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Subject: Code Enforcement Troubles
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04/04/2006 8:19 AM  
We are a HOA in Florida, and have had a turn over of Board Members. Each of us is relatively new to these positions, and we are now beginning to move forward, trying to restore our community. Our big problem is that the previous Board had not effectively enforced our CCRs because of lack of interest and funds. As a new Board, we are faced with the task of trying to enforce new violations, while a precedent has been set by the old Board. We too lack the resouces to go to court for every violation.

Our big problem right now is paint colors. Our homeowner's are quick to comment on one's state of disrepair, and quick to yell lawsuit if a color is not "earthtone". We do have an ARB process, which rarely gets used because of past precent of no one ever challenging violations. Earthtone is the verbiage in the CCRs-vague at best.

With the hurricanes the past two years, we have a huge issue with people's roofs. We are a community of duplexes and in the past, roofs had to match exactly. There was one instance, from the previous Board, where an ARB was approved for different roof colors. After the hurricanes, the new Board also approved ARBs for different roof colors due to the limited supply of available shingles. The question became, fix the roof or endure more extensive water damage. We opted for fix the roof. It is now on ongoing problem. Homeowner's are complaining about each other's roofs, even one's with different color roofs. Can we go back, now after hurricane damage has been repaired, and realign with our CCRs?

I've read through the forum and am interested in the fining process. However, it seems that we can try to fine for violations, but the bottom line is that if they don't pay, they don't pay. Am I intrepreting this correctly? No lien can be assessed for fees other than assessments.

I also read the topics on Grandfathering. Several homes have been in violation for years, without notification or approval from our ARB. Is it even feesible for us to attepmt correcting these long standing violations? We are of a mind that we want to move forward from here and now. We would be litigating with half our community on many different and diverse violations if we didn't. Is this something that we can indeed do? If so, how do we go about doing it? A letter to homeowners? Notice?

Any advice would be most appreciated. Going to court just doesn't seem like a feesible option because of all the previous violations left without enforcement.


04/04/2006 9:19 AM  
Yolanda, I would not try to enforce violations to restrictions which are older than one year. As far as previous approval for variances from the Declaration or Rules, the owners should be made aware of the circumstances. And advised these restrictions will be enforced in the future. Enforcement can be accomplished by not approving architectural changes which do not comply.

Owners will have various opinions on what constitures earthtones. So I would clearly define earthtones, possibly with color palettes approved by the architectural committee and Board then provided to the owners.

If you have read some of my posts you can learn how to prevent litigation by forwarning owners. Provide specific rules and regs to clearly define the Declarion. And treat owners the way you want to be treated.

Good luck,


04/04/2006 11:24 AM  
Roger, I am confused by your statement: "I would not try to enforce violations to restrictions which are older than one year." What is your reason for this? We have discussed here many times the fact that lack of prior enforcement does not preclude current enforcement. Is this a Colorado grandfather thing?
This is the biggest bane of HOA boards who are taking over from previous boards that did not enforce the CC&Rs. As a new owner, you better believe that I would be more than pixxed if a neighbor is allowed to continue with an obvious violation but I now cannot. Of course I signed the legal agreement - but so do my neighbor. Harold


04/04/2006 12:31 PM  
Harold, if the violations has been known for over a year it may not be legally feasible to enforce it in Colorado (and probably several other states). If a neighbor had a violation you observed it needs to be reported and corrected prior to existing for a year. Meanwhile, lack of prior enforcement does not prevent enforcement of new violations, just older violations.

As a new owner you may get upset over a neighbors existing violation or that you can not do modifications like those which currently exists. But you may get more upset if the HOA tried to enforce the old violation, it went to court, the HOA lost, and you received a large special assessment to pay your portion of the legal costs.


04/08/2006 4:06 AM  

I'm not clear whether your "roof matching" is required by the Covenants or was a policy set by your ARB/ARC which does make a difference.

But going back at this point will be almost impossible and you must move forward. If it's in the Covenants, can you amend them to cover the changes due to hurricane decisions?

You can certainly establish policy going forward. Paint colors and roof colors were reset by our ARC last year in a joint meeting with the Board - specifically, by color number. Determine what you want to define, agree to it, and publish the information to all your homeowners. State these will be enforced going forward and require (AND post!) that any exterior change or addition must be pre-approved by your ARC - and remind homeowners often depending on your home turnover from sales.

In our case, a request for one of those approved colors gets an automatic turnaround approval. Any request outside the colors requires a meeting and can be approved or denied.

FL statutes require (and our particular Covenants also) that an independent Hearing Committee be set up to hear violations. We have one homeowner who is still receiving a monthly fine for painting their front door without ARC approval because they refuse to submit the one page request. We'll recoup the fines when their house goes on the market next month. We also had one homeowner who had repainted their home without ARC approval with an unacceptable color. We had the attorney send a demand letter (after letters and fining didn't work). It took three months, but it's now repainted to an approved color.

