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Subject: Would suing personally work in Fl?
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NoahA
(Florida)

Posts:205


05/18/2018 5:14 PM  
I am tired of having to ask the HOA to enforce the rules around here.

What is the % of suing someone to get a court order to remove chicken coops that have roofs (require permit for the county) of which they did NOT get a permit for, and they have chickens in their yard of which breaks the rules which are listed in the Deed Restrictions as the Covenants, specially saying.

8.01 PETS
No pets shall be maintained or kept on kept on any portion of the property,
including within any dwelling unit, other than common household pets such as
cats, dogs, goldfish, tropical fish and the like, and such birds as canaries and
parakeets. No animals, including any of the above, may be kept, bred or
maintained for any commercial use upon the property or within a building or
structure. In any event, no more than two (2) pets shall be maintained within the
boundaries of any lot.

Since this is in the Delcarations of Covenants with the county..

Would this be a court case I could win? There are 3 homes with chickens and I want all of them gone.

This is FL so you know its a loopy state with lots of wackos. (Yes I am originally from FL so I'm saying that with authority).

Would this be a waste of money as the statues say that any homeowner can enforce any other homeowner to follow the rules in court?

Any thoughts about this would help.

Also for this "message attachments" no files seem to ever let me attach.
MelissaP1
(Alabama)

Posts:7611


05/18/2018 5:18 PM  
So your the only one that wants them gone? Seems your already 3 against 1 in this fight. Feel free to take it to court. No one is stopping you. Go for it if it means that much. Just understand the consequences of your actions... Which if you sue your HOA your suing yourself and your neighbors. You could lose and the chicken houses stay. Are you willing to live with that then I say 100% go for it.

Former HOA President
NoahA
(Florida)

Posts:205


05/18/2018 5:24 PM  
Its about 30 families, there 196 total here, but I've talked to about 30 sets of peopel that are dead set agasint chickens here.
GenoS
(Florida)

Posts:2349


05/18/2018 6:35 PM  
Posted By NoahA on 05/18/2018 5:14 PM
Would this be a waste of money as the statues say that any homeowner can enforce any other homeowner to follow the rules in court?

The statutes do say that. What's the liklihood that, if you win, you can be awarded your legal fees and court costs? It might be cheaper to buy a few weasels.

About attaching files here... I have had good success attaching small files such as MS Word .doc or .docx and Adobe .pdf files. I don't know what the size limit is but smaller ones seem to get through better than larger ones.
NoahA
(Florida)

Posts:205


05/18/2018 6:47 PM  
Well this area has TONS of coyotes, one was spotted 2 days ago going up to someones screened in pools.

Sounds like we just need a mob of people at the next community meeting to demand that the HOA start enforcing rules. I got a new person on board with this, "we are going to get things enforced" movement I started. I just thought it would be worth asking if court cases acutally held up using the Declaration of Covenants" angle.

I'll try a doc file next time , if I have another question.
GenoS
(Florida)

Posts:2349


05/18/2018 7:31 PM  
It may be worth it. We've had a surge of "we need to enforce the rules and violations against the CC&Rs" movement here over the last few years, mainly from new owners moving in who can't believe that almost nothing is enforced. We're no closer to enforcing things today than we were 3 years ago. Talk talk talk. We re-wrote a big section of our Rules & Regulations and the new board has shown no interest in enforcing them. When people ask me when that might start happening I tell them, "When enough homeowners give a damn to do something about it." It's really that simple. We went through all of last year with a president who doesn't "believe in" rules and literally nobody gave a damn. It was a real eye-opener. Not that he was an idiot, but that nobody else really cared. If you have a couple hundred owners and only 30 are clamoring for change then I think you have a hard row to hoe.
NoahA
(Florida)

Posts:205


05/18/2018 7:42 PM  
Well I'm hell bent on informing everyone here about it. I've woke up at least 10 houses and one couple today. So I'm going to go out on the next day it does not rain and go door to door, most people are just happy pretenidng the HOA is doing something, but it sounds like your living in a area with a non-functioning HOA and I guess its a matter of just having to get a mob to storm the meetings deadening dead-weight step down.

Last night at our meeting the former "president" that did 10 years of NOTHING, showed up and the new UN-elected president learned a new word they wanted to wedge in called "Grandfathering in" and the reality is , from 1978 to 1991 to 2004 when all the rules were wrote up there was no time when chickens were allowed.

Well those 2 bozos want to let a couple that are somehow now on the board keep their chickens......this is how silly these residential areas have become. So I'm just going to ask around to see if we can get enough people to demand them to enforce the ruels on the book, but I was hoping the law suit thing would work, that way those with no backbones would go running back to their houses and let people that do have them take over.

Many people that wont get involved say that "since this area was founded in the early 80s the HOA has always struggled to get anything done, but In my way of thinking , just because nothing has worked before, dont mean it cant work well at some point.
GuyM1
(Ohio)

Posts:266


05/19/2018 10:25 AM  
Hi Noah

So if I heard you right you said there were city and county laws on having chicken coups? So I would call them all and see what they will do for you. They may and have the power to have the chicken coup's removed and they can have some very heavy fines and timelines. Now you could send each violater a letter stating the reason for the letter and the time to rectify the issue. You must put a copy of the bylaw that states what you said you found in your doc's. If you have fining setup then make sure you put that in there. Then if that fails to, get your Association Attorney involved and maybe try Arbitration.

Guy
NoahA
(Florida)

Posts:205


05/19/2018 11:03 AM  
County law says you can have 4 chickens per acre.

