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CharlesA1
(Florida)

Posts:13

04/15/2008 1:08 PM
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?

SusanW1
(Michigan)

Posts:2122

04/15/2008 3:31 PM
Why don't you take them to court and test out the legality of those "common standards" of the community? Really, I dare you . . .

MicheleD
(Kentucky)

Posts:1676

04/15/2008 5:35 PM
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.

MicheleD
(Kentucky)

Posts:1676

04/15/2008 5:42 PM
Posted By CharlesA1 on 04/15/2008 1:08 PM Do they have ANY authority outside of whats in the covenants? Oh, I forgot to answer this one. Often CC&Rs give the board the ability to make something called "Rules & Regulations." These rules and regulations are not in and of themselves IN the CC&Rs, but they can expand on them and provide a set of guidelines that incorporate details and specifics that are in accordance with various sections of the CC&Rs. So, for example, our CC&Rs say that any and all mailboxes or post boxes MUST be approved by the Architectural Committee in terms of appearance and location on lot. Our Architectural Committee has established Mailbox Guidelines that prohibit all brick, and the mailboxes must be black, must be of a certain material and must contain a newspaper cubby underneath, in addition, of course, to conform to certain U.S. postal guidelines. Now, the CC&Rs don't say the mailboxes have to look like anything in particular, but they do give the Arch Comm. the power to determine what that appearance is. So, the answer to your question is, Yes, when and where the covenants give them leeway to do so.

DonnaS
(Tennessee)

Posts:2797

04/15/2008 5:52 PM
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.

BrianB
(California)

Posts:1732

04/15/2008 7:31 PM
fight em charles. You asked them nicely to provide you with the rule they claim you are breaking in their fines against you, and they gave you a line of BS. If they cannot quote you a chapter and verse, then they likely are winging it.

CharlesA1
(Florida)

Posts:13

04/16/2008 7:46 AM
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.

CharlesA1
(Florida)

Posts:13

04/16/2008 7:53 AM
By the way, if they can use that covenant as their justification, there becomes the problem, they would then have the power to do ANYTHING they want..

MicheleD
(Kentucky)

Posts:1676

04/16/2008 8:01 AM
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?

CharlesA1
(Florida)

Posts:13

04/16/2008 8:08 AM
Posted By MicheleD on 04/16/2008 8:01 AM 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? But Section 12 is titled "Garbage and Litter"... That article goes on to say "No Lot shall be used or maintained as a dumping ground for rubbish, trash, or other waste...." And about 10 more sentences about trash storage, dumping, etc. I think applying this to saying my trees must be trimmed 8 feet above sidewalks is a little bit of a stretch...

MicheleD
(Kentucky)

Posts:1676

04/16/2008 8:13 AM
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.

DonnaS
(Tennessee)

Posts:2797

04/16/2008 8:18 AM
Charles, Michelle pretty much has it down pat. The Board has the authority per your document statements, to maintain the beauty and integrity of the developement and if they are sending letters out for some maintenances to you, then figure that they have a cause to do so. Your documents give them the ability by section 12, to do this.

CharlesA1
(Florida)

Posts:13

04/16/2008 8:18 AM
Posted By MicheleD on 04/16/2008 8:13 AM 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?

MicheleD
(Kentucky)

Posts:1676

04/16/2008 8:26 AM
Q: "Ok, so assuming they can, does that mean the additional rules and regulations that they come up with should be documented somewhere?" A: Could be. SHOULD be. Might be. It seems they are to some extent in the letters you've been receiving. Q: "Does the board have to vote on these?" A: One would think so. Q: "Do homeowners get any say in these votes?" A: Not necessarily. Some HOAs do let Homeowners "ratify" the Rules & Regulations. Some don't. If it's not required by the governing documents, then the answer is "no." If the governing documents say they must, the answer is "yes." From what I think I read in yours, the board does not require either HO input or assent to create a Rule or Regulation. Q: "Can I ask for them to be provided to me?" A: You can always ask. I hope you can get this resolved to everyone's satisfaction.

DonnaS
(Tennessee)

Posts:2797

04/16/2008 8:29 AM
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"

BrianB
(California)

Posts:1732

04/16/2008 8:30 AM
IMO, any board that creates a rule and doesn't provide it, publish it, or make it available to the owners to follow is creating nothing but problems. How can anyone be expected to follow arbitrary commands? how can you evenly enforce things that aren't written down? How can someone ever learn what they can and cannot do if nothing exists to read, study, understand, or even educate themselves against? it's bad management all around to have a set of unwritten rules that everyone has to guess at.

