PatR
(Florida)
Posts:139
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| 08/06/2008 6:39 AM |
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We have a resident who is about $5000 in arrears with his HOA dues. They are seeking an ARC approval for a pool.... Our lawyer is advising that we have to allow the pool. Sort of an apples and oranges thing. His home can be forclosured upon soon for non payment of HOA dues, it is that bad. Any advice? This is in Florida.
FYI: The resident is also an Attorney...
Thanks
Pat
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DonnaS
(Tennessee)
Posts:2948
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| 08/06/2008 6:50 AM |
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Pat,
Oh my gosh, this brings back some memories of a Lawyer/resident who knows just how far they can push an association before something drastic has to be done.
Send him the required letters on the delinquent dues, then if no response, send the registered letter. If no response, LEIN HIM!!!! Then let him figure out how to get his sorry butt out of this. This lawyer of all people knows what his responsibilities are. Florida has Statutes to take care of this problem. Delinquent dues can also be forclosed on a property in Florida.
And what's with your lawyer? A member not in good standing looses his privledges for using the amenities and common grounds. The ARC should slow down this approval until you can get this started with the leining.
Our association has many attorneys living (my Fl. one)within the community. And many of them push the limit all of the time with ARC issues and Rules and Regs. The good ones are wonderful to work with but the bad ones are SOOOO bad. Get started on this and inform the association lawyer that there will be no foot dragging either. |
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PatR
(Florida)
Posts:139
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| 08/06/2008 7:00 AM |
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| Thanks Donna....My thoughts exactly... |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 7:10 AM |
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Posted By PatR on 08/06/2008 7:00 AM
Thanks Donna....My thoughts exactly...
I have a different take (as usual).
Let them, (indeed, encourage them) to install the pool before foreclosure. It will make the value of the home greater when the foreclosure auction is held.
If there is a lien on the home for the past due fees, I suppose the owners plan on paying for the pool in cash. I doubt they could secure a home equity loan with an outstanding lien.
Question about Florida statutes:
Is any homeowner able to file suit to enforce covenants, or is such action restricted to the association? |
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BradP
(Kansas)
Posts:1742
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| 08/06/2008 7:23 AM |
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Pat:
As others have said if you haven't already lien the home...I think your lawyer is right in the fact that you have to allow the pool. While being delinquent on your assessments will disqualify you from using common property I don't think it disqualifies you from making improvements to your home or property. |
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MikeS1
Posts:0
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| 08/06/2008 7:23 AM |
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| Lien the property quick.. If he's financing the pool, then he probably won't be able to the install the pool. Perhaps, he's consider paying you folks so he can install the pool later. I don't know if a pool necessarily increases the value of the home. If anything, it may limit your target market. Not everyone wants a pool with all the maintenance issues and liability. Good luck. |
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DonnaS
(Tennessee)
Posts:2948
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| 08/06/2008 7:32 AM |
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Everyone,
Now I am NOT a lawyer but reading this paragraph from the Statutes about ARCs, read the sentence that starts with "Neither". Could that be interpreted to mean that because the ARC could deny the pool because the applicant IS NOT following the CC&RS by not paying his dues? After all, DUES are stated in the CC&Rs
(5) Neither the association nor any architectural, construction improvement, or other such similar committee of the association shall enforce any policy or restriction that is inconsistent with the rights and privileges of a parcel owner set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, whether uniformly applied or not. (*** Neither the association nor any architectural, construction improvement, or other such similar committee of the association may rely upon a policy or restriction that is inconsistent with the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants,)**** whether uniformly applied or not, in defense of any action taken in the name of or on behalf of the association against a parcel owner.
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PatR
(Florida)
Posts:139
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| 08/06/2008 7:33 AM |
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| I am having the President speak to the attorney ASAP re where we are in the lien process.... It's always something! |
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DonnaS
(Tennessee)
Posts:2948
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| 08/06/2008 7:40 AM |
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George,
In answer to your question about a homeowner able to file suit to enforce covenants? The answer is "YES"!! Below is the Statute wording which allows this.
720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.--
(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(**** ALLEDGED 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.