Our Articles of covenants (deed restrictions) say only maximum of 2 house hold pets. i.e. cats dogs .

So that is where things get annoying as it requires the HOA to have to act, and the HOA president's "teacheres pet" is on the board and their the ones that have the chickens.
NoahA
(Florida)

Posts:205


05/19/2018 11:20 AM  
If the president of the HOA is having the Treasurer write him checks to his name personally.......in my mind that makes him a "professional" not a volunteer so would that help In a law suit.

He refuses to enforce any of the rules, claiming that since for years many of hte rules were not enforced......I finally found someone that will pony up the money, but would it be a good idea to sue him personally? The HOA does not have liability issuance.

I heard that the definition of professional vs volunteer is the minute you accept money from the board, you become a professional. If this is the case than the The federal Volunteer Protection Act of 1997 would not help anyone who is acting as a professional.
GuyM1
(Ohio)

Posts:266


05/19/2018 12:05 PM  
First I would check the Doc's to see if there are rules on having other buildings or building anything on the property. Does the Board have any authority over what can be built on the property like a shed or outbuildings and what is the procedure for a person to get things approved by the HOA or the city? Do they need permits and approvals by anyone including whats in your Doc's?

Why doesn't your HOA have D&O insurance?

Does your HOA have an Attorney? You can talk to the Attorney and tell him the President isn't enforcing bylaws and see what he can do.

Get a free consultation from an Attorney that does Association problems. This would be not associated with the board this would be you and the people that back you to get answers.

If the President is getting paid for services rendered as a volunteer he and the Treasurer would and should be convicted for breaking the law.

Also, in Florida, I think you have a lot of resources that could guide all of you. Google it.

Also, you could try and get the membership to vote the President and Treasure out and get replacements to start enforcing the bylaws. Look in your Docs on how to remove a board member.

The only way I would go after the President would be for Fraud which then I would go to the Attorney General.

Now if the President is getting reimbursed for things he paid for that was for the Association business then he didn't do fraud.
NoahA
(Florida)

Posts:205


05/19/2018 12:10 PM  
We don't have insurance as the dues is really cheap. Also we do have in the Articles of Covenants a "ACC team" but they have not really done any job to speak of for a long time. Also the board does not have a attorney hired to be on hand. The last time they paid a attorney was in 2004.

The jobs their getting paid for is "community functions" but there is one member on the board that is charging a "low hourly wage" to cut the hedges for the front entrance.

I'll have to call around to a lawyer and see what he thinks.

2nd to last meeting the president and vice president said that when they meet for a free consultation the lawyer laughed and said since the HOA has no property and around 2500.00 in the bank account ,that he knows very few lawyers that would bother to sue them as there is not much money to go after.

So the last meeting the President said again he felt the board was pretty much law suit proof. I want to greatly prove him wrong.
GuyM1
(Ohio)

Posts:266


05/19/2018 12:41 PM  
Well then yes to sue the Association won't work and the Attorney is telling the Truth no Attorney will go after an Association if there is no money to go after.

If you can show Fraud against a board member then yes you could sue him personally to recoup the money he stole. That's kind of why Associations have D&O insurance because it leaves them open to lawsuits personally.

I would look on removing him from office...best and cheapest way.

I don't know how many houses in your Association but I would gather as many people I could to vote to remove him or replace him when his term is up. Do you know when his term is up? How does your voting work? 2/3 thirds majority that shows up at the meeting or 2/3 thirds of the total number of members? So if you only have 30 people show up and you have more than 2/3 thirds that would vote to remove him you would be golden if its majority at a meeting not of the whole membership.

AugustinD


Posts:1088


05/19/2018 12:48 PM  
1.
How long have the chickens been present in each of the three lots?

2.
Do your covenants indicate that individual owners may seek a legal remedy et cetera against other individual owners to enforce the covenants?

3.
In the last 20 years or so, the legality of chickens in HOAs or on covenant-restricted land has come up at the appeals court level a few times at least nationwide.
GuyM1
(Ohio)

Posts:266


05/19/2018 12:50 PM  
I forgot something... you can sue your association for not following the Doc's but you and the people would have to pay the Attorney out of your own pockets. Which he may want 10 to 20 thousand dollars for his retainer. So, you could win the suit to force the board to do its duty and some damages but you will pay more than you will win.
GuyM1
(Ohio)

Posts:266


05/19/2018 12:50 PM  
I forgot something... you can sue your association for not following the Doc's but you and the people would have to pay the Attorney out of your own pockets. Which he may want 10 to 20 thousand dollars for his retainer. So, you could win the suit to force the board to do its duty and some damages but you will pay more than you will win.
AugustinD


Posts:1088


05/19/2018 12:54 PM  
Guy, there aren't any damages here. Noah would be suing for injunctive relief. I do not see a judge awarding attorney's fees to the prevailing party, either.
GuyM1
(Ohio)

Posts:266


05/19/2018 1:08 PM  
Hi Augustin

In Ohio you can back in 1992 a member sued the board for not enforcing bylaws and he received a $5000 dollar settlement. The Association had the Insurance pay for the Attorney fees. I don't know Florida law that well but isn't there some arbitration that could help them?

Guy
AugustinD


Posts:1088


05/19/2018 1:41 PM  
Posted By GuyM1 on 05/19/2018 1:08 PM
In Ohio you can back in 1992 a member sued the board for not enforcing bylaws and he received a $5000 dollar settlement. The Association had the Insurance pay for the Attorney fees. I don't know Florida law that well but isn't there some arbitration that could help them?


