Rules not in the covenants

I have a question I cannot seem to find a clear legal answer to online... I live in Florida if that matters.. My HOA has NO rules regarding landscaping. Yet our HOA still sends warning letters stating owners are in violation of the covenants, for random things like weeds in the yard, dead grass, tree trimmed height, etc. I have sent emails to the board and management company asking where these specific rules are documented, and I have gotten a few different responses, the last one from the management company, that states

"I can assure you that although specifics of community landscaping standards may not be detailed in the governing documents, such as fertilizing, treating for insects, weeding, mowing and edging the lawn, the courts have consistently upheld the enforcement capability of HOAs for these common community landscaping standards."

I asked again, where these rules are detailed, I just find it confrontational and mean spirited to tell someone they are in violation of rules they were never given.

Can someone tell me the legality of such violation letters? Do they have ANY authority outside of whats in the covenants?

Well, I don't know about your "governing documents," but ours say the following:

"Section 6. Duty to Maintain Lot.

(b) From and after the date construction of a single family residence on a lot is started, it shall be the duty of each lot owner to keep the grass on the lot properly cut, to keep the lot free from weeds and trash, and to keep it otherwise neat and attractive in appearance. Should any owner fail to do so, then Developer may take such action as it deems appropriate, including mowing in order to make the lot neat and attractive, and the owner shall, immediately upon demand, reimburse Developer or other performing party for all expense incurred in so doing, together with allowable statutory interest, and Developer shall have a lien on that lot and the improvements thereon to secure the repayment of such amounts. Such lien shall be subordinate to any first mortgage thereon."

If you have your Deed Covenants, Conditions and Restrictions, it might be to your benefit to read them thoroughly yourself to see if there might be anything similar in there.

It would be great if they would send you that covenant, however, they are not responsible for your reading and learning your own CC&Rs. Their role is to point out when an infraction or violation exists so that the homeowner can correct it.

We would normally provide that information on the notice sent to the homeowner. However, it would be a courtesy for us to do that; we're not obligated or directed to.

So. It would be nice to know what your governing documents say about that. Do you have them? Can you read them? When you read them, are they understandable? (that's not a snark, that's a legitimate question. I have to admit there are some passages on our own documents that don't make sense!)

Let us know what you find. I'd be interested.

Charles,
My question to you is do you have your complete set of documents? I mean the Protective Covenants, Articles of Inc, Bylaws, Rules and Regs and any ARC written guidelines? These are what are your GOVERNING DOCUMENTS. I'll bet that if you look into all of them, all of your questions will be answered. If you do not have all of them, then you should get them.

Boards cannot or at least should not just "wing it" with decisions on landscapeing, and other ARC items.They are required to follow your Docs. As for authority outside of the covenants? Yes, follow the heirarchy of the docs and the Board can go all of the way down to committees with their authority.

THANKS SO MUCH FOR YOUR HELP...

As I said in my first post, there are NO covenants, rules, regulatations, etc that even address yard maintenance. They even acknowledged that in their email to me. If you're interested to look over the covenants yourself, they are online in pdf format at

http://www.pba-fl.com/tannercrossing/bylaws.pdf

Their response to me asking again was the following:

"We apologize if you are offended by the official nature of the violation letters. We are unable to send and track individually written letters in our system.

Obtaining voluntary compliance is always the goal of the HOA and the management company. Living in an HOA has many benefits to homeowners in quality of living in the community and in the maintenance and enhancement of property values.

Please refer to http://www.tannercrossing.com/ and to Section 30 in the CC&R’s: Additional Rules and Restrictions."

Section 30 states:

Additional Rules and Regulations: The Association or Board of Directors may, from time to time, adopt rules and regulations relating to any one or all of the restrictive covenants contained in this Declaration. No Owner, its successors or assigns, tenants, lessees, renters, guests, or invitees shall violate the rules and regulations adoptem from time to time by the Assocation or the Board of Directors, whether relating to the use of the Lots, the use of the Common Areas and Common Facilities, or otherwise. No rules or regulations shall violate or change the rights or obligations of Declarant, Developer or Builders as set forth herein.

MY QUESTION IS... It specifically states they may adopt rules and regulations RELATING TO ANY ONE OR ALL OF THE RESTRICTIVE COVENANTS... But there are NO covenants that talk, at all, about landscaping, yard care, etc (their email even admitted this). So therefore this, to me, doesn't apply. I am just sick of getting letters for weird things I don't think they have any right enforcing. Its time they play by the rules, which is fair to everyone.

Section 12 looks like it addresses that area.

"It shall be the duty of each Owner to prevent the development of any unclean, unsightly, or unkempt conditions of any Lot or Dwelling Unit located on any lot which tends to substantially decrease the beauty of the community as a whole or the specific area."

That looks very much like our Section 6, Duty to Maintain Lot.

In which case the board would have leeway to develop specific Rules & Regulations that further define that Section, including addressing weed maintenance, bare spots and what not.