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 7:45 AM |
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Posted By DonnaS on 08/06/2008 7:32 AM
Everyone,
Now I am NOT a lawyer but reading this paragraph from the Statutes about ARCs, read the sentence that starts with "Neither". Could that be interpreted to mean that because the ARC could deny the pool because the applicant IS NOT following the CC&RS by not paying his dues? After all, DUES are stated in the CC&Rs
Oh, this is the stuff lawsuits are made of . . .
Remember the homeowner is a lawyer.
My guess is that a fair reading of the covenants by a court would be that association fees are of a different character than other covenants, and that there are specific remedies for fees in arrears, making the argument tenuous at best. Nevertheless, that is why the association has a lawyer.
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PatR
(Florida)
Posts:139
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| 08/06/2008 7:50 AM |
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| The lawyer's phone is ringing as we speak! |
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DonnaS
(Tennessee)
Posts:2948
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| 08/06/2008 7:51 AM |
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George,
You are probably right on that one. |
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MicheleD
(Kentucky)
Posts:1866
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| 08/06/2008 8:36 AM |
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Definitely lien him, but curious, here's what our CC&Rs say about "in-ground pool" approvals:
"(d) No aboveground swimming pools shall be erected or placed on any lot in XXXXXXX. In-ground swimming pools design and placement must be approved in writing by the Architectural Committee, which approval shall be within the sole and absolute discretion of the Architectural Committee and may be arbitrarily and unreasonably withheld."
One of the Rules the ARC COMM has established is that any requests from homeowners not in good standing may be denied.
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PatR
(Florida)
Posts:139
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| 08/06/2008 9:10 AM |
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He has been liened and is quite close to losing his home....
Sad that somone who can afford a pool would get him/herself into a situation that causes them to lose a home for less then 10k when then can afford a 40k pool.
Hmmmmmm......Am I missing something??? |
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DonnaS
(Tennessee)
Posts:2948
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| 08/06/2008 10:02 AM |
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Pat,
Knowing what kind of lawyer he is (Gerald, I am presuming by his behavior), he might have put a minimum down and would default on the remainder of balance. And he still ends up with a pool.
I personally know a couple of pool companies in S. Florida who got stuck with unpaid installations by a hundred or so becaue of this very thing. Who suffers then. The pool installer and his company because he still has to pay for all of the materials that were installed by vendors and his employees. I also find it hard to believe that any attorney is not smart enough to keep himself out of this kind of trouble but when greed is the driving force, anything can happen. |
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PatR
(Florida)
Posts:139
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| 08/06/2008 10:28 AM |
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| Good point... |
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GeraldT4
Posts:934
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| 08/06/2008 10:37 AM |
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Posted By DonnaS on 08/06/2008 10:02 AM
Pat,
Knowing what kind of lawyer he is (Gerald, I am presuming by his behavior), he might have put a minimum down and would default on the remainder of balance. And he still ends up with a pool.
I personally know a couple of pool companies in S. Florida who got stuck with unpaid installations by a hundred or so becaue of this very thing. Who suffers then. The pool installer and his company because he still has to pay for all of the materials that were installed by vendors and his employees. I also find it hard to believe that any attorney is not smart enough to keep himself out of this kind of trouble but when greed is the driving force, anything can happen.
DonnaS - You wrote, "(Gerald I am presuming by his behavior)". Are you referring to me? |
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RW1
Posts:0
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| 08/06/2008 11:09 AM |
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As always, the devil is in the details (documents).
In this case the details are contained in the docs. verbage regarding the AC (Arch. Control) process/authority and penalties for non-payment of dues.
AC committees are (typically) only allowed to approve/disapprove based on things like materials, colors, location, design, etc. So called "harmony of the community's appearance" criterion.
You likely have NO grounds to disapprove for ANY OTHER reason. Especially if pools already exist in the community. Precedence has been set.
Refusal for the wrong reason(s) would allow him to proceed with impunity as you would likely loose in court since the committee would have exceeded their authority. Conversely, refusal to approve (stall tactic) will likely allow commencement if no response is received in a specified amount of time after submittal (30-45 days typ.)