Do you mean the two parties settled before trial? If so, this is different from a judge awarding attorney's fees. The costs of going to court are so high that insurers are accustomed to paying out settlements, as a matter of ensuring insurance company profitability. I think "nuisance suits" is the appellation used by insurers working with corporate America (of which HOAs are a small part).

I know it is entirely possible that Florida statute or the HOA's governing documents state that the prevailing party either may (or shall) be awarded attorney's fees. Nationwide judges do not like doing this, as it promotes litigation in already overwhelmed courts. But it sure helps if statute or the governing documents already provide for it. My HOA's CC&Rs and my state's statutes have a paragraph on the point (though it is a "may award" statement, not a "shall award..." statement). It tends to cause people to think twice before suing my HOA, as the plaintiff could be ordered to pay the HOA's attorney's fees.

There was a chicken case in New Mexico not long ago. The covenant is somewhat different from Noah's, so Noah should not read anything into the outcome. The chicken owners won at the appeals court level. But there was no award of attorney's fees to them. Each side had to bear its own costs.

From what I have seen, if the HOA did something truly outrageous, then a judge might penalize the HOA and award the prevailing party's attorney's fees. But I do not think this situation rises to this level. If the chickens have been present a long time, Noah may have a hard time enforcing this covenant. "Abandonment of covenants" issues will arise.

I suppose arbitration or mediation is always an option. Here, I think any competent attorney Noah would hire would start with letters of demand to the three lot owners. The attorney might go after the HOA, too. It depends on the details here.

Guy, if Noah sues the HOA to get it to enforce, then I agree that the Board is free to hire an attorney to defend itself and then assess the owners for the costs. Though from my reading, I think this would be foolish on the HOA's part. What Noah says about favoritism is damning.

Noah, I see you mention that state law says you can sue the individual owners to enforce the covenants.
NoahA
(Florida)

Posts:205


05/19/2018 1:56 PM  
The Covenants say this.

19.01 REMEDIES FOR VIOLATIONS
In the event of a violation, breach, default or noncompliance of any of these
restrictions by any person or concern claiming by, through or under the
successors, or by virtue of any judicial proceedings, the successors and assigns,
and the lot or tract owners, or any of them jointly or severally shall have the right
to proceed at law or in equity to compel a compliance with the terms hereof or to
prevent the violation or breach of any of them. Upon incurring attorney fees
and/or court costs due to said violation, breach, default or noncompliance of the
terms or conditions contained in these deed restriction then the prevailing party
shall be entitled to recover all reasonable attorneys fees and court costs, either
upon prevailing in a court of law or upon cure of any violation, breach, default or
noncompliance by the other party to settlement or compliance.

Exactly word for word. this is registered with the county under the deed restrictions as Amended and Restated Restrictions that run with the land.

I was only told that "any lot owner can sue any other lot owner personally" from this site. I don't know where that poster got that info, but I just figured this site is a great source, so I did not look into FL law to see if that really was the case.
GuyM1
(Ohio)

Posts:266


05/19/2018 2:12 PM  
Florida Homeowners Association Statutes

Chapter 720

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html
GenoS
(Florida)

Posts:2349


05/19/2018 5:22 PM  
Posted By NoahA on 05/19/2018 11:20 AM
The HOA does not have liability issuance.

Then you have much bigger problems than chickens and enforcement of your rules.
GenoS
(Florida)

Posts:2349


05/19/2018 5:34 PM  
Posted By NoahA on 05/19/2018 1:56 PM
I was only told that "any lot owner can sue any other lot owner personally" from this site. I don't know where that poster got that info, but I just figured this site is a great source, so I did not look into FL law to see if that really was the case.



It comes from FS 720.305(1) which states:

Posted By FS 720.305(1)

Each member and the member’s tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against:
(a) The association;
(b) A member;
(c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and
(d) Any tenants, guests, or invitees occupying a parcel or using the common areas."



It only applies if your HOA is, in fact, governed by Chapter 720 of the Florida Statutes.
BenA2
(Texas)

Posts:531


05/19/2018 5:57 PM  
Posted By NoahA on 05/18/2018 5:14 PM
I am tired of having to ask the HOA to enforce the rules around here.

What is the % of suing someone to get a court order to remove chicken coops that have roofs (require permit for the county) of which they did NOT get a permit for, and they have chickens in their yard of which breaks the rules which are listed in the Deed Restrictions as the Covenants, specially saying.

8.01 PETS
No pets shall be maintained or kept on kept on any portion of the property,
including within any dwelling unit, other than common household pets such as
cats, dogs, goldfish, tropical fish and the like, and such birds as canaries and
parakeets. No animals, including any of the above, may be kept, bred or
maintained for any commercial use upon the property or within a building or
structure. In any event, no more than two (2) pets shall be maintained within the
boundaries of any lot.

Since this is in the Delcarations of Covenants with the county..

Would this be a court case I could win? There are 3 homes with chickens and I want all of them gone.

This is FL so you know its a loopy state with lots of wackos. (Yes I am originally from FL so I'm saying that with authority).

Would this be a waste of money as the statues say that any homeowner can enforce any other homeowner to follow the rules in court?

Any thoughts about this would help.

Also for this "message attachments" no files seem to ever let me attach.



BenA2
(Texas)

Posts:531


05/19/2018 6:07 PM  
If there were a clear violation then it would be worthwhile if it is worth the risk to you. The risk being that there is always a chance you will lose. I doubt you can sue because they did not get a county permit. Usually that would be up to the county to enforce.