MicheleD
(Kentucky)

Posts:1676

04/16/2008 8:38 AM
Posted By BrianB on 04/16/2008 8:30 AM IMO, any board that creates a rule and doesn't provide it, publish it, or make it available to the owners to follow is creating nothing but problems. How can anyone be expected to follow arbitrary commands? how can you evenly enforce things that aren't written down? How can someone ever learn what they can and cannot do if nothing exists to read, study, understand, or even educate themselves against? it's bad management all around to have a set of unwritten rules that everyone has to guess at. 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.

DonnaS
(Tennessee)

Posts:2797

04/16/2008 8:46 AM
Michelle, Since situations change regularly with the developements and as we know, times change just with toys and people,(skateboards 10 years ago were not a problem) it is a very good idea to regularly update and resend out new R.and R.s. We do ours every 2 years because of the expense of printing and mailing. Newsletters are so effective in communicating association information also, so why not use that too. But the members MUST have copy of this stuff, otherwise how do they know what is expected of them. Common sense does not ever come into play, as we all have found out.

BrianB
(California)

Posts:1732

04/16/2008 8:48 AM
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.

CharlesA1
(Florida)

Posts:13

04/16/2008 8:50 AM
Posted By DonnaS on 04/16/2008 8:29 AM 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" Well it seems to me this couldn't have ever been done, because every time I've asked REPEATEDLY if it was written down anywhere, how are the rules decided, what are the rules, are there additional rules other than the covenants that I don't know about, etc, all I get is references to things like what I posted earlier, where they basically say the covenants says they can make up anything they want. So IF they HAVEN'T actually followed this procedure, and ever actually documented these rules and given 14 day notice, does this mean they are acting outside of their power??? And where is this statute that says they must send out the rules and regs 14 days before the meeting, etc?

GlenL
(Ohio)

Posts:1362

04/16/2008 11:27 AM
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.

CharlesA1
(Florida)

Posts:13

04/16/2008 12:17 PM
Posted By GlenL on 04/16/2008 11:27 AM 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. So the way i'm understand this, and the way I see it, if they have told me i'm in violation for very specific things ("grass must be mowed, edged, weeded, WEEKLY", "trees must be trimmed 8 feet above sidewalk" for example), and i ask for the rules of the association, and they don't have any, then these specific things they say i have violated, are not actually documented anywhere, and therefore not applicable.. no? That's what i even asked them. I said, 8 feet is very specific, who decided 8 feet and not 7 or 9? If its 8, surely that has to be written somewhere right? If its not, I don't see how they have the right to send me stupid specific requests like that.

DonnaS
(Tennessee)

Posts:2797

04/16/2008 12:40 PM
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.

HaroldS
(Arizona)

Posts:904

04/16/2008 1:35 PM
720:303, (2) BOARD MEETINGS, Paragraph c.-2 Donna - is this a new law? It probably would not apply to rules made before this was enacted. They still need to furnish copies of all rules to the members. It sure sounds like if Charle's board did not follow this statute to the letter, he can flip them the bird for any rules instituted after this statue and pay an attorney to write them a letter telling them to stop the harassment.

CharlesA1
(Florida)

Posts:13

04/16/2008 1:44 PM
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?

BrianB
(California)

Posts:1732

04/16/2008 2:04 PM
yup.

DonnaS
(Tennessee)

Posts:2797

04/16/2008 2:09 PM
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.

DonN
(Michigan)

Posts:237

04/16/2008 2:30 PM
Read the CC&Rs and the other governing documents very carefully. Identify the exact provisions and language that may give the Association (through the Board) to issue rules and regulations. Courts in most states do not give Associations the authority to expand on the provisions in the CC&Rs and other governing documents, unless the CC&Rs grant that authority to the Association. Beware of language such as "board at its sole discretion" which means what it says. The board can be arbitrary and capricious and no court will intervene. Likely the most recent case law is online in Florida. Do the search to identify how the courts interpret the CC&Rs and other governing documents. It really isn't that difficult, but does take some time.

Don Nordeen Governance of Property Owners Associations

HaroldS
(Arizona)

Posts:904

04/16/2008 3:54 PM
"The board can be arbitrary and capricious and no court will intervene" Even if they don't follow state laws?

HaroldS
(Arizona)

Posts:904

04/16/2008 3:58 PM
Thanks Donna! Then that law was probably in effect when they made this "rule." So that if they didn't follow it, the rule cannot be enforced? Does Florida have a state agency that oversees Florida statutes that Charless can file with?

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