How do you not see that applying to yard maintenance?

I don't care what it's titled, it can reasonably be considered under the same heading as "Duty to Maintain."

It also mentions the "Dwelling Unit" and the word "beauty," which I admit is a pretty subjective term, however, the Dwelling Unit could have say, gutters that are sagging and dented.

They are not "garbage" and they are not "litter," however, they would still be required to be repaired to a presentable condition under Section 12, regardless of how the section is officially "titled."

So "weeds" and "bare spots," and the like, can also be regulated, and have Rules and Regulations developed in regards to them, based on this particular Section.

Ok, so assuming they can, does that mean the additional rules and regulations that they come up with should be documented somewhere? Does the board have to vote on these? Do homeowners get any say in these votes? Can I ask for them to be provided to me?

Charles,
The Board can enact additional rules and regs at any time they feel the need for, BUT!!!!! The Rules and Regs must be sent out to all members at least 14 days prior to the meeting at which the R. and R.s will be voted on for passage by the Board. This is an open meeting which requires a 14 day posting per the Statutes. Every owner should be given a copy of them once they are passed.

Now, you and the members have 14 days in order to get a plan together if you do not like these R. and R's. YOU HAVE THE RIGHT TO ADDRESS THE BOARD BY WRITTEN REQUEST WHICH GIVES YOU 3 MINUTES TO SPEAK IN FAVOR OR AGAINST ANY Rule BUT!!! it still is the Boards right to enact them, with or without likings from the membership.

On another post, I told of our Master Board President who insisted on a rule that all garage doors must be closed except for ingress and egress. Many members got their 3 minutes of "air time" and made her understand that no resident would close their garage doors, ever, if this rule got included. She would never be able to enforce this if all 565 homes left the doors open, so she withdrew it from the list. There is power in numbers so you can have a voice IF you truely are not being dealt with properly. But you also have to go by what the system requires of you and that is called 'compliance"

I totally agree with you, Brian.

And, obviously, I agree with Donna (or bow to her knowledge/expertise, more accurately.)

But --

How do we know that at some point in time, possibly years ago?, that Rules & Regs that address this weren't written and sent out to the homeowners?

I'm guessing there probably isn't a set at this point, but, there still could be, but just not have bubbled up in this back and forth between this homeowner and the PM yet.

I think not only should the R&Rs be sent out to everyone after they are enacted, but I also believe that AT LEAST once a year, each homeowner should receive a copy in a newsletter or "State of the HOA" letter or whatever, especially around spring of each year, since I would bet a lot of them have to do with warmer weather type things (basketball goals, yard work, pools, etc).

Just a thought.

Yup, creating rules and then not making them visible (to new owners as well) is a recipe for disaster. How does a new owner know? if you buy into an HOA and are given a set of "rules" to abide by, is that your legal contract? Can the HOA then come up a year later and say "Oh, we had dozens of other rules, we just didn't give them to you last year"?

I believe, if we are going to play the hard line "Well, you bought into the property knowing the rules" that the HOA has an obligation to provide said rules. it's not fair to change the contract after everyone agrees and signs, without due process (voting new rules in place is due process. Suddenly coming up with rules never before mentioned is not).

these types of practices is what will drive HOA boards into the ranks of the most respected people in the world, lawyers, IRS agents, and used car salesmen.

http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0720/ch0720.htm

See section 720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.--

(2) An assessment may not be levied at a board meeting unless the notice of the meeting includes a statement that assessments will be considered and the nature of the assessments. Written notice of any meeting at which special assessments will be considered or at which amendments to rules regarding parcel use will be considered must be mailed, delivered, or electronically transmitted to the members and parcel owners and posted conspicuously on the property or broadcast on closed-circuit cable television not less than 14 days before the meeting.

(4) OFFICIAL RECORDS.--The association shall maintain each of the following
items, when applicable, which constitute the official records of the association:
(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.
(b) A copy of the bylaws of the association and of each amendment to the bylaws.
(c) A copy of the articles of incorporation of the association and of each amendment thereto.
(d) A copy of the declaration of covenants and a copy of each amendment thereto.
(e) A copy of the current rules of the homeowners' association.

Charles,

This is from 720:303, (2) BOARD MEETINGS, Paragraph c.-2.

Written notice of any meeting at which special assessments will be considered ***OR*** at which amendments to rules regarding parcel use will be considered must be mailed, delivered, or electronically transmitted to the members and parcel owners and posted conspicuously on the property or broadcast on closed-circuit cable television not less than 14 days before the meeting.

The Statute does NOT say that they must send out the proposed R.& Rs but our attorney stated that we must do it to be safe as it is what the agenda consists of. The membership has the right to discuss this by a prior written request to speak so that is why the Board sends them out with the meeting notice.

