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Subject: VARIANCES
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Author Messages
CarissaM


Posts:0


08/27/2021 12:06 PM  
Hey everyone just wondering thoughts on this, this is from my CC&R’s and the Developer granted Power to the Association when they completed the neighborhood. We are considering using this to grant a variance to our boat and RV owners (present and future) to allow boats/RV’s to be concealed behind a fence. I can’t find where my county building code referenced a fence as an acceptable method of concealment. Can someone give me an opinion? Should I be checking FL statutes for something in particular regarding this or is it pretty cut and dry?

SPECIAL EXCEPTIONS AND VARIANÇES. The Developer reserves the right to grant exceptions and variances from the strict application of the provisions of this Declaration and from the strict enforcement of all of the terms, conditions and provisions of this Declaration. Also, the Developer reserves the right to grant consents to encroachments of improvements into easements and waivers of the strict application of the provisions of this Declaration. The granting of the exceptions, variance, consents and waivers shall be within the sole and absolute authority, discretion and opinion of the Developer and the Developer may, in the Developer's sole and exclusive discretion, unreasonably withhold any such exception, variance, consent or waiver. Furthermore, the granting of any such exception, variance, consent or waiver shall not be construed or interpreted to grant, and shall not grant, any right to any other persons upon a subsequent application the right to receive the approval of an application for an exception, variance, consent or waiver.
AugustinD


Posts:1585


08/27/2021 12:21 PM  
Posted By CarissaM on 08/27/2021 12:06 PM
Hey everyone just wondering thoughts on this, this is from my CC&R’s and the Developer granted Power to the Association when they completed the neighborhood.
If you are reading this section of the CC&Rs correctly, and this is a big "if," then it means the Board can amend the Declaration at will. But this conflicts with the fact that this Declaration has a section that describes how only a vote of the owners can amend the Declaration, correct?

Where does it say the post-declarant board has the powers listed under the "Special Exceptions and Variances" section you posted? Please quote verbatim this section.

You are aware that sections like the one you quoted are common and designed to give the Declarant a certain amount of leeway, within reason, to sell home lots or condo units, right?

CathyA3
(Ohio)

Posts:2394


08/27/2021 12:35 PM  
I read this as the Developer having wiggle room to grant these things, but I'm not seeing where the board has similar abilities. It's more a broad statement in legalese that boils down to "the Developer calls the shots while he's in control" - which we all know.

Unless there is another statement that stays explicitly that these abilities pass to the board after the Developer is no longer in control, I don't think this is the case. It would amount to an end run around the provisions of the CC&Rs without the normal "due process" required.

But I am not a lawyer.
CarissaM


Posts:0


08/27/2021 1:05 PM  
The CC&R's do not show it grants the powers for the special exemptions and variances specifically. Does this mean that unless the developer specifically designates the Association for other areas that reference a Developer and not the Association that the Association doesn't get to replace Developer with Association?

And no, I'm not aware this is particularly designed to give leeway to sell lots. When I moved here in 2018 they'd finished building and turned over the power to the Association so I just wondered (and knew it would be free to ask here rather than hear it from my $250/hr. attorney) if this particular right to grant variances would then transfer power to the Association in the same way.

I also told my President that I thought this seemed "too easy" and that I would check it out.


We used this "power" when a homeowner asked for a variance on the 10ft. easement requirement on a shed and we allowed it to be 5ft. which was the county requirement. I hope we didn't do that wrong.
CarissaM


Posts:0


08/27/2021 1:07 PM  
Posted By CathyA3 on 08/27/2021 12:35 PM
I read this as the Developer having wiggle room to grant these things, but I'm not seeing where the board has similar abilities. It's more a broad statement in legalese that boils down to "the Developer calls the shots while he's in control" - which we all know.

Unless there is another statement that stays explicitly that these abilities pass to the board after the Developer is no longer in control, I don't think this is the case. It would amount to an end run around the provisions of the CC&Rs without the normal "due process" required.

But I am not a lawyer.




It may not Cathy, that is why we were checking this particular item out.
CarissaM


Posts:0


08/27/2021 1:10 PM  
As I assumed, it might not carry the weight for us to allow a fence as a measure of concealment for a boat.

I'm just trying to keep the freedom people have without breaking the rules.
AugustinD


Posts:1585


08/27/2021 1:13 PM  
CarissaM, by any chance does your Declaration have a Section 32, or any section, that starts with the following?

AMENDMENT. Except with respect to matters reserved by the Developer herein, this Declaration may only be amended by the affirmative vote of not less than two-thirds (2/3) of each class of membership...
CarissaM


Posts:0


08/27/2021 1:25 PM  
Posted By AugustinD on 08/27/2021 1:13 PM
CarissaM, by any chance does your Declaration have a Section 32, or any section, that starts with the following?

