasonable."
GwenG
(Florida)

Posts:436


04/16/2017 8:11 AM  
I agree with AugustinD; FS720 does not address variances.

If by variance, you speaking about the usual setbacks of parcel at all sides for drainage, utilities etc and setback of permanent structures from roads and easments, this is the business of the local planning, building and zoning bodies. HOA's have no business messing in this turf. If HOA believes an owner modification violates the municipal/county building restrictions, they can call the responsible entity to check it out.

If you are speaking of other architectural choices where a permit is not needed, the ACC, if your Declaration authorizes one, has the right to approve or disapprove. However, eexceptions can be incorporated in other statutes and affect the authority of the HOA to enforce it own restrictions. Examples of this in Florida are landscaping, satellite equipment and clotheslines.

In general, the statute which authorizes the exception prevails in a contest; the HOA MUST respect the permissiveness of the statute but still has the authority to make the statute more restrictive, by rule. For instance, a FL environmental statute passed that specifically allows clotheslines. Prior to that, HOA forbid clotheslines. HOA MUST now allow clotheslines but can make a rule that they cannot display underwear/any hanging article between 8pm and 8am. (This is an actual idiot example!) Who goes around being offended by seeing other peoples' underwear blowing in the wind at night after dark? But, as AugustinD noted, restricting clothesline use to "after dark" or certain days of the week would fail the test of "fair and reasonable". I would describe this as an example of "HOA Underwear Reach".
BobnbS
(Florida)

Posts:2


04/18/2017 5:59 PM  
Posted By GwenG on 04/16/2017 8:11 AM
I agree with AugustinD; FS720 does not address variances.


If you are speaking of other architectural choices where a permit is not needed, the ACC, if your Declaration authorizes one, has the right to approve or disapprove. However, eexceptions can be incorporated in other statutes and affect the authority of the HOA to enforce it own restrictions. Examples of this in Florida are landscaping, satellite equipment and clotheslines.

GwenG, As you referenced above, do you have a more complete list of HOA rules conflicting with FL statutes or direct me to a site that does?

Thank you
GwenG
(Florida)

Posts:436


04/19/2017 3:12 PM  
No list that I am aware of, but the most famous Florida case involves Florida Friendly Landscaping (FFL) on private property.

Here is an excerpt from an article on this which cites the Landscape statute (HOA's are under FS720):

Florida Statute 373.185 (S.B. 2080) precludes HOAs from prohibiting property owners from implementing FFL on their land. The legislation also specifies that local governments cannot disallow homeowners from using FFL principles in their landscapes. In addition, it states that HOAs cannot prohibit FFL in their association covenants and documents nor can HOAs mandate landscape rules that are not FFL, such as water wasting practices or inappropriate site design.

There are several items this legislation does not require. For instance, HOAs and their homeowners are not required to practice FFL. The law does not change the HOA review-approval process. It also does not invalidate HOA landscape and architectural committee requirements that landscape changes must be requested and approved in advance of changes being made.

HOAs may still set reasonable restrictions with regard to FFL practices, including specifying the location of rain barrels, compost bins, and certain plants. HOAs can also require the use of St. Augustine grass as turfgrass.

The FFL legislation does not address community common areas, but recommends that HOAs set an example for residents by exhibiting FFL principles in those areas. The law also recommends that HOAs hire landscape contractors that are certified in the Green Industries Best Management Practices (GI-BMPs).

There is no enforcement agency associated with the legislation. Therefore, when disputes between homeowners and HOAs arise regarding this legislation, they are commonly settled by lawsuits.
BobnbS
(Florida)

Posts:2


04/20/2017 3:47 PM  
GwenG: Thank you for the helpful info.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Variances ? In an HOA - Florida



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement