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LaverneB (Florida)
Posts: 129
Posted:
Our docs read no, trucks or any vehicle built on a truck chasis. We have a want to be new owner who said the Hummer is listed as a SUV. After lots of research, I found it is built on a truck chasis, but when you go to reg. it it says SUV! Now this Hummer does not fit in garage, so thats out. They are threating to get attorney. Ford Expedition, does any one know out there if that SUV is on truck chasis....the other board allowed one in here thinking its a SUV. He had ti sell his truck after many letters and attorneys fees( he had to pay) the truck had to go..now I wondering OK out there.......Thanks in advance....LaVerneB--Florida
KevinK7 (Florida)
Posts: 1,343
Posted:
I believe the Ford Expedition is based off the F-150 and sits on a truck chassis. You may want to contact Ford. They can probably offer specifics.
GeraldT4
Posts: 1,022
Posted:
LaverneB - Do your docs have a rule that specifies where residents cars must be parked? In other words, does a resident have to park their car in a garage?
MicheleD (Kentucky)
Posts: 4,491
Posted:
But what about the Hummer?

DonnaS (Tennessee)
Posts: 5,671
Posted:

Laverne,

I know that this is not an easy subject to find an answer that will make everyone happy. That Hummer IMHO, is the ugliest thing that G.M. owns. Sorry but if you go to court on it (been there, done that) the Hummer will remain parked outside. Most all of these Docs were written before things like Hummers, Escallades and so many of the hybreds were even on the streets. They need to be updated and if it is commercial vehicles that are not wanted, that needs to be really clearly written. Best tho to settle this one and save the Board a whole lot of pain and expense.

We went directly to G.M for it's classification and they now call it "segmentation" which means that they DO NOT want to classify it as a truck. It's some kind of stigma with a truck verses a very nice big, expensive SUV.

What exactly is the entire paragraph on the trucks because you only gave us a few words.---"Our docs read no, trucks or any vehicle built on a truck chasis" In evelopement or parked outside or what? Anyhow, good luck on this one but avoid going to court at all expenses.
LaverneB (Florida)
Posts: 129
Posted:
Thanks all for the information. To answer a few questions. No your vehicle does not have to be in garage. Yes the Ford Expedtion is on a F-150 truck chasis. To Donna I don't want to go that whole court thing route. Been there done that. Our docs were updated in 95, but sure do need re-doing. Now to find some people to do it? Forget it....they all disappear. Just complainers left..Thanks again guys..LaVerne Florida
JohnB7 (South Carolina)
Posts: 176
Posted:
look at the door frame sticker ... it will have the DOT classification

eg. Plymouth Voyager = 'light truck'
DonnaS (Tennessee)
Posts: 5,671
Posted:


Laverne,
I found this on the A.G.s site but I would not try to use this as a court arguement.

Motor Vehicle §681.102(14), F.S. (1995); §681.102(15), F.S. (1997)
Davis v. AM General, 2000-0717/ORL (Fla. NMVAB October 9, 2000).
The Manufacturer contended that the Consumer’s Hummer was a military off-road vehicle adapted for
civilian use and designed to de driven over rough terrain and carry a heavy load. The Manufacturer
argued that the Consumer’s claim should be dismissed, because the Hummer was a truck weighing
more than 10,000 pounds gross vehicle weight and as such, did not constitute a “motor vehicle” as
defined by the statute. The Manufacturer pointed to the federal vehicle identification number
classification of the vehicle as a “heavy truck” and the gross vehicle weight rating as support. The
Board agreed that the Hummer was a truck weighing more than 10,000 pounds gross vehicle weight
and dismissed the case.
DonnaS (Tennessee)
Posts: 5,671
Posted:

After looking at more info, they did not address what the Hummer 2s are. They are significantly smaller.
KirkW1 (Texas)
Posts: 1,665
Posted:
If your documents are written to specify no trucks or vehicles built on a truck chassis then they should hold up against the Hummer. Regardless of the owner's insistence that this is an SUV. The catch is when the author specified "built on a truck chassis."

Having said that, you may want to look to your community and see how they feel on the issue. Personally I tend to think along the lines of "gas pig" when I see a Hummer. But aside from that, they don't look obnoxious to me. If you wish to continue to keep such huge vehicles out, you may even want to look at adding a weight limit. This is what the IRS does leaving Hummers and other monster SUVs attractive. Because their gross vehicle weight exceeds a certain limit they are considered a truck or tractor for tax reasons. (There is a limit on how much of a car's purchase is considered deductible to avoid luxury cars.)
RW1 (Texas)
Posts: 149
Posted:
Has someone complained?