AMENDMENT. Except with respect to matters reserved by the Developer herein, this Declaration may only be amended by the affirmative vote of not less than two-thirds (2/3) of each class of membership...




Yes, we are limited on amendments to 2/3 votes. Which is why we were thinking, skip the amendments we can't get and just provide a variance to all homeowners on the requirement that a boar/RV be enclosed so long as it is concealed behind a 6ft privacy fence.

We have 9 homeowners with a boat or an RV behind a fence. No one is complaining about it. BUT we got a new President this year and she is intent on enforcing every rule, whether or not it's been abandoned since the developer turned it over.

Maybe we can establish a rule that concealed = behind a 6ft privacy fence??


As a Treasurer and a person who cares for the community I am trying not to fight myself (a board member) to keep my boat where it is. Behind a fence in well maintained condition.

So I'm just trying to figure out the best way to let the President enforce every rule, without having to take down a shed and rebuild an "enclosure" for my boat.

ULTIMATELY, Yes this is purely personal and I do know that. it is NOT AT ALL why I joined the board this year, that was purely coincidence. I'm just angry that it's been fine all these years for all these people and now because the current President wants to be the enforcement police, it's a problem. So I'm trying to make a win for everyone. I don't want to be the board going to the nine homeowners and saying "get an enclosure or get it off the property".

That might not be possible but I will definitely try!
CarissaM


Posts:0


08/27/2021 1:25 PM  
That's boat/RV not boar, no boars!
CarissaM


Posts:0


08/27/2021 1:27 PM  
I feel like Adam...just trying to find a place for my bees...I mean, my boat. LOL
AugustinD


Posts:1585


08/27/2021 1:41 PM  
Posted By CarissaM on 08/27/2021 1:25 PM
Posted By AugustinD on 08/27/2021 1:13 PM
CarissaM, by any chance does your Declaration have a Section 32, or any section, that starts with the following?

AMENDMENT. Except with respect to matters reserved by the Developer herein, this Declaration may only be amended by the affirmative vote of not less than two-thirds (2/3) of each class of membership...


Yes, we are limited on amendments to 2/3 votes.
I posted the excerpt above because it seems pretty clear that the Declaration gave the Developer certain exclusive powers, but the Declaration does not give the post-Developer Board and HOA these same powers.
Which is why we were thinking, skip the amendments we can't get and just provide a variance to all homeowners on the requirement that a boar/RV be enclosed so long as it is concealed behind a 6ft privacy fence.
What exactly do your covenants say about boats being concealed?
We have 9 homeowners with a boat or an RV behind a fence. No one is complaining about it. BUT we got a new President this year and she is intent on enforcing every rule, whether or not it's been abandoned since the developer turned it over.

If the fences have been in place this long, I think any covenant that prohibits the use of fences to conceal boats might be considered abandoned.




CarissaM


Posts:0


08/27/2021 1:57 PM  
15. BOATS AND VEHICLES. No boats, boat trailers, mobile homes, house trailers, travel trailers, camper vehicles, motor home, trucks (such term shall not include pickup trucks, sport utility vehicles, passenger vans, and minivans), and commercial vehicles shall be permitted to remain in the subdivision overnight; except that boats or boat trailers, travel trailers, motor homes, camper vehicles, and commercial vehicles are permitted when (a) parked in an enclosed garage; or (b) parked on the driveway to a Lot on a temporary basis, not exceeding seven (7) days; or (c) parked on a Lot in a location 50 feet behind the front property line, and when such boat or vehicle is not visible from the street and does not detract from the neighborhood, Except for inoperative vehicles which are parked in an enclosed garage, all vehicles shall have a current license tag registration and shall be in an operating condition. No vehicles shall be parked on any street or front lawn of the subdivision overnight or on a regular or continuing basis. Notwithstanding the foregoing, a member of a family residing in the home may park a passenger car or pickup truck in the driveway of the residence as long as such vehicle is operable and has a current tag registration.
CarissaM


Posts:0


08/27/2021 2:04 PM  
Posted By AugustinD on 08/27/2021 1:41 PM
Posted By CarissaM on 08/27/2021 1:25 PM
Posted By AugustinD on 08/27/2021 1:13 PM
CarissaM, by any chance does your Declaration have a Section 32, or any section, that starts with the following?

AMENDMENT. Except with respect to matters reserved by the Developer herein, this Declaration may only be amended by the affirmative vote of not less than two-thirds (2/3) of each class of membership...