I don't see a violation under the restriction you quoted, unless the chickens are being kept as pets or for commercial use. There are three clauses:
1. Only certain pets are allowed which does not include chickens.
2. No animals for commercial use.
3. No more than 2 pets.

It clearly says you cannot have chickens as pets and cannot have any animal for commercial use. Keeping them for any other use is not prohibited.
GuyM1
(Ohio)

Posts:266


05/19/2018 6:09 PM  
Noah, you made this statement:

The jobs their getting paid for is "community functions" but there is one member of the board that is charging a "low hourly wage" to cut the hedges for the front entrance.

Thing is if this guy cut off his hand who do you think he would sue? Of course, the Association and when the Association lost Everyone would have to pony up their share to pay the 5 million dollar judgment and that would come out of your pocket. Geno is right you need to get Insurance for the Association.

You need to remove old President and take that job and start putting an Agenda together and I would start by protecting the Association with Insurance then start cleaning up the violations but there may be other important things that need to be addressed.

You may need an Attorney to make sure your Association is compliant with the state laws.

Any work being done should be by a registered, bonded, and insured contractor to protect the Association.

In Ohio, we must have D&O insurance its law.

NoahA
(Florida)

Posts:205


05/19/2018 6:47 PM  
Lets play devils advocate. If I run for a board position, what would be the problems I would face being on the board WITHOUT liability insurance? Maybe I DONT want to be on the board after all? Or where could I look at examples on what could happen?
NoahA
(Florida)

Posts:205


05/19/2018 6:48 PM  
Sounds Good for info I'll pass that on to other people who are trying to help me gut the current gang that have hijacked this board.
NoahA
(Florida)

Posts:205


05/19/2018 6:49 PM  
The couple is claiming they have 3 pet chickens. So that is why they need to go.
NoahA
(Florida)

Posts:205


05/19/2018 6:50 PM  
Yea I agree, that guy should not be working up there, as he would do exactly that. He uses hedge trimmers and picks up heavy signs.
NoahA
(Florida)

Posts:205


05/19/2018 6:52 PM  
For some reason , the current prsidnet reads from both the 617 and 720 but mostly quotes form the 720.

I'm not sure what I would have to loook thru to see which one should be the one to use. We are a not for profit corporation. There is a Articles on Incorporation paper, but I dont think it stipulates which one to use.
NoahA
(Florida)

Posts:205


05/19/2018 6:59 PM  
Yes there is no by laws, and in the articles of covenants it says that if anyone vacates their position they could appoint someone to hold office TIL NEXT REGULARY scheudled voting time.

The current president was at a meeting that was not publicized (breaking a state statute) did not tell anyone about the meeting excetp for the board members that showed up.
617.0822 Notice of meetings.—
(1) Unless the articles of incorporation or the bylaws provide otherwise, regular meetings of the board of directors may be held without notice of the date, time, place, or purpose of the meeting.
(2) Unless the articles of incorporation or the bylaws provide for a longer or shorter period, a special meeting of the board of directors must be preceded by at least 2 days’ notice of the date, time, and place of the meeting. The notice need not describe the purpose of the special meeting unless required by the articles of incorporation or the bylaws.
History.—s. 48, ch. 90-179.

this took place on Sept 14 2017.......of which the former president announced he would step down, and the vice president "appointed the new president til Dec 31 2019", This would effectively make him a dictator from Sept 14 2017 TIL Dec 31 2019. The regular scheduled voting time is middle of October.

He should of kept office til Oct 2017 and had a official vote. There are no bylaws that have any stipulations that would allow another board member to appoint someone for a longer than usual term. The normal term limit for president was 2 years.

I also feel they borke a state statue doing that as

617.0809 Board vacancy.—
(1) Except as provided in s. 617.0808(1)(f), any vacancy occurring on the board of directors may be filled by the affirmative vote of the majority of the remaining directors, even though the remaining directors constitute less than a quorum, or by the sole remaining director or, if the vacancy is not so filled or if no director remains, by the members or, on the application of any person, by the circuit court of the county where the registered office of the corporation is located.
(2) Whenever a vacancy occurs with respect to a director elected by a class, chapter, unit, or group, the vacancy may be filled only by members of that class, chapter, unit, or group, or by a majority of the directors then in office elected by such class, chapter, unit, or group.
(3) The term of a director elected or appointed to fill a vacancy expires at the next annual meeting at which directors are elected. Any directorship to be filled by reason of an increase in the number of directors may be filled by the board of directors, but only for a term of office continuing until the next election of directors by the members or, if the corporation has no members or no members having the right to vote thereon, for such term of office as is provided in the articles of incorporation or the bylaws.
(4) A vacancy that will occur at a specific later date, by reason of a resignation effective at a later date under s. 617.0807 or otherwise, may be filled before the vacancy occurs. However, the new director may not take office until the vacancy occurs.

So basically 2 statutes far as I was concerned were that Sept night, and when OCT came and went a statute was broke by not letting anyone run for president. And if he does not step down than means Oct 2018 will break it again as that will be 2 times we did not get to vote. Then Oct 2019 as he will be dictator til Dec 31 2019

This is just insanity. I was told I should call the police to inform them about these , but I think they would just say it is not their "jurisdiction"
GuyM1
(Ohio)

Posts:266


05/19/2018 8:05 PM  
Well for one the Police would tell you it is a civil matter to take it to court.

You are right that the temporary director only goes to the next annual meeting and a vote to keep him or if there are other nominations then a vote between nominees takes place. That's something you could go to court over to make a proper election to take place.

On the subject of meetings if it is a board meeting they may not need to notify members. Ohio is this way but our member meetings must have notifications sent to the membership.