No complaint = no problem.

Or is this some hypothetical exercise?

Funny how the crux of this argument is based on something you CAN'T EVEN SEE.

GeraldT4
Posts: 1,022
Posted:
LaverneB - For a moment, put the definition, aesthetic, and environmental considerations of trucks, SUV's, and Hummers aside. Your situation is one where reasonableness must IMHO be the overriding factor. Only your association can decide if it's reasonable to restrict certain types of vehicles and force owners to comply. Consider the current housing crisis and the benefit of having new owners, and retaining ones established within your association.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Gerald,
I know what you are saying and I do agree BUT we always have that dern Follow the Covenants thing going. IF CC&Rs say No Trucks, then what does a Board do? As in my HOAs case, we were threatened by a resident to enforce or be sued for not doing our duty. My answer is to remove all of these truck covenants OR require that any allowed must be garaged. There is no simple answer to this pain in our necks.
RW1 (Texas)
Posts: 149
Posted:
BODs have the power of discretion.

Just because there is a "rule" doesn't mean it has to be pursued all-the-way-to-court.

Not every traffic stop results in a citation.

DonnaS (Tennessee)
Posts: 5,671
Posted:

RW,

When it is NOT a rule but a Protective Covenant, the Board does NOT have the discression to decide if they should enforce or not. Almost all documents state that the membership has the right and ability to pursue enforcement. Our truck case was persued because of a lawyer living next to and across from the 2 vehicles that were questioned.She wrote to the Board and our attorney that we either take this truck thing to task or she would take the Board on it. So where do we have a choice when we needed to have a final resolution?
KirkW1 (Texas)
Posts: 1,665
Posted:
If the consensus on any subject is that the rule is unreasonable, then the rule should be changed. Simply ignoring a rule is not a good policy. It breeds disrespect and disregard for the rules.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Kirk,
Agreed. We took a survey, as it is much less expensive than to get an amendment ready for a membership vote, on whether we should try to remove the covenant on parking all trucks within the garages. The results were overwhelmingly in favor of keeping that covenant, therefore the BOD did not propose to change that covenant per a membership vote.

The membership according to our Statutes and our Bylaws, have the ability to petition the BOD to address any changes to the documents. It takes 10% of the entire mmebership and as of this date, it has never been brought back up.
RW1 (Texas)
Posts: 149
Posted:

Contrary to some popular beliefs covenants can only be enforced if a court finds them reasonable.

Covenants generally give HOAs the right but not the obligation to enforce their covenants.

HOAs have the ability to determine which covenants are reasonable and enforceable.

Even then they can still lose.
DwightT (Idaho)
Posts: 664
Posted:
Quote:
Posted By RW1 on 08/22/2008 12:21 PM

Covenants generally give HOAs the right but not the obligation to enforce their covenants.

RW - do you happen to have a reference for this? I believe that there was a court case not too long ago where the judge made this ruling, but I can't find a reference for it now.
DonnaS (Tennessee)
Posts: 5,671
Posted:

RW,
FYI,

The Judge in our case ruled "That the covenant is clearly written and enforceable" He ruled that the BOD did not selectively enforce, did indeed have the right to enforce said covenant and the BOD charge did not use estoppel

So in your opinion where does "the Board has the fudituary duty to enforce the CC&Rs" fit? If Boards do not have an obligation, then what purpose do they serve other than to sit and give opinions.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Quote:
Posted By DwightT on 08/22/2008 12:31 PM
Posted By RW1 on 08/22/2008 12:21 PM

Covenants generally give HOAs the right but not the obligation to enforce their covenants.


RW - do you happen to have a reference for this? I believe that there was a court case not too long ago where the judge made this ruling, but I can't find a reference for it now.

Dwight,

There is a case law in AZ - the Gfeller Case. I posted the info last week or so but will do so again.

