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Subject: Board will not enforce declarations
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TonyL6
(Florida)

Posts:7


08/04/2010 8:50 PM  
The homeowners association where I live in Florida will not enforce some of the rules in the DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS. An example is vehicles parked on driveways, which is forbidden in the covenants. Besides being unsightly, it invites theft and vandalism in this area. Late night car break-ins are common. Another rule is satellite dishes. They have to be approved, but no one has ever applied for approval. The community looks like a farm of antennas.

I realize the antenna issue probably can't be resolved, but the vehicles in driveways are a real concern. When I bought in the community, that particular rule was a draw.

Is there anything that can be done about this? What course of action, if any, should be taken?
GlenL
(Ohio)

Posts:5023


08/04/2010 11:12 PM  
You are right about the antennas and dishes they are protected by the FCC OTARD Rules: http://www.fcc.gov/mb/facts/otard.html

As to parking enforcement; you can:

Recall or replace the Board at the next election with members willing to enforce or you have the power to enforce the documents yourself either in an action against the HOA or against the violating homeowners. Most States and documents allow you to recover your attorney fees if successful.

"Common sense is like deodorant--the people who need it most never use it."
MaryA1


Posts:0


08/05/2010 7:21 AM  
Glen,

I believe that when there is an HOA in place whose resp. it is to enforce the covenants, the members can only enforce if the HOA fails to act on a petition from a certain % of the h/o's to enforce. At any rate, whatever the rule is should be stated in the CCRs. If the CCRs do not give the board the "duty" or even the resp. to enforce the covenants then they cannot be held liable for not enforcing.

When there is no HOA, then the individual property owners have a right to enforce the covenants in a court of law, usually small claims/justice court.
BrianB
(California)

Posts:2803


08/05/2010 2:56 PM  
ballot. vote. change.

if it doesn't work, vote again.
SusanW1
(Michigan)

Posts:5202


08/06/2010 4:22 AM  
It's more difficult to FIX something than to deal with it at its beginnings.

Sounds lilke this has gotten out of hand over time. The Board may see it as unenforceable.

Ask to be on the agenda on the next board meeting and state your concerns. Simply ask what is the Board's procedures for dealing with CCR 'illegal' parking.

Next step is to bring in your local municipality enforcement to see if there are violations regarding safety issues from these csrs parked along the streets.
SusanW1
(Michigan)

Posts:5202


08/06/2010 4:22 AM  
It's more difficult to FIX something than to deal with it at its beginnings.

Sounds lilke this has gotten out of hand over time. The Board may see it as unenforceable.

Ask to be on the agenda on the next board meeting and state your concerns. Simply ask what is the Board's procedures for dealing with CCR 'illegal' parking.

Next step is to bring in your local municipality enforcement to see if there are violations regarding safety issues from these csrs parked along the streets.
TonyL6
(Florida)

Posts:7


08/06/2010 5:32 AM  
Thanks for your replies about my post about parking. I actually served on the association board for a year and repeatedly requested the parking issue be addressed, but I was always overruled.

As in many homeowner associations, there is an entrenched few who run the community and apathy among most of the homeowners keep them in "power." Asking the board to enforce parking rules at this point will not work. I was thinking of small claims court. Does anyone know of a precedent where that type of action has worked?
MaryA1


Posts:0


08/06/2010 6:51 AM  
Tony,

I won't say you can't do it,I have just not ever heard of an HOA member taking another HOA member to court to enforce a covenant restriction. I know this can be done when there is no HOA to enforce. Have you thoroughly read your CCRs to find out what they say with regard to enforcement? In many CCRs if the BOD fails to enforce, a certain % of the members may petition them to enforce and if they do not w/i a certain period of time then the members may enforce. But, first they must petition the BOD to do so.

The following is from my CCRs under "Enforcement":

"Association as enforcing body. The association, as agent and representative of the owners, shall have the exclusive right, but not the obligation, to enforce the provisions of this declaration. However, if the association shall fail or refuse to enforce a mandatory provision of this declaration for an unreasonable period of time (which shall exceed at least 30 days) after written request by at least 10 owners to do so, then the requesting owners may enforce them on behalf of the association by any appropriate action, whether at law or in equity."