You need to have some people here from Florida tell you if D&O insurance is mandatory under state law.
GuyM1
(Ohio)

Posts:266


05/19/2018 8:11 PM  
I found this in another discussion.

720 replaced 617 in the year 2000. Your association may have its original Articles of Inc filed under 617 but if you read "history" on the bottom of any 720 Statutes, you will see that there is referral to 617. CC&Rs and Bylaws should follow what 720 says.

617 was for all Not for Profit corps when originally written and there were no parts of it specifically designed for HOAs until 2000 when 720,(HOAs) 718 (condos) and 723 (mobile homes) were written.
NoahA
(Florida)

Posts:205


05/19/2018 8:14 PM  
Since I told them about it, they been posting like crazy when they have a meeting, so if it not a "official fl rule" , it is here now lol

I did a survey of a entire street, and it took ALL day. I talked to one guy for 3 hours explaining how they MUST start enforcing the rules as his wife's parents were the founders of this area, and she was crying on the phone when he was telling her all the wreckage going on around here.

I did get 4 new people on my campaign to get this place on track. So next meeting should have about 35 people. I was able to motivate people to broke the record for total people to show up a a officer meeting. For 40 years just the board members showed up . most meetings had 8 people. They have had over 30 for the last few meetings.

I might not know all this HOA stuff, but I sure as hell can motivate people get come to meetings to demand some enforcement around here.
NoahA
(Florida)

Posts:205


05/19/2018 8:16 PM  
Well that is good cuz 720 is what my HOA book revolves around and I been quoting things from that at meetings.
NoahA
(Florida)

Posts:205


05/19/2018 8:35 PM  
Thanks for showing me where that idea came from.

I swear I wish there was a Lawyer 101 book that just covered this, as I would read it and master it, but as laws change, it would be a never ending job most likely.

GuyM1
(Ohio)

Posts:266


05/19/2018 8:39 PM  
Insuring Honesty and Integrity
Two Must-Have Insurance Policies for Boards
BY GEORGE LEPOSKY 2013 AUGUST INSURANCE

Of the many thousands of dollars a large condominium, co-op, or homeowners association may spend each year on insurance, two policies that typically cost less than five percent of the total are two of the most vital: crime insurance (often called fidelity coverage) and directors and officers liability insurance (often called simply D&O).

Crime insurance “protects an association against theft or misappropriation of its funds by people trusted to handle them,” explains Paul Mack, president of Mack, Mack & Waltz Insurance Group, Inc. in Deerfield Beach, and D&O insurance protects board and committee members against errors and omissions while fulfilling their duties.

Basically, “It’s 'oops' insurance for the volunteer board and committees, and the association itself,” says Barry Scarr, president and principal agent of Scarr Insurance Group with offices in Sarasota, Seminole and Ft. Lauderdale. “Crime and D&O insurance are separate policies—and an association really needs both.”
NoahA
(Florida)

Posts:205


05/19/2018 8:45 PM  
Well to give you a idea what kinda budget these people are dealing with its 15 dollars a YEAR or 20 for a family.

So that is 190 lots of which only 1/2 pay. Only half pay because its "volunteery dues".

It's very wierd, as most places of 100s a month or they dont have a HOA......that is probably the reasons why we have the issues that are here.
NoahA
(Florida)

Posts:205


05/19/2018 8:52 PM  
Chickens have been here 1 1/2 years. Only talking about pets are in the rule saying " you can have 2 pets maximum , dogs cats fish......

No court cases about chickens as this place has never had people wanting them for 40 years. In the old days the people that were keeping on top of things said , if we don't keep the rules enforced whats next? they will want chickens here or something crazy.....so the very joke that was made in the 80s is reality now.
BenA2
(Texas)

Posts:531


05/19/2018 9:44 PM  
Posted By NoahA on 05/19/2018 8:45 PM
Well to give you a idea what kinda budget these people are dealing with its 15 dollars a YEAR or 20 for a family.

So that is 190 lots of which only 1/2 pay. Only half pay because its "volunteery dues".

It's very wierd, as most places of 100s a month or they dont have a HOA......that is probably the reasons why we have the issues that are here.



Is it possible that, with such low assessments, there is not enough money to enforce the restrictions? At the very minimum, the board would need to consult with an attorney before filing any suit. Not doing so would be irresponsible.

There are times when the developer files such sloppy CC&Rs or limits the assessments so much that it's difficult for an HOA to operate effectively.

As for the chickens being pets, even though the owners said they were pets, after talking to an attorney they will probably turn into a source of eggs for the family. The restriction is just not written well and has a huge loophole. How sure can you be that a judge would rule in your favor? I think if I was a member of the HOA I would suggest you file the suit and risk your money.
NoahA
(Florida)

Posts:205


05/19/2018 9:49 PM  
Well they said there was 8000.00 in the bank now that is PLENTY for a lawyer.
GuyM1
(Ohio)

Posts:266


05/20/2018 4:07 AM  
Do the people with chickens pay their dues?

I think the first thing to do is get the Association back in order. By getting an Attorney to look at everything and set the Association back on the right path. Like is the Association still in good standing with the state as a non-profit corporation? Are your documents still enforceable and how to enforce them legally. In Ohio we have procedures we must follow before you can sue someone for the violation. You said your Association had or should have an ACC committee? If you don't you may want to have the board take that responsibility or forming one. You know the Association board must follow the Documents and the State law to be able to do things right.