In this case, the AZ Court of Appeals held that an association has the affirmative DUTY to enforce the assn's governing documents. This was the first case of this nature in AZ. The Gfellers brought suit against their HOA for failure to prevent a neighboring property owner from interfering with drainage of rainwater from their property. The assn stated they had a right to enforce the CCRs but no DUTY to do so. The owners further argued that the following provision imposed a positive DUTY on the assn to enforce the CCRs: "After the date on which this instrument has been recorded, these covenants, restrictions and conditions may be enforced by the assn or its BOD which shall have the right and DUTY to enforce the same. . ." The Court held that this provision of the CCRs imposed an express DUTY upon the assn to enforce the CCRs. The key to this particular case is that the CCRs specifically state the Board "SHALL HAVE THE RIGHT AND DUTY" to enforce.

Bottom line: Associations should carefully review their documents. If the board feels they do not want to enforce a particular provision they should take steps to amend or repeal that provision -- especially if the docs state the board has "the right and duty" to enforce the docs. Otherwise they may find themselves in court for failure to enforce the documents.
RW1 (Texas)
Posts: 149
Posted:
I live in S. Fl. My opinions are based on Fl. Case Law and personal experiences.

Each case rests on its own merit.

Some BOD initiated "CC&R" cases are lost!
As has been [repeatedly] documented, even lauded, here.

When forseeable loss of life or property is at risk, an HOA could be (would be) culpable for not protecting its membership's or corporate property.

Arguing over something you cannot see is zealous

Besides there has been no evidence of a complaint here.

RW1 (Texas)
Posts: 149
Posted:
Sorry, I forgot "Fiduciary Duty"...

...It is the fiduciary duty of the BOD to avoid confrontations that could turn into very costly litigation.
DonnaS (Tennessee)
Posts: 5,671
Posted:

RW,

I too am in S. Fl, land of thousands of HOAs. or I was for 7 years, still own 2 properties there. Yes, some BOD cases are lost and some are won. That does not mean that the Board should not have initiated some of the cases. We also see where Judges make errors as we feel ours did. That happens often and then there is no true justice. To persue an appeal is where one can laud our BOD for saying that enough is enough. We finally had a definitive answer which is what everyone wanted. Without going the court route leaves many issues in the dark as to the enforcebility of some of these poorly written documents which Boards inherit from the Developers.

So you still haven't given us an answer as what to do with different interpretations of a covenant when both sides see it totally different. Ignore it and hope that it goes away? Just brush off members who are clearly calling on a Board to take action? What's your answer? Arguing over something that you cannot see is zealous? Do you mean trucks parked outside, fences erected where they shouldn't be, members in total disrespect for the rules? Not sure where you cannot see these.
DonnaS (Tennessee)
Posts: 5,671
Posted:

RW,

Where did you get this idea from?

..."It is the fiduciary duty of the BOD to avoid confrontations that could turn into very costly litigation."
LaverneB (Florida)
Posts: 129
Posted:
GeraldT4, our docs clearly state "no trucks or anything ,built on a truck chasis" PERIOD. I do believe at this day and times of tough housing sales the docs need updating. But until that is done, I am only following the docs recorded 28 years ago. I have 216 homeowners that will be down my back, in no time flat! I myself drive a BlazerLT. But, it is not on a truck body. The home I am talking about is a rental home. Thanks will keep you updated,,LaVerne B Fl
RW1 (Texas)
Posts: 149
Posted:
Is a Hummer built on "a truck chassis?

Please [BOD] don't spend my money to find out what a Judge thinks!

Fiduciary Duty:

Noun
The legal duty of a fiduciary to act in the best interests of the beneficiary.

(i.e. avoiding very costly litigation)
DonaldM3 (South Carolina)
Posts: 132
Posted:
Laverne, I believe you’d be well served not interjecting “The home I am talking about is a rental home.” into your resolution of this issue.
JohnK3 (Pennsylvania)
Posts: 967
Posted:
An aside:

Setting aside the chasis issue (which seems pretty clear), and the reasonableness/non-enforcement issue (which is also reasonable, esp. if other chasis vehicles apparently might be getting a pass), and the Who's complaining here issue (as in, live and let live if there is no lynching mob forming)...

I've read a few articles about Hummer Rage, that being non-owners of Hummers yelling at, giving the finger to, or otherwise demonstrating deep-seated revulsion to strangers who are owners, for whatever reasons.

Perhaps that's a small detail involved here?

MaryA1 (Arizona)
Posts: 7,043
Posted:
Quote:
Posted By RW1 on 08/22/2008 5:46 PM
I live in S. Fl. My opinions are based on Fl. Case Law and personal experiences.

Each case rests on its own merit.

