LaverneB
(Florida)
Posts:129
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| 08/21/2008 7:49 AM |
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| 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 |
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KevinK7
(Florida)
Posts:59
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| 08/21/2008 7:54 AM |
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| 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. |
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GeraldT4
Posts:932
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| 08/21/2008 7:55 AM |
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| 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? |
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MicheleD
(Kentucky)
Posts:1676
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| 08/21/2008 7:56 AM |
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But what about the Hummer?
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DonnaS
(Tennessee)
Posts:2797
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| 08/21/2008 8:41 AM |
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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. |
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LaverneB
(Florida)
Posts:129
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| 08/21/2008 9:48 AM |
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| 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 |
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JohnB7
(South Carolina)
Posts:41
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| 08/21/2008 10:14 AM |
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look at the door frame sticker ... it will have the DOT classification
eg. Plymouth Voyager = 'light truck' |
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DonnaS
(Tennessee)
Posts:2797
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| 08/21/2008 11:52 AM |
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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.
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DonnaS
(Tennessee)
Posts:2797
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| 08/21/2008 11:59 AM |
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After looking at more info, they did not address what the Hummer 2s are. They are significantly smaller. |
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KirkW1
(Texas)
Posts:1110
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| 08/21/2008 2:09 PM |
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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.) |
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RW1
(Florida)
Posts:145
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| 08/22/2008 4:00 AM |
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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.
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GeraldT4
Posts:932
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| 08/22/2008 5:34 AM |
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| 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. |
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DonnaS
(Tennessee)
Posts:2797
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| 08/22/2008 7:05 AM |
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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. |
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RW1
(Florida)
Posts:145
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| 08/22/2008 10:09 AM |
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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.
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DonnaS
(Tennessee)
Posts:2797
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| 08/22/2008 10:23 AM |
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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? |
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KirkW1
(Texas)
Posts:1110
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| 08/22/2008 10:34 AM |
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| 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. |
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DonnaS
(Tennessee)
Posts:2797
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| 08/22/2008 10:51 AM |
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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. |
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RW1
(Florida)
Posts:145
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| 08/22/2008 12:21 PM |
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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. |
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DwightT
(Idaho)
Posts:443
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| 08/22/2008 12:31 PM |
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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. |
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DonnaS
(Tennessee)
Posts:2797
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| 08/22/2008 12:41 PM |
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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. |
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MaryA1
(Arizona)
Posts:2161
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| 08/22/2008 12:50 PM |
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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.
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RW1
(Florida)
Posts:145
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| 08/22/2008 5:46 PM |
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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.
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RW1
(Florida)
Posts:145
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| 08/22/2008 6:33 PM |
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Sorry, I forgot "Fiduciary Duty"...
...It is the fiduciary duty of the BOD to avoid confrontations that could turn into very costly litigation. |
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DonnaS
(Tennessee)
Posts:2797
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| 08/22/2008 6:46 PM |
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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. |
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DonnaS
(Tennessee)
Posts:2797
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| 08/22/2008 6:48 PM |
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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." |
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LaverneB
(Florida)
Posts:129
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| 08/22/2008 7:00 PM |
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| 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 |
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RW1
(Florida)
Posts:145
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| 08/22/2008 7:05 PM |
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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) |
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DonaldM3
(South Carolina)
Posts:21
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| 08/22/2008 7:45 PM |
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| 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. |
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JohnK3
(Pennsylvania)
Posts:438
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| 08/23/2008 10:13 AM |
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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?
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MaryA1
(Arizona)
Posts:2161
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| 08/23/2008 10:50 AM |
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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. |
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