I think that jumping on starting out by suing someone for chickens that could backfire in your face would be an irresponsible act by the Board. Don't forget the other side can countersue the Association to which the board has no protection if they lose. This is why you need proper insurance in place before doing anything. Just remember this could get costly to the Association Board members personally. Because as you said the dues are voluntary so where would the extra money come from if you went over 8 thousand dollars? If dues are voluntary I'm guessing you may not be able to assess anyone to cover any costs.

This is why I would start by getting the Association on solid ground. You need to make the dues mandatory and start collecting them. This will help all members know that the board is doing this for all the members. Then I think the violations would be easier to enforce which people would see the board as being serious about doing the right thing for all. If I lived there and wanted chickens I would get chickens because I would look at the board as a joke. Plus I would countersue and make the Association spent all its money and have to back out of the suit which would make the Association liable to pay my Attorney fees.

Seems your getting the backing to get the house in order. But during this time start sending letters out to the membership and tell them the board is acting in the best interest of all and tell them what you're doing. Like getting Insurance to protect the Association, by collecting the dues from everyone, and the enforcing of any violations. this also may get more people behind you for support.

Good Luck
NoahA
(Florida)

Posts:205


05/20/2018 4:47 AM  
Yes the people with chicken , of which I found out ONe more house yesterday that has them do pay their dues.

I don't follow the idea they had here. In the Articles of the Covenants it states that "ever lot or parcel owner of the area is automatically a member of the association"

but in the "membership guide book" it says they request people to donate 15.00 per single lot and 20.00 / family.

I've talked to people who lived here and they said when this area started in 1978 there was NO dues, and when the developer sold the management to another company in 1986 that is when a 5.00 / year dues was "requested". so there is NOT mandatory dues, but In my mind , dues payment does not matter, as every land or lot owner is a member the second you buy property here.

It does say in the by laws that if someone does not pay their dues the penalty is to not be able to vote.

So that is also why many people don't pay, and they also don't vote.

I'm beginning to believe the HOA has really got their hands full and really needs to spend money fast to get a lawyer as there are more and more people demanding satisfaction for them to act, but the president and former president that shows up to meetings have a major anxiety complex in fear of counter suits. and maybe that is for a good reason.
MelissaP1
(Alabama)

Posts:7611


05/20/2018 5:44 AM  
Again you do understand suing your HOA is suing yourself and your neighbors? It's a fact. A fact that one has to accept before moving on with their actions. This is NOT to discourage anyone pursuing a lawsuit but to point out there are consequences for your own actions as well as others.

The board the money could be spending on hiring a lawyer is EVERYONE'S money. They don't have enough money? Then they have to raise and collect a special assessment. How does one collect a special assessment? They have to have a majority vote of the members/owners to approve the special assessment. So those who are already not paying their dues do not have a vote. The burden then of collecting money then comes from those already paying to agree to pay more. Do you see anyone that happy now to start that ball rolling???

You could sue these people individually if you wanted for their HOA violation and not through the HOA. Not use HOA money. I have seen posters try this approach in the past with sheds or other offenses. The whole burden is on you to get what you want and not bring the whole neighborhood into it.

Overall, think most are trying to warn you of the consequences of your decision to sue is not a good one. Plus the HOA gets involved in a lawsuit that doesn't favor well for them in many ways. It can effect property values, raise refinance rates, and the ability to sell one's property. For a HOA to involve itself in a lawsuit goes much further than just the courthouse. Do you see anyone rushing in to buy property involved in a chicken war?

Former HOA President
NoahA
(Florida)

Posts:205


05/20/2018 5:48 AM  
The HOA here now has the president where he is very timid.

Now there is a mob of people demanding enforcement, and he says "sometime in the future he don't know when but he will get around to it to talk to a lawyer" so now were back to the , well get around to it when we get around to it stuff.

I think there should be a IQ test, and a oath that they will have the backbone to enforce the rules. They have done NOTHING to get 1/2 a mobile home that is behind someons house.

This are has ZERO trailers and someone for some reason has 1/2 a double wide parked bheind his house and it appears someone is parked by it living in it.

Yes i know this is a county code issue and I have reported it personally and I heard form the county worker they will be looking at MONDAY as in 1 day away.....but why I have to do this NOT on the board is just plain ridiculous.
AugustinD


Posts:1088


05/20/2018 7:12 AM  
-- That the chickens have been present only 1.5 years is good. If say, six or more years had passed, then the chicken owners have a good probability of winning in court right through the appeals level.

-- Sending a letter of demand will run around $500 to $1000. Outside of New York, Chicago and the big California cities, expect that just to file a lawsuit in court will cost about $5000. I do not think $8000 is nearly enough.

-- Times change. Arguing that chickens are pets has gained serious traction nationwide with the courts in HOA chicken disputes. I think your covenants could be interpreted to permit two pet chickens per lot.

-- If you want the HOA to do this, then continue down the path of replacing a majority of the current board. If the current board does not want to do this (and is also showing favoritism), and if I were in your shoes, I would not waste my energy arguing with them about it.


NoahA
(Florida)

Posts:205


05/20/2018 7:23 AM  
Me personally are more worried about all the people shootoing on 1 acre lots & RV's that are unreigstered and peopel living in them. These are county codes, but all our special HOA rules would make the place 10 times better if enforced.

I hope a lawyers office can guide the HOA right, as this place thru the 70s 80s and 90s was so good that our reputtaiton still holds to this day, despite most knowing that the HOA is a paper tiger.
BenA2
(Texas)

Posts:531


05/20/2018 7:51 AM  
Posted By NoahA on 05/20/2018 4:47 AM
Yes the people with chicken , of which I found out ONe more house yesterday that has them do pay their dues.