Some BOD initiated "CC&R" cases are lost!
As has been [repeatedly] documented, even lauded, here.

When forseeable loss of life or property is at risk, an HOA could be (would be) culpable for not protecting its membership's or corporate property.

Arguing over something you cannot see is zealous

Besides there has been no evidence of a complaint here.


RW,

You may not agree, but judges do use case law from other jurisdictions when making their rulings.
KirkW1 (Texas)
Posts: 1,665
Posted:
So here is my question to the idea of a BOD choosing to not enforce a rule:

What if the point of the HOA. I see two reasons for the existence of an HOA:

1) Covenant enforcement
2) Maintenance of common property.

The rules should reflect the desire of the membership. And if the membership doesn't want to see the Hummer, then the BOD should work to stop them from seeing the Hummer (regardless of their personal feelings). If on the other hand, the membership wants to allow Hummers in the drives the BOD should work to change the rules.

In Donna's situation I think they did just what they should. Check with the membership and follow the desires.
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Quote:
Posted By KirkW1 on 08/23/2008 8:00 PM
So here is my question to the idea of a BOD choosing to not enforce a rule:

What if the point of the HOA. I see two reasons for the existence of an HOA:

1) Covenant enforcement
2) Maintenance of common property.

The rules should reflect the desire of the membership. And if the membership doesn't want to see the Hummer, then the BOD should work to stop them from seeing the Hummer (regardless of their personal feelings). If on the other hand, the membership wants to allow Hummers in the drives the BOD should work to change the rules.

In Donna's situation I think they did just what they should. Check with the membership and follow the desires.


Kirk,
Couple of thoughts.

In our nation there is a expression of public policy that protects minorities from the tyranny of the majority. (There is also the tyranny of the minority, but I won't get into that here.) Protections are established to protect minority rights and freedoms.

In my way of thinking, if the automobile is registered as a private personal "passenger" vehicle, then the board should stay out of it, regardless of the type of chassis, etc.

If the vehicle is registered as a commercial vehicle, an RV, or something other than a private, passenger vehicle, their is a legitimate reason to act.

RW1 (Texas)
Posts: 149
Posted:
The OP:

"Our docs read no, trucks or any vehicle built on a truck chasis. We have a want to be new owner who said the Hummer is listed as a SUV. After lots of research, I found it is built on a truck chasis, but when you go to reg. it it says SUV! Now this Hummer does not fit in garage, so thats out. They are threating to get attorney. Ford Expedition, does any one know out there if that SUV is on truck chasis....the other board allowed one in here thinking its a SUV. He had ti sell his truck after many letters and attorneys fees( he had to pay) the truck had to go..now I wondering OK out there.......Thanks in advance....LaVerneB--Florida"
------------------------------------------------------------------------

In this case there has been no complaint (yet disclosed) from the MEMBERSHIP.

It appears to be someONE fishing. Maybe even with a bias (against renters, nice cars, etc.)

Check your docs.
I doubt you'll find any language regarding duties of an Officer or Director, or directives regarding the operation of the corporation, which says or includes (and I'm paraphrasing here): "you must go look for violations" and "you must do so with this or that regularity".

The MEMBERSHIP should decide what is a violation and what is not.

Why would you worry about "... 216 homeowners that will be down my back, in no time flat!"

And...No, I would not: "Just brush off members who are clearly calling on a Board to take action?"

If a MEMBER or group of MEMBERS has a problem there are adequate provisions (in FL.) for the membership to address or request items of be put on the agenda.

They [members] have a legal obligation to voice their concerns within the due process described by. PUT IT IN WRITING. (Fish or cut bait)

THEN the BOD must address it. AS THEY SEE FIT. But, it is AT THE REQUEST of the MEMBERSHIP.

It's not that hard.

RW1 (Texas)
Posts: 149
Posted:
REPOSTED due to typos...

The OP:

"Our docs read no, trucks or any vehicle built on a truck chasis. We have a want to be new owner who said the Hummer is listed as a SUV. After lots of research, I found it is built on a truck chasis, but when you go to reg. it it says SUV! Now this Hummer does not fit in garage, so thats out. They are threating to get attorney. Ford Expedition, does any one know out there if that SUV is on truck chasis....the other board allowed one in here thinking its a SUV. He had ti sell his truck after many letters and attorneys fees( he had to pay) the truck had to go..now I wondering OK out there.......Thanks in advance....LaVerneB--Florida"
------------------------------------------------------------------------

In this case there has been no complaint (yet disclosed) from the MEMBERSHIP.