IMHO, you can't NOT set up the Hearing Committee because the fine could be uncollectable. To me (and our Board) - the whole process of enforcement is to get the homeowner to correct the violation - whatever it is. We'd really rather not fine them.

One further suggestions - when you set up your Hearing Committee, have a joint meeting with the Board to set expectations. You're after enforcing the Covenants and policies and to maintain property values. And you want consistency applied for all homeowners.


04/08/2006 8:43 AM  
FL statutes require (and our particular Covenants also) that an independent Hearing Committee be set up to hear violations. We have one homeowner who is still receiving a monthly fine for painting their front door without ARC approval because they refuse to submit the one page request>>>
Becky - Do you have to have a hearing each month on this in order to fine?
We'll recoup the fines when their house goes on the market next month. >>>
Lucky you. Do you have to have to file a lien for these fines? Arizona law only allows judicial liens and the automatic assessment lien to be collected thru escrow on a sale. Nothing else. Harold


04/08/2006 9:56 AM  
Yes, our Hearing Committee has a set monthly meeting. Sometimes they hear one situation - last month it was 10. If there are no fines recommended by the Board, the Hearing Committee cancels their next meeting.

But for the recurring fines, last month, the Hearing Committee fully put the notification burden back on the homeowner. Their rulings now read: (paraphrasing somewhat) --- fine of $XX for Covenant violation of xxxxxx has been assessed. If the homeowner does not notify the property manager in writing that the violation has been resolved, the homeowner is subject to a monthly fine of $xx until the violation is corrected. Or they will state if the missing ARC app is not received and approved by MMDDYYY (usually within two weeks or by the end of the month), the homeowner is subject to a continuing fine of $XX until the application is received and approved.

Most of the time being called before the Hearing Committee will get the homeowner's attention. They're fined, they fix the violation and pay up. It's just those few - which unfortunately, every community has.

And no, FL doesn't allow us to file liens for fines.


04/08/2006 2:42 PM  
Yolanda: Be carefull the senator from Orlando had a new law passed last year on fineing members in Florida.
Step 1 three written warnings, certified mail.
Step 2 Hire a arbitrator ( The assoc must pay for him/her)
Step 3 Have a hearing ( Arbitrator get paid minium of 4 hours hourly rate is $200 per hr)
Step 4 You loose even if you win cause you cant put a lien on the property any more.

Suggested cureall. Issue violations constantly on the property (Monthly) then when the property is near closing people will file a form with your property management called a "ESTOPPEL"
Thats when you add a warning letter to the estoppel warning the new owner he will be responsible for the repairs of the violations prior to moving in.
Florida has screwed every HOA because they thru us in with the condo commando's. You as a Board must be active and stay plugged into all of the organizations in Florida that fight for your laws. The dem's want to disband the HOAs and deed restricted PUDS and put them out of business and to hell with the conditions of the different PUDS.
We have fought this issue so many times I am disgusted with it. We went to the city of Miramar and all we got was lip service. Pembroke Pines is just the opposite, Davie is very similar to pem pines so go to the city fathers remeber play the fact you represent 2 x amount of units voters. When you talk that way they listen.
Good luck


04/08/2006 4:56 PM  
Becky - if you can't lien a fine, how do you say you can recover the fines thru the sale of the property? Florida does not allow you to file a lien on a fine, but it allows you to recover a fine at close of escrow? Weird. Harold


04/09/2006 5:25 PM  
Unpaid fines in Florida can be considered a special assessment against a homeowner and when transfered as such, then can be lienable against the property AFTER you go thru due legal process of letter writting, warnings, hearings, and mediation. H.O.A.s have to have some kind of means to go after bozos who totally ignore CCRS and the system by which we must live in such close proximity.


04/11/2006 5:22 AM  
Hm? Sounds to me like the Florida legislators are getting tired of the HOA's (and developers) screwing the owners.


04/11/2006 6:13 PM  
Perhaps I missed it somewhere along the way....

LuciusD...are you an HOA Board member?


04/12/2006 2:29 PM  
LisaS - Do we have the same scenario here in Illinois? That we cannot put a lien on fines only assessments? -reneé
(South Carolina)


04/28/2006 2:49 PM  
Our HOA has a similar problem. It is my view that if a Board of Directors has failed to enforce code over a period of time, then those owners who violated rules during that time cannot be held liable. A passive response is an implied consent. I would say the Board should officially state that 'henceforth, these are the rules and the procedures that will be strictly adhered to. Going forward, violation will have consequences provided for in the by-laws.'


05/09/2006 7:30 AM  
I know the original posting is old, but I wanted to say that we do not have a hearing before a violation is given. We state in the letter that if they want to appeal the the violation, notifiy us in writing and then a hearing will be set to hear there appeal. We use an appeal process, if a homeowner feels like they are not in violation. We have only had one hearing in the 5 years the association was turned over.

DonnaS- We call all our violations "special assessments" just for that reason. By doing that we can still place liens on there homes.
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