Under

(4) OFFICIAL RECORDS.--The association shall maintain each of the following
items, when applicable, which constitute the official records of the association:
(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.
(b) A copy of the bylaws of the association and of each amendment to the bylaws.
(c) A copy of the articles of incorporation of the association and of each amendment thereto.
(d) A copy of the declaration of covenants and a copy of each amendment thereto.
(e) A copy of the current rules of the homeowners' association.

I asked them to please provide me with (b) and (e). I then clarified to say i'm looking for these additional rules that were added to the covenants via section 30. She basically said she can send me a copy of the covenants for 25$ or i can download it on the website. but the website only contains the covenants document, no (b) or (e). which leads me to believe there is no other document. doesn't this invalidate all the enforment they are trying to do?

Harold,
Unfortunately, this goes back at least 7 years that I looked, but maybe longer. Yes, his Board is doing a very poor job from the Board, all the way down to the P.M. It sounds like they dug themselves into a hole and now that darn Charles is throwing dirt down there.

"The board can be arbitrary and capricious and no court will intervene" Even if they don't follow state laws?

Harold,
Charles can file to have the Ombudsman take the complaint. It costs $250.00 to file and then each side needs a legal representation/ lawyer to be present. If the mediation is unsucessful, then the complaintant can go to court which will cost more. I really wonder if this would be worth it for Charles as compliance would be so much simpler. Then he should work from within his rights as a member to get to the bottom of this.

Having been to court against the 2 truck/Escalade EXT owners, I know that all means of resolution of a violation should be tried before it gets as screwed up as where Charle's is right now..

The answer to the question by HaroldS is that CC&Rs that are in violation of statute or case law are likely not enforceable. However, since there are few laws that protect the rights of owners/members, the developer through the developer's attorney has great latitude in the content in the CC&Rs.

Don said: "However, since there are few laws that protect the rights of owners/members, the developer through the developer's attorney has great latitude in the content in the CC&Rs."

And . . . to finish that thought, the Homeowners have the ability to alter various terms and conditions within the documents to "protect their rights," and that does happen in HOA after HOA after HOA, especially after the Developer turns over the HOA to the Homeowners.

If an HOA has a runaway or difficult board, or a board that is being "arbitrary," then there are often prescribed methods within the documents themselves that allow the homeowners to correct that.

The key is not that the developer or the board is "all powerful," which they are not, but that the owner/membership is generally "all apathetic."

Maybe you are at a point to sending them a registered letter return receipt to each board member. In this letter you ask them for a list of specific details outlining what, where, how much etc. on how to care for your lawn or your property for that matter.

Also, ask them to notify you when any changes are made. This will at least show good faith on your part.

You cannot know or be aware of what is expected out of you or the rest of the home owners unless you have it in a document to refer too. Furthermore, any changes should be posted somewhere on their web site or sent to you in a newsletter. But, it sounds like you don't have a newsletter.

You need a manual to refer to.

Mary if you carefully re-read the original question you will find that he was not complaining about getting a violation notice for not mowing his grass. It was the fact that the BOD was enforcing standards that were not written down which is a violation of Florida HOA statutes.

reasonable and prudent given the conditions of the road... the ultimate speed limit.

UPDATE!

Hey guys, received 2 more letters from my HOA this week. The first says I have to repaint my house. My house is only 6 years old and looks the same as any other house in the neighborhood. The rules regarding external paint in the covenants are as follows:

"Section 28: Exterior Paint. All exterior paint colors shall be subject to prior approval of the ARC."

That's the only mention of paint in the rules. Clearly there's not even a vague reference to maintaining paint quality or how frequently the house should be painted. This demand is not something I can easily "just do" since my house is very big and this is a multi-thousand dollar proposition.

The second letter says I need to apply a clear stain on my pressure treated wood privacy fence in my back yard. There is a rule in the covenants that says this should be done and maintained as needed. However, its ironic that the president of the HOA lives across the street from me and their fence is IDENTICAL to mine, and has never been stained.

How do you suggest I go about dealing with this MESS that has now just gotten much more serious in terms of cost to me?

Sorry I did not quote the fencing rule exactly, that is a great point, however they didn't use the word "should" it was more of a "will." So I see there's clearly a rule about stain, and that's fine. My only point there is the selective enforcement, in the fact that no one's fences are stained, including the president of HOA's fence. the exact verbage was it "will be repeated as needed in order to keep the fence in good appearance." That is still up to opinion, i mean like i said, my fence looks just like anyone else's, no rot, no missing pieces, nothing like that. I'm really more concerned with the house paint. I mean, they specified the fence will be re-stained as needed, but did not specify the same with the house paint.

I honestly haven't ever found anything about such general maintenance rules, and when I have challenged the HOA on this exact point, they have not been able to point me to one either. Earlier in this thread there's actually some background on that exact point. My bylaws pdf is located here:

http://www.pba-fl.com/tannercrossing/bylaws.pdf

unfortunately that's the only section listed online in PDF format so I will have to dig out my hard copy. I'm sure it will still be worded in similar fashion, as far as saying "as needed", which unfortunately really means "when they feel like telling you".