It appears to be someONE fishing. Maybe even with a bias (against renters, nice cars, etc.)

Check your docs.
I doubt you'll find any language regarding duties of an Officer or Director, or directives regarding the operation of the corporation, which says or includes (and I'm paraphrasing here): "you must go look for violations" and "you must do so with this or that regularity".

The MEMBERSHIP should decide what is a violation and what is not.

Why would you worry about "... 216 homeowners that will be down my back, in no time flat!"

And...No, I would not: "Just brush off members who are clearly calling on a Board to take action?"

If a MEMBER or group of MEMBERS has a problem there are adequate provisions (in FL.) for the membership to address or request items of be put on the agenda.

They [members] have a legal obligation to voice their concerns within the due process described by law.
i.e.PUT IT IN WRITING. (a.k.a fish or cut bait)

THEN the BOD must address it. AS THEY SEE FIT. But, it is AT THE REQUEST of the MEMBERSHIP.

It's not that hard.
KirkW1 (Texas)
Posts: 1,665
Posted:
RW,

I respectfully choose to disagree on your stance. I do not think sitting back and waiting for an owner complaint is the best policy. I know in my neighborhood that many of the residents do in fact want active (even) enforcement of the covenants. While they may want that enforcement to be lighter then it was under developer control, they want it to remain.

And believe it or not, I have met a couple people who do not care to ever live in an HOA that is out of developer control. They much prefer the developer control with a management company that takes care of the whole thing.

If trucks have been prohibited in the neighborhood then ignoring the appearance of the Hummer is a breach of moral and fiduciary duties. Perhaps the neighborhood does prefer to consider the Hummer to be an SUV not a truck. But the BOD should not just sit back and wait to see if there is a complaint.
DonnaS (Tennessee)
Posts: 5,671
Posted:

To RW,

RW1
(Florida)

Posts:101

08/22/2008 10:05 PM Quote Reply
Is a Hummer built on "a truck chassis?

Please [BOD] don't spend my money to find out what a Judge thinks!

Fiduciary Duty:

Noun
The legal duty of a fiduciary to act in the best interests of the beneficiary.

SO, FUDITUARY DUTY TO YOU MEANS THAT NO ACTION SHOULD BE TAKEN UNLESS THERE IS A COMPLAINT FROM A MEMBER? IT MEANS DON'T SPEND MY MONEY ON A VIOLATOR? SIR, WITH DUE RESPECT, WHERE DO YOU COME FROM?
RW1 (Texas)
Posts: 149
Posted:
Try opening your mind to someone else's point of view.

Don't ridicule or try to "call out" those who don't agree you.

GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Let's not go off the deep end, here folks. "Fiduciary duty" is open to reasonable interpretation. It comes back, in part, to the shall/may argument regarding enforcement of covenants. Part of the fiduciary duty a board exercises is to determine how and when to enforce covenants. It may be a judgment call.

I don't know Florida law, so I will remain silent as to the specific issue at hand. Frankly, I don't know how one defines a "truck chassis." But like Kirk I do not like Hummers.

In Hoosierland it is easier to distinguish between private passenger vehicles and other types of vehicles. The DMV makes the distinction. Private passenger vehicles are OK, other types of vehicles (commercial, trucks, buses, trailers, RVs, etc.) are not. Unfortunately, a Hummer can be licensed as a private passenger vehicle.
DonnaS (Tennessee)
Posts: 5,671
Posted:

George,
I'm in my "time out corner" (I do not like Hummers either)
DwightT (Idaho)
Posts: 664
Posted:
What ever happened with GM's "review" of the Hummer line? I was hoping that the whole thing would be scrapped.

BTW: while looking around for info on the Hummer, I found this article about Hummer vandalism in a neighborhood. If you have owners leaving their Hummers out, they might want to read it.
KirkW1 (Texas)
Posts: 1,665
Posted:
Quote:
>What ever happened with GM's "review" of the Hummer line? I was hoping that the whole thing would be scrapped.

There is no way that they will choose to scrap the cash cow as long as it is delivering the sweet milk of profit.
JohnK3 (Pennsylvania)
Posts: 967
Posted:
Hummer Rage? Here on HOATalk? Nah. Couldn't be!

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