Yes, we are limited on amendments to 2/3 votes.
I posted the excerpt above because it seems pretty clear that the Declaration gave the Developer certain exclusive powers, but the Declaration does not give the post-Developer Board and HOA these same powers.
Which is why we were thinking, skip the amendments we can't get and just provide a variance to all homeowners on the requirement that a boar/RV be enclosed so long as it is concealed behind a 6ft privacy fence.
What exactly do your covenants say about boats being concealed?
We have 9 homeowners with a boat or an RV behind a fence. No one is complaining about it. BUT we got a new President this year and she is intent on enforcing every rule, whether or not it's been abandoned since the developer turned it over.

If the fences have been in place this long, I think any covenant that prohibits the use of fences to conceal boats might be considered abandoned.









That makes sense with regard to the powers of the developer and them not transferring. This is helpful dialogue for the current Pres.

I explained to her that IF we start to enforce this particular declaration that we may receive return fire from a homeowner who claims its abandoned. A few who built here in 2014 told me they were "sold" on the ability to park their boat and no prior board enforced that.

I just moved in, saw all the boats and RV's, read the declaration and said, hmmmm...they don't seem to care. So we sold our boat that you couldn't see and got the bigger boat, which can be seen from the street.

Which is why 1) we tried amending it to align with what we believe the intent was at the time and 2) if we can't amend, we are seeking other resolution since it appears that should a homeowner not like the sight of a neighbor's boat/RV it will have to be the board's position to enforce the declaration as it stands.

AugustinD


Posts:1585


08/27/2021 2:19 PM  
Only Florida case law describes the requirements for abandonment of a covenant in Florida. This site discusses both abandonment and also the defense of "acquiescence": https://www.theclosingagent.com/termination-homeowners-covenants-restrictions/

One can google for the case law cited and see how Florida courts are thinking about abandonment and acquiescence. Given the case law; what you describe is going on with boats; and if I were on your board, I would vote not to enforce the covenant on boat concealment (that is clearly being violated right and left).

Owners wishing to sue the HOA, board for not enforcing the covenant, and boat owners for violating the covenant can have at it. One has to guess as to which choice (enforce or not enforce) at this point is the least risky.

Of course, that $250/hour attorney is standing by, ready and willing to take your board's call. It's always nice to be able to say, "The HOA attorney advised us to do this."
JohnC46
(South Carolina)

Posts:11422


08/27/2021 2:24 PM  
Posted By CathyA3 on 08/27/2021 12:35 PM
I read this as the Developer having wiggle room to grant these things, but I'm not seeing where the board has similar abilities. It's more a broad statement in legalese that boils down to "the Developer calls the shots while he's in control" - which we all know.

Unless there is another statement that stays explicitly that these abilities pass to the board after the Developer is no longer in control, I don't think this is the case. It would amount to an end run around the provisions of the CC&Rs without the normal "due process" required.

But I am not a lawyer.



I agree.
CarissaM


Posts:0


08/27/2021 3:39 PM  
Posted By AugustinD on 08/27/2021 2:19 PM
Only Florida case law describes the requirements for abandonment of a covenant in Florida. This site discusses both abandonment and also the defense of "acquiescence": https://www.theclosingagent.com/termination-homeowners-covenants-restrictions/

One can google for the case law cited and see how Florida courts are thinking about abandonment and acquiescence. Given the case law; what you describe is going on with boats; and if I were on your board, I would vote not to enforce the covenant on boat concealment (that is clearly being violated right and left).

Owners wishing to sue the HOA, board for not enforcing the covenant, and boat owners for violating the covenant can have at it. One has to guess as to which choice (enforce or not enforce) at this point is the least risky.

Of course, that $250/hour attorney is standing by, ready and willing to take your board's call. It's always nice to be able to say, "The HOA attorney advised us to do this."




Thanks for that I will present to them for considering as well as might invest a 1/2hr on a conversation with the attorney.
JohnC46
(South Carolina)

Posts:11422


08/27/2021 4:09 PM  
Car

Per the Covenant you posted, I believe there is enough wiggle room to allow "exceptions" especially the 50ft rule to less if not visible from the street.
MaxB4


Posts:1211


08/27/2021 5:05 PM  
Posted By JohnC46 on 08/27/2021 4:09 PM
Car

Per the Covenant you posted, I believe there is enough wiggle room to allow "exceptions" especially the 50ft rule to less if not visible from the street.