Note that it say the BOD has the "exclusive right" meaning only they can enforce. Only after the petition is ignored can the members enforce. And because those members would have a right to enforce "on behalf of the assn", that means it's on the assn's dime.
KellyM3
(North Carolina)

Posts:1052


08/10/2010 7:11 AM  
Are we discussing on-street parking or that cars are parking in the driveways of their homes and not pulling their cars into a garage?
TonyL6
(Florida)

Posts:7


08/11/2010 4:38 PM  
Sorry for the late reply. The covenants say homeowners cannot park on the street overnight and vehicles must be in the garage. It is unlikely the on street parking ban can be enforced since the streets are owned by the local government. However, parking on the driveways should be enforcable or at least that is the question put to members of this forum.

Tony
TonyL6
(Florida)

Posts:7


08/11/2010 4:44 PM  
BTW. It is relevant that a house two doors down from my house had a laptop stolen out of a car a couple of nights ago. It was parked on the driveway.

These cars out on the driveways invite crime. The intent of the rules is to prevent that. Preventing more crime is my incentive to enforce the parking rules.

Tony
KellyM3
(North Carolina)

Posts:1052


08/11/2010 5:30 PM  
If your HOA can't prevent on-street parking, then demanding cars be parked in garages won't help much, would it? Couldn't a property owner simply park on the street and thus move outside the HOA's jurisdiction? You may just find your frustrated but I'm interest to hear any resolution you discover.

Good luck.

MaryA1


Posts:0


08/12/2010 5:14 AM  
Tony,

Just because the streets are private does not mean the HOA cannot enforce the "no parking on the street" covenant restriction. There is case law in other states upholding this restriction. So if the BOD uses that as an excuse, it's a cop out!

BTW, I don't think this restriction was written to prevent crime, i.e. car break-ins or theft. IMO, the reason for the restriction is "appearance"; it just looks nicer when there are no cars "cluttering" the driveways and streets! But, I do understand your reasoning, if the car wasn't there it couldn't be broken into.

I suggest you thoroughly read your CCRs. Is the BOD obligated to enforce the CCRs; does it say they have that duty? My CCRs say the board has the ". . .exclusive right (but not the obligation, to enforce the provisions of this declaration. . ." It then goes on to say that if the BOD still does not enforce a particular covenant w/i 30 days after receiving a written petition from at least 10 members, then those members may do so on behalf of the assn. (I might add that even though this is what my CCRs say, my board DOES enforce the covenants.) So if your CCRs read the same, then the BOD may decide not to enforce the CCRs, or at least certain restrictions contained in the CCRs. I don't think this is wise but they do have an out if the CCRs say they are not obligated to do so. Either way, if enough members of the assn complain, then perhaps they will change their mind. If not, then the members can always decide to recall them or not re-elect them.
KellyM3
(North Carolina)

Posts:1052


08/12/2010 5:33 AM  
The ability and willingness to enforce whether cars can be parked in a driveway will likely hinge on the condition of the HOA organization in terms of effort required to maintain other aspects of the common areas, the daily grind of insuring collections are timely and the overall cash flow health of the HOA. Most of us running HOAs watching our spending and dealing with vendors, contractors and bids on most every job, even small ones. I can't imagine having to pause daily HOA operations to enforce a driveway ordinance given what the one or two of us on the board have to manage as volunteers.

I literally would have to preserve my "fights" to cash flow and spending issues. Otherwise, everyone would remain exhausted.
MaryA1


Posts:0


08/12/2010 6:02 AM  
Kelly,

Sorry, but that's a "cop out" for not doing your job, IF the CCRs say the BOD is obligated to enforce the CCRs. If the job is too much for you then you need to get volunteers to help out in some areas. The A/C committee could be given the task of enforcing the CCRs instead of board members doing it.

If only one or two of the BOD members are doing all the work then isn't it high time that you demand the other board members to take up the slack? If you don't then you only have yourself to blame. But, saying you just don't have the time, or it's not important enough, to enforce the CCRs just doesn't sound good on your part as a board member. Perhaps the board needs to write a letter to the members letting them know that enforcement will be on the back burner until such time as volunteers step forward to perform some of the tasks that overworked board members are having to do. On the other hand, perhaps it's time to hire a mgmt co. Some HOAs require more time to manage than a self-managed board can handle.
TonyL6
(Florida)

Posts:7


08/12/2010 7:15 AM  
MaryA1 mentioned case law that would support enforcing the restrictions on street parking that are contained in the CCR's. Mary, could you point me in the direction of that case law? I would certainly like to look it up.

Mary, you are, also, probably right about the original intent of the parking restrictions. The vehicles are unsightly. We even have commercial vehicles parking on the driveways, which is specifically forbidden in the CCR's. The BOD's answer to that is to ask the vehicle owner's to cover up the commerical advertising on the vehicle when parked within the community. So we have a bunch of pickups and vans with tarps draped over the sides of the vehicles.