The members of the AC committee (unless co-serving on the BOD) should not have, OR BE CONCERNED WITH, any information regarding the requestees (or anyone's) financial status anyways (except for gossup). They are to only be concerned with the harmony of the community's appearance. PERIOD.
An HO can request any number of changes whether they can afford them or plan to commence them or not.
It is not a perfect world, it is not a fair world.
This looks personal. Don't complicate the issue by trying to "punish" someone beyond your authority because they owe you money.
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 11:11 AM |
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RW--
Best response yet, by far!
Thanks!! |
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PatR
(Florida)
Posts:139
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| 08/06/2008 11:24 AM |
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Donna:
That is what our attorney advised, can't mix apples and oranges.
Hopefully this will work itself out. If not a home with a pool may be more "sellable" in Florida!
Thanks all, for your input....Keep it coming!
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DonnaS
(Tennessee)
Posts:2948
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| 08/06/2008 11:44 AM |
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Pat,
Yes I did acknowledge to George that he probably was right about mixing apples and oranges( dues not pertaining to the ARC- using lack of dues to not approve because of "member in good standing status")
Gerald-- I remembered your post on another thread-- "DonnaS - With all due respect you seem to have a penchant for drawing conclusion based upon only one side of information we are provided. Let's not make assumptions here." I did state that I was presuming.  on this lawyer and his pool. |
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PatR
(Florida)
Posts:139
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| 08/06/2008 11:50 AM |
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| everyone....Play Nice..... |
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DJ1
(Ontario)
Posts:460
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| 08/06/2008 11:58 AM |
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| What are the timelines for ARC approval...ie. if you stall too long = automatic approval of the pool? |
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GeraldT4
Posts:934
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| 08/06/2008 12:05 PM |
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| DonnaS - You do realize that you've basically called me a deadbeat in your post. Worse than that, you called me a lawyer, of which I'm not!!! : ) |
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PatR
(Florida)
Posts:139
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| 08/06/2008 12:13 PM |
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| Property Managers are worse.... |
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RW1
Posts:0
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| 08/06/2008 12:19 PM |
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DJ1,
Maybe. Look in your docs.
In my case... if no response is received within 30 days [of receipt], the request is considered approved.
This is why it is important for the Assn. (or MC) to date stamp all requests upon receipt. THAT is when the clock starts ticking.
Not when it was filled out or faxed or placed in mailbox, or ???, etc.
Otherwise you may have problems!!! |
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DonnaS
(Tennessee)
Posts:2948
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| 08/06/2008 12:25 PM |
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Gerald, No!, I would never call anyone a deadbeat on this site nor did I call you a lawyer or a deadbeat. Please reread the lawyer statement on the bottom of the post, as I was referring to the Lawyer who is the origin of the posters problems. I was referring to me being called presumptuous and I will appologize to trying to kid you about that.
I really think that you know that I was giving you the razberrys and if you took it wrong, I do sincerely do appologize. Again-- |
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BradP
(Kansas)
Posts:1742
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| 08/06/2008 12:27 PM |
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While I am not one to advocate dishonesty among boards, if this person wasn't a lawyer the tactic of refusing the request based on delinquency in assessments would be interesting to see it play out.
However, as a lawyer, he is probably aware that isn't ok to do.
Again, I am not advocating it, but with all the trouble in collecting assessments it could be another tool to try. If pressed on it the board would have to back down and would lose trust of the homeowner, but if successful then they collect money. |
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GeraldT4
Posts:934
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| 08/06/2008 12:27 PM |
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| DonnaS - Notice I put a smiley face : ) after my post. Wasn't offended, just didn't understand how my name popped up. I like raspberries, and strawberries too!! : ) |
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DonnaS
(Tennessee)
Posts:2948
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| 08/06/2008 12:29 PM |
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Pat, Do I add more fuel to this fire? Try used car salesmen. We have a saying up here---"Lawyers are like a bunch of bananas-- They are crooked, yellow and hang around in bunches"
Please--no lawyer responses cause I did not make this one up. Just trying to lighten up the mood. |
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