Those exceptions and variances were for the developer, no one else.
CarissaM


Posts:0


08/27/2021 5:24 PM  
Posted By MaxB4 on 08/27/2021 5:05 PM
Posted By JohnC46 on 08/27/2021 4:09 PM
Car

Per the Covenant you posted, I believe there is enough wiggle room to allow "exceptions" especially the 50ft rule to less if not visible from the street.



Those exceptions and variances were for the developer, no one else.




So the developer can allow a home to have a boat visible but the rest of the homes are not allowed?
MaxB4


Posts:1211


08/27/2021 5:46 PM  
Yep, that is exactly what it means. This was the developer's playground and he gets to play by any rules he wants. Once he is done, he is laughing his ass all the way to the bank.
CarissaM


Posts:0


08/27/2021 5:53 PM  
Thanks for your thoughts.
AugustinD


Posts:1585


08/27/2021 6:11 PM  
Posted By CarissaM on 08/27/2021 5:24 PM
So the developer can allow a home to have a boat visible but the rest of the homes are not allowed?
This is what the covenant says. But the courts, including Florida's courts, have put a limit on developers granting exceptions under covenants like the one CarissaM quoted in her first post here (titled "Special Exceptions and Variances"): The courts say the exception granted by the developer must be reasonable. For example, from Flamingo Ranch v. Sunshine Ranches H, 1974 Florida Court of Appeals, https://casetext.com/case/flamingo-ranch-v-sunshine-ranches-h:

[The Court holds], therefore, that the clause in the Declaration of Restrictions, which reserves to the owner "the right to alter, amend, repeal or modify these restrictions at any time in its sole discretion" is a valid clause so long as it is exercised in a reasonable manner as not to destroy the general scheme or plan of development.

There is case law after 1974 that refined this decision but did not change the main theme as given above.

In the case of CarissaM's HOA, would the developer's allowing one home to have a boat visible (in violation of the covenant on boats) while not allowing other homes to have a boat visible be "reasonable"?

I do not know. I might look at subsequent case law that cites the Flamingo decision. Given all the facts here, I know I would not want my HOA to spend a lot of money to find out.

CarissaM


Posts:0


08/27/2021 6:31 PM  
I think that we have enough information to at least decide to wait and see what happens rather than send violation notices to 9 homeowners. In the end I feel the harmony of the community is at stake here when we go trying to enforce things in this way. Should a homeowner present a complaint about a boat or an RV, we can go address that at the time.

And I feel like I'm armed enough to challenge the violation and basically go up against the board which would also be me (hello awkward in my perceived mind). I don't want to waste HOA dollars fighting myself to keep the status quo but I have decided that it's a hill I'll go down in flames for.
AugustinD


Posts:1585


08/27/2021 6:52 PM  
For what it's worth, if the developer did grant this exception, then I think the only way it is reasonable is if it applies to all owners.
NpS
(Pennsylvania)

Posts:4215


08/28/2021 3:38 PM  
Posted By AugustinD on 08/27/2021 6:52 PM
For what it's worth, if the developer did grant this exception, then I think the only way it is reasonable is if it applies to all owners.


Can't buy into this line of thought.

The essence of a Declaration is advance notice. It informs Homeowner A (or Prospective Homeowner A) what s/he can and can't do - But just as importantly - it informs Homeowner B (or Prospective Homeowner B) what s/he has a legal right to expect of A.

As others have said, Declarant rights are exclusive to Declarants. Once all units are sold, Declarant rights terminate. These Declarant rights cannot be transferred by Declarant to the HOA.

Putting these 2 concepts together in a way that you may not have considered is this.

If I am Homeowner C (or Prospective Homeowner C), I cannot challenge the results of the Developer's absolute power to grant a special allowance to A. But I do have a legal right to expect that all other units must comply to the HOA standards that exist without extending A's unit-specific special allowance to all units.

Aug's statement seems to lean toward an argument about fairness. Interesting thought, but what about all the Homeowner Cs whose legal rights would be diminished without justification?






Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1585


08/28/2021 5:11 PM  
Posted By NpS on 08/28/2021 3:38 PM
Posted By AugustinD on 08/27/2021 6:52 PM
For what it's worth, if the developer did grant this exception, then I think the only way it is reasonable is if it applies to all owners.


Can't buy into this line of thought.

The essence of a Declaration is advance notice. It informs Homeowner A (or Prospective Homeowner A) what s/he can and can't do - But just as importantly - it informs Homeowner B (or Prospective Homeowner B) what s/he has a legal right to expect of A.
Yes, it's a contract, constrained like anything by case law.

More importantly, I think what I posted (as quoted herein) is confusing. I think I was trying to say that I think a Declarant might be on thin ice (if push came to shove and a dispute landed in court) granting a variance to one lot that could easily be applied to all lots. But I could be quite wrong on the latter.