I don't follow the idea they had here. In the Articles of the Covenants it states that "ever lot or parcel owner of the area is automatically a member of the association"

but in the "membership guide book" it says they request people to donate 15.00 per single lot and 20.00 / family.

I've talked to people who lived here and they said when this area started in 1978 there was NO dues, and when the developer sold the management to another company in 1986 that is when a 5.00 / year dues was "requested". so there is NOT mandatory dues, but In my mind , dues payment does not matter, as every land or lot owner is a member the second you buy property here.

It does say in the by laws that if someone does not pay their dues the penalty is to not be able to vote.

So that is also why many people don't pay, and they also don't vote.

I'm beginning to believe the HOA has really got their hands full and really needs to spend money fast to get a lawyer as there are more and more people demanding satisfaction for them to act, but the president and former president that shows up to meetings have a major anxiety complex in fear of counter suits. and maybe that is for a good reason.



As you are finding out, every association is different. You can have covenants without an association and you can have an association with no dues/assessments.

There is nothing preventing the association from enforcing the covenants but, in my opinion, you are all going to have to kick in a lot more money. $8,000 is probably plenty of money to get an attorney's opinion but a lawsuit can easily get into the tens of thousands of dollars.

Most lawsuits, depending on your state, start in low level courts where you may not need an attorney. If you lose at the first level, it probably won't cost much. If you win at the first level and the other side appeals, then you have no choice but to go to the next level. In theory, you never have to use an attorney but the higher level the court, the more complicated things become. Even if you don't have an attorney represent you, you will probably have to pay the other side's attorney fees if you lose in the end.

All I'm saying is that you have to weigh the risks of losing with what you are getting out of it if you win.
BenA2
(Texas)

Posts:531


05/20/2018 8:04 AM  
Posted By AugustinD on 05/20/2018 7:12 AM
Times change. Arguing that chickens are pets has gained serious traction nationwide with the courts in HOA chicken disputes. I think your covenants could be interpreted to permit two pet chickens per lot.



The issue here is that if the chickens are NOT pets, there is no violation of the covenants. The fact that the owners initially claimed they were pets becomes almost irrelevant in court. The judge may consider it but what matters is whether or not he believes they ARE, in fact, pets, and I think it is very unlikely that a judge would rule that chickens kept in a coop are pets.
NoahA
(Florida)

Posts:205


05/20/2018 8:15 AM  
Would it matter if the 1978 rules say NO FARM ANIMALS NO LIVESTOCK be any heop.

Back in the day it was not even a thought that chickens were "pets".

Now a days people wnat pigs, goats and chickens for pets.

As these chickens are NOT household pets i.e. living INSIDE the house....that to me means their OUTDOOR animals as they are in a chicken coop.

I will be strongly trying to force the HOA to do a revote to stipulate NO FARM ANIMALS of any kind.
AugustinD


Posts:1088


05/20/2018 8:22 AM  
Posted By BenA2 on 05/20/2018 8:04 AM
The issue here is that if the chickens are NOT pets, there is no violation of the covenants. The fact that the owners initially claimed they were pets becomes almost irrelevant in court. The judge may consider it but what matters is whether or not he believes they ARE, in fact, pets, and I think it is very unlikely that a judge would rule that chickens kept in a coop are pets.


I get how you are parsing the covenant, and I think this is an interesting take. It sounds like you are saying: If the chickens are not pets, and are not for commercial use, then they are just animals co-habitating with the owner on the property. You could be right, but just my opininon: On this point, I think a court would say co-habitating without a commercial purpose means the chickens are pets.

I suppose the chicken owners could make your argument (meaning there are no covenant restrictions whatsoever on the chickens) as well as my argument (restricting the owners to two pets, in this case, chicken pets).

Here are two recent court opinions where the argument that chickens are pets appears to have been quite persuasive. Both courts ruled in favor of the chicken owners.

https://law.justia.com/cases/new-mexico/court-of-appeals/2016/33-850.html

https://law.justia.com/cases/new-york/appellate-division-fourth-department/2014/164-ca-13-01123.html

I do not think it matters whether the chickens are kept in coops or not.

I could be wrong. Importantly, the lower courts in both these cases ruled in favor of the HOAs. This means this could be one expensive battle. I think for the first case above, news reports say the HOA spent on the order of $100,000.


AugustinD


Posts:1088


05/20/2018 8:27 AM  
Noah, if your HOA has one acre lots, you have to be prepared for this being an argument favoring the chicken owners. With lots this big, I would not be optimistic about a new covenant disallowing farm animals passing muster with the courts, either.

Depending on your covenants' wording, the trailer issue of which you speak may be more likely to get a ruling in your favor. Case law has a lot of instances treating trailer, manufactured home, and similar cases at HOAs.
NoahA
(Florida)

Posts:205


05/20/2018 8:34 AM  
in 1978 the rules and founders had it say

1978 RUles
Except for no more than 2 dogs or 2 cats, and other household pets
no animals, livestock or poultry of any kind shall be raised, bred
or kept on any lot.

In a newsletter in 1986 it says
We had to decline a resident from building a backyard aviary.
This to me implies not only chickens are not allowed, BIRD CAGES are not allows in backyards.

1991 rules say

8.01 PETS
Mo pets shall be maintained or kept on any portion of -the
property, including within any dwelling unit, other-than cocanon
household pete such as cats, doge, goldfish, tropical fish and
the like, and such birds as canaries and parakeets. Ho animals;
including any of the above, may be kept, brad, w maintained for
any comnercial use upon the property or within ar building" or
structure. In any event, no more than two (2) pets shall be main-
tained within the boundaries of any lot.