No wonder real estate values have dropped so dramatically in Florida with this kind of stuff going on. It just adds to all the other ills in our economy.

Tony
KellyM3
(North Carolina)

Posts:1052


08/12/2010 7:48 AM  
If there is a ground swell of community concern about in-driveway parking, then Tony's issue can addressed. The HOA board represents the interests of the greater community and isn't an official government. Times change from the date covenants are filed by housing developers. My neighborhood is full of single car garages. Maybe that was okay in the mid-1980's but single car households are rare when more than one person lives in a property. How could you enforce a parking ban in one's driveway in that case? Enforcing a covenant that's clearly out of line with modern reality - and I'm not sure this applies in Tony's neighborhood - is impractical. We have some on-street parking that's technically banned. But, the home developer clearly did not provide ample parking for some properties in our neighborhood. It's discouraging.

Maybe the answer is not to ignore the request for enforcement of the no parking rule in driveways but to assess whether it's practical and move to remove it from the books OR enforce it along with the on-street parking issue (which presents safety concerns). One way or the other, someone needs relief on the issue.

It's a great discussion topic because covenants exist to be enforced. So, no matter the bantering, Tony is correct to ask the rules be followed.
KatherineP
(West Virginia)

Posts:13


08/12/2010 2:19 PM  
One of the problems with complaining to your HOA is that you can become a target of the HOA - this is currently happening to me and some other people who complained about other issues. Our HOA is terrible - our streets have basically been turned into playgrounds with basketball hoops everywhere - which are loud when in use (and unsightly). Some people have even taken to believing the street areas around their hoops are their own exclusive property. Two areas have even become difficult to navigate (cars parked all along the street and kids in the street on the other side). Also voting practices are ridiculous and probably would not stand up in a court of law. The list goes on.

I believe that most homeowners are not aware of HOA covenants and rules and don't care to get involved with HOA matters. My opinion is that HOAs don't work and most people would prefer to be without one except for necessities (maintenance, snow removal etc) or where the location government could take over (my neighborhood option for this - which is a single family home neighborhood with virtually no common areas). The whole idea of "keeping home values up" is a joke. I've heard many HOAs exist simply to make HOA management companies (lawyers etc) rich.

Dealing with HOA issues can be very stressful - and expensive - but as it's where you live - I don't believe anyone should give up. Consult with an attorney - read the CC&R very carefully and determine all of your options. Also it's quite likely you could find a whole lot more violations that the ones you mention - perhaps some related to the issues you mention (example location and method of dish or antenna mounting, commercial vehicles or trailers etc).

Good luck
MaryA1


Posts:0


08/12/2010 3:12 PM  
Kelly,

I would suggest an amendment to the CCRs rather than to just ignore enforcing a particular covenant. In older neighborhoods it's not uncommon for some restrictions to become dated. If more than a majority of the h/o's are having problems abiding by a particular restriction, IMO, it most definitely should be put to a vote to be abolished.

A single car garage! We have a 3-car garage -- 2 bays for our cars and the 3d for a workbench and storage. I don't know if I could even get by with a 2-car garage anymore!
MaryA1


Posts:0


08/12/2010 3:25 PM  
Tony,

The case law I referred to comes from a MO Court of Appeals. I've posted the case below. Note that the Court of Appeals upheld the lower court's decision. Please pay close attention to the wording in para. (12)

With regard to commercial vehicles, I believe most assn's have that restriction. Some assn's do allow the commercial sign to be covered but not by a tarp hanging off the side of the vehicle. There are magnetic placards which can be placed over the signage. Ladders are definitely not allowed and must be removed if the vehicle will not fit in the garage.