It seems to me that covenants for Declarant-granted variances would be exercised in unusual situations, specific to a lot's configuration, such that the variance, even if granted, practically speaking could not even be implemented for other lots.
As others have said, Declarant rights are exclusive to Declarants.
Yes...
Once all units are sold, Declarant rights terminate.
The Declarant's rights to grant special exceptions and variances terminates. But I do not think the previously granted special exceptions and variances terminate unless they somehow violate the law of contracts.
These Declarant rights cannot be transferred by Declarant to the HOA.
I agree the rights do not transfer. But again, the special exceptions and variances remain unless they somehow violate the law of contracts.
Putting these 2 concepts together in a way that you may not have considered is this.

If I am Homeowner C (or Prospective Homeowner C), I cannot challenge the results of the Developer's absolute power to grant a special allowance to A.
C can challenge what the Declarant did. Whether C would prevail in court depends.

My comments in my earlier posts in this thread are based on actual case law where the Declarant made some major change to certain lots in the HOA and those who bought earlier said, 'Whoa, we did not agree to this.' For example, in one case a Declarant's covenants said 'there shall be a golf course.' Then IIRC the Declarant turned around and said, "The Declarant is exercising its right to amend, under Declaration Section ___. Instead of a golf course, the Declarant will be building homes." (It was something like that.) All hell broke loose. The plaintiff owners said to the court (right through an appeal), "This destroys the promised general scheme and plan of the HOA. Your honor, the Declarant is not being reasonable in its exercise of discretion here. Please rule in our favor." Ultimately the appeals court did (or the appeals court said the trial court failed to consider certain law about reasonableness, and sent the dispute back down to the trial court, for a new trial on the facts pertaining to reasonableness yada).
But I do have a legal right to expect that all other units must comply to the HOA standards that exist without extending A's unit-specific special allowance to all units.
My comment that "For what it's worth, if the developer did grant this exception, then I think the only way it is reasonable is if it applies to all owners," is poor communication by me. Let me put it this way:

The Declarant way back when says to A, "Okay, if you, A, buy the lot and house, you may have a boat that is visible from the street. Here's a signed, notarized statement that the Declarant grants you, A, this special exception and variance, pursuant to CC&R sections _ and __. Make copies. Put the original in your safe deposit box. Deal?" The owner A agrees to the deal and buys the home and lot."

Owner C owns a house in the HOA. Owner C walks into the Declarant's office and a conversation ensues:

C: "Owner A is violating the covenants. What gives?"

Declarant: "Per the covenants, the Declarant granted a variance. See CC&R section __ . We needed to sell the house and lot. We could not put in the pool without this sale."

C: "I want to be able to park my boat the way Owner A does."

Declarant: "No, the Declarant won't agree to this. People will get out of control if the Declarant grants variances right and left."

C: "I think that big boat sitting in A's backyard detracts from the scheme of the neighborhood. If you allowed all owners to have boats that are visible from the street, then the scheme would be consistent."

Declarant: "Yes, I have heard of that case law. But I disagree. Sue me."

C: "I will consider it."


Of course, C could sue in an attempt either (1) to allow all owners to have boats that are visible; or (2) to force the Declarant to grant this particular exception/variance to all lots/owners. Who would win is not clear to me.

I do think the case law tends to have situations where the Declarant started on some large and obvious change to such-and-such, where such-and-such is in the covenants, and the owners said, "Hey, when we bought our homes, we relied on such-and-such occurring, just as the covenants say. We owners think you are radically changing something on which we relied on. Stop now." And the lawsuits begin.
Aug's statement seems to lean toward an argument about fairness.
This is the courts talking, not Aug. Nationwide a general rule for HOAs is: Where the Declaration grants either a Declarant or a HOA Board discretion, that discretion must be exercised reasonably.
Interesting thought, but what about all the Homeowner Cs whose legal rights would be diminished without justification?
Which legal rights are you saying are diminished?

I do think my original statement was based in an unnamed hypothetical. (How annoying.) It's probably more helpful to home in on the realities of the OP's situation. Namely:

-- The Declarant is long gone.

-- Owner A claims the Declarant gave him the right to park his boat so that it is visible. Let's assume this is well-documented. Let's assume the HOA manager even calls the (now long gone) Declarant and finds the Declarant's paperwork granting the variance.

-- New Owner C comes along and says to the Board, "I want to park my boat just like A."

-- The Board says, "That was a variance granted by the Declarant under CC&R section ___. Here's the paperwork. The Declarant is long gone. The post-Declarant HOA does not have