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Subject: Can HOA/ARB Rescind authorization to build?
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GaryH8
(Florida)

Posts:9


06/09/2018 2:11 PM  
Can an HOA legally rescind authorization to build a structure 4 days after authorization* was obtained by a member? How has the court ruled in similar situations?

I will try to be brief using points

- A Homeowner started to build the foundation of a structure that was partially on their property and partially on common property that had to be kept free from building
- No county permit or HOA permission was applied for
- The HOA asked him to remove it. The homeowner did not comply
- The HOA lawyer sent a cease and desist 10 days after the Homeowner started to build it
- The homeowner was told what he was building was against the covenants, listed the violations and instructed the homeowner to remove it
- The homeowner did not comply but also did not continue with construction
- 1 week later the Homeowner drafted an approval letter and was able to get one HOA director to sign it (the director was one of the developers/investors of a pre-turnover HOA) and at that same time, the director appointed a neighbour/friend of the Homeowner to the ARB and all 3 individuals signed the approval letter (Homeowner + Director + Newly appointed ARB member)
- 4 days later, all 3 HOA directors signed and sent a letter rescinding the previous authorization to build the structure. No building took place in those 4 days. It was explained that the director made an error and they listed all the covenants that were in violation. The HOA also offered the homeowner 30 days to reapply with plans that complied with the covenants
- The homeowner did not appeal and did not reapply. The county forced him to remove the structure as he did not have a permit to build it.
- Shortly thereafter, the developer controlled HOA amended the covenants and removed the ability to have this type of structure. These structures were initially contemplated in the community but after a decade, no homeowners had applied to have one and due to this dispute with the Homeowner, the HOA decided that it didn't want anyone to have these types of structures (which had been discussed within the community previously but was never acted on. It was later voted on after Turnover and community still doesn't want this type of structure).

- The director didn't/doesn't understand the covenants that were in violation
- The newly appointed ARB member is a licensed contractor
- The Homeowner who was in violation of the covenants is also a licensed contractor
- The covenants are clear that the ARB is appointed by a board vote with a minimum of 3 people with a minimum of 2 votes/majority of ARB to approve requests)

1 year after this incident, the Homeowner filed a lawsuit

Does the HOA have the ability to rescind authorization to build, even authorization that was not done appropriately for a structure that is clearly in violation of the covenants?
(I tried to be brief)
GenoS
(Florida)

Posts:2430


06/09/2018 3:18 PM  
What do your documents say? If they say the Board of Directors has the final say then the Board can deny the application. There's nothing to be "overturned" if the original approval was invalid.

Also, there are possible legal consquences that go beyond what's in an ARB or board's ability to approve where the common property is concerned. You want to put a shed on your property? Depending on the documents and approval process, that might be allowed or not. You want to put a shed on the common property? That's a whole other ball of wax.
AugustinD


Posts:1126


06/11/2018 7:38 AM  
-- It appears to me that the approval letter the homeowner drafted does not comply with any procedure for getting approval. I would consider it null and void.

-- Furthermore, no building took place between the faux "approval letter" and the next letter from the Board saying there was no authorization. I think a court would say the owner is out of line to keep building.

-- I think the HOA is on good legal ground. Though at the trial court level, things can go either way. Trial court judges often are not homed in on the fine points of the law. An appeal may be necessary.
CjC
(Maryland)

Posts:138


06/11/2018 8:59 AM  
DId homeowner ever get a permit? Even if HOA approved, there was no permit to build.
GaryH8
(Florida)

Posts:9


06/11/2018 9:09 AM  
County did not provide a permit. The county issues about 4 violations (building without a permit) and then ordered the owner to remove the partially built structure.
JanetB2
(Colorado)

Posts:4151


06/12/2018 2:10 PM  
What is the grounds he is suing for if the County is the entity who made him remove the structure? If it is due to having to remove the structure then the HOA if named could just ask for the court to drop the case due to they were not the entity which required the removal. After all the HOA cannot violate or override the local County building ordinances.
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Forums > Homeowner Association > HOA Discussions > Can HOA/ARB Rescind authorization to build?



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