-------------------------------------------------------------------------------
MO Case Law:
12/17/96 MARYLAND ESTATES HOMEOWNERS' ASSOCIATION
Ώ] COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, DIVISION TWO
Β] December 17, 1996
Γ] *MARYLAND ESTATES HOMEOWNERS' ASSOCIATION, PLAINTIFF/RESPONDENT,
v.
KAREN PUCKETT AND CHRIS SCHALLERT, DEFENDANTS/APPELLANTS.*
Δ] Appeal from the Circuit Court of St. Louis County. Hon. Robert Campbell.
Ε] Gerald M. Smith, Judge, Crane, P.j. and Pudlowski, J., concur.
Ζ] The opinion of the court was delivered by: Smith
Η] Defendants, Puckett and Schallert, appeal from a summary judgment granting plaintiff, Maryland Estates Homeowners' Association, an injunction prohibiting defendants from parking Schallert's truck in their driveway and on the streets of the subdivision. We affirm.
⎖] Puckett is the owner of a home in the Maryland Estates subdivision. Schallert resides with Puckett. Schallert owns a one ton truck which he parks either in the driveway of the house where he resides or on
the street in front of the house. The plat establishing the subdivision provides that the "streets are dedicated to the City of Maryland Heights for public use forever." The Indenture of Trust and Restrictions preclude the regular parking of trucks or commercial vehicles in streets, yards or driveways in the subdivision. Trucks" do not include pickup trucks of ½ ton or less.
⎗] The Association brought this action to enjoin Puckett and Schallert from parking Schallert's truck in the residence driveway and on the street in front of the residence. Defendants concede that the truck
cannot be parked in the driveway. Their only contention on appeal is that because the streets have been dedicated to the public, the Association has lost the power to control their use. They rely upon City of Camdenton v. Sho-Me Power Corp., 361 Mo. 790, 237 S.W.2d 94 (Mo. 1951) for the proposition that a dedicator cannot attach conditions or limitations inconsistent with the legal character of the dedication or which exclude public control of the property.
⎘] City of Camdenton might be applicable if the Association were attempting to restrict the accessibility of the streets to members of the public who are not residents of the subdivision, but that is not the case here. The Indenture of Trust and Restrictions is a contract to which each homeowner becomes a party when acquiring property in the subdivision. Kauffman v. Roling, 851 S.W.2d 789 (Mo.App. 1993)Ώ,2]. By acquiring the property the owners agree to the terms of the restrictive covenants contained in the Indenture. It is agreed by the parties that persons residing in property in the subdivision are equally bound. The Association is seeking enforcement of the promises contained within the Indenture to which defendants have agreed. Defendants agreed that they would not park a truck regularly on the streets of the subdivision. They have breached that agreement and have insisted on their right to do so in the future. An injunction was the proper remedy to prevent such actions in the future.
⎙] The court awarded the Association attorney's fees in the amount of $3000. Defendants challenge that award on appeal. Attorney's fees may be awarded to a successful litigant where provided for by contract. Harris v. Union Electric Company, 766 S.W.2d 80 (Mo.banc 1989)Γ]. The Indenture, a contract, provides for such an award. The court properly made the award. We need not address the issue briefed by the defendants that the language of the Indenture authorizes an attorney's fee award whether the Association
wins or loses and that such a provision is against public policy. Here the Association won.
⎚] Judgment affirmed.
⎛] GERALD M. SMITH, Judge
⎜] Crane, P.J. and Pudlowski, J., concur.




KellyM3
(North Carolina)

Posts:1052


08/12/2010 5:06 PM  
It's obviously a good topic because we're debating it and it doesn't pertain to our neighborhoods....it's a supreme Peanut Gallery session!

That said, the covenant is the problem in that it could be dated AND because it creates tension between a resident and his board of directors, with the preferred solution to be that the board ignores a rule on the books. On second thought, the ignoring of a rule isn't a good idea if a rule-abiding resident raises a concern.
TonyL6
(Florida)

Posts:7


08/13/2010 5:07 AM  
Mary,

Thank you so much for going through the trouble to look up that case law and post it. I will make good use of it.

Tony
TonyL6
(Florida)

Posts:7


08/19/2010 8:33 AM  
Here is post script to this thread. The HOA cited my lawn for violation. There are a few bare spots on the side of the house several inches wide. It was a cold winter in Florida and this patch of ground had some problems. It has been treated and the St. Augustine grass is providing shoots to cover the area. Not good enough according to the board. I asked to meet with the inspector (also the president who by the way, parks a big truck on his driveway) and he refused. He did tell me to put grass seed down. There is no seed for St. Augustine or at least the type in my lawn, which is floratam.

This month's board meeting a couple of days ago passed a modification to the bylaws so they could fine violators, lien their house and eventually foreclose on it if liens are not paid.

Katherine, you called it exactly in your post. I would like to sit down with you and see what you think about the stock market .

Tony
SteveM9
(Massachusetts)

Posts:2855


08/19/2010 12:16 PM  
Not good enough according to the board.


So seed the lawn, document it, mail a copy to the board. Done.


This month's board meeting a couple of days ago passed a modification to the bylaws so they could fine violators, lien their house and eventually foreclose on it if liens are not paid.


This is normal and typical for most HOA's.

In a nut shell, this is what living in an HOA is. They have huge amounts of power and there is nothing you can do about it. Just pretend to get along, try to follow the guidelines and stay off the radar.
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