2004 Rules

PETS
No pets shall be maintained or kept on kept on any portion of the property,
including within any dwelling unit, other than common household pets such as
cats, dogs, goldfish, tropical fish and the like, and such birds as canaries and
parakeets. No animals, including any of the above, may be kept, bred or
maintained for any commercial use upon the property or within a building or
structure. In any event, no more than two (2) pets shall be maintained within the
boundaries of any lot.

Unless someone says "common household pets are CHICKENS".........i dont see any chickens any anyone's house. All 4 houses have htem outside in coops with roots that were never paid for by the county for a permit.

But if I'm right about if a rule is too vague, they would look at Previously written rules.....it should be clear that this area never was and never has been for chickens.

Even when one couple moved in they said they did not mind the rules except for the chickens of which they asked the present and he siad "Even thought its agasint the rules Ill talk tot he neighbor and see if he minds, the neighbor said no.....so the president said "why not".

That verbal allowance is not legal ......he did not run it by the board, or the community.

Also without a doubt it says NO more than 2 pets...well that same couple has 2 indoor cats and 3 outdoor chickens.....that is breaking the rule period in that perspective.
NoahA
(Florida)

Posts:205


05/20/2018 8:36 AM  
CORRECTED verison from above.....and yes the 2004 rules with the first line butchered is exactly how it is wrote, and clearly some type of typo by a "professional" lawyer.


in 1978 the rules and founders had it say

1978 RUles
Except for no more than 2 dogs or 2 cats, and other household pets
no animals, livestock or poultry of any kind shall be raised, bred
or kept on any lot.

In a newsletter in 1986 it says
We had to decline a resident from building a backyard aviary.
This to me implies not only chickens are not allowed, BIRD CAGES are not allows in backyards.

1991 rules say

8.01 PETS
No pets shall be maintained or kept on any portion of -the
property, including within any dwelling unit, other-than common household pets such as cats, dogs, goldfish, tropical fish and the like, and such birds as canaries and parakeets. Ho animals;
including any of the above, may be kept, brad, or maintained for
any commercial use upon the property or within ar building" or
structure. In any event, no more than two (2) pets shall be main-
tained within the boundaries of any lot.

2004 Rules

PETS
No pets shall be maintained or kept on kept on any portion of the property, including within any dwelling unit, other than common household pets such as cats, dogs, goldfish, tropical fish and the like, and such birds as canaries and parakeets. No animals, including any of the above, may be kept, bred or maintained for any commercial use upon the property or within a building or structure. In any event, no more than two (2) pets shall be maintained within the boundaries of any lot.
AugustinD


Posts:1088


05/20/2018 8:50 AM  
Posted By NoahA on 05/20/2018 8:34 AM
But if I'm right about if a rule is too vague, they would look at Previously written rules.....it should be clear that this area never was and never has been for chickens.
...
Also without a doubt it says NO more than 2 pets...well that same couple has 2 indoor cats and 3 outdoor chickens.....that is breaking the rule period in that perspective.



If what you quoted are covenants (and not board-written rules), then vague covenants are interpreted against the HOA and in favor of free enjoyment of the land. In the 2016 New Mexico chicken case, the HOA's covenants had this line:

"No animals, birds[,] or poultry shall be kept or maintained on any lot, except recognized household pets which may be kept thereon in reasonable numbers as pets for the pleasure and use of the occupants but not for any commercial use or purpose."

The appeals court ultimately disregarded the disallowance of poultry and found the chickens to be pets. (This surprised me. I thought the HOA was going to win. No. The HOA got creamed on appeal. It was a lesson in free enjoyment of land and vagueness of covenants for me.) The appeals court also considered that the setting was rural (with among other things, large lots).

I would be a bit concerned that, with such large lots, the court might even disregard the two-pet limit. I would have to read your covenants to see if I could glean more. Though I doubt I could.

I think I would spend more time getting the trailers and RVs off the lots.
NoahA
(Florida)

Posts:205


05/20/2018 8:53 AM  
Well today I agree 100% Gotta focus on gun shooting back yard targets, RV's , browk down vehicles , people living in their drive ways... sounds like covenants are not as cut and dry as I thought.

NoahA
(Florida)

Posts:205


05/20/2018 8:58 AM  
I was told that COvenants are legal agreements of giving up a right.

So I guess it just boils down to having a lawyer sit down , and I hope I'm at that meeting cuz I'm the type that If something is not explained in great detail, it annoys me not knowing allt he hows and whys....

I just wish people if they wanted to live on a farm.......they would move to farm land and then they could act like farm animals and nobody would care.
MelissaP1
(Alabama)

Posts:7611


05/20/2018 9:05 AM  
Why don't you hire your own lawyer instead of insisting the HOA does it? Not every member wants their money to be used for a lawyer conversation like you do. I think you need to consult an attorney and use your own dime. That 8K you keep talking about sounds like it could be reserves spending which can NOT be used for such uses. If it's not in reserves account, then it's being used for paying the HOA's bills.

I kind of feel your hiding behind the HOA. Taking stabs and then quickly running behind the "HOA shield". It seems to be your excuse is that your board members are "weak, timid, and don't do anything". Well if your half as strong as you say you are, then get on the board or hire your own lawyer.

Former HOA President
NoahA
(Florida)

Posts:205


05/20/2018 9:09 AM  
Attached is our Covenants, in case anyone wanted to see how bad they were.

Attachment: 152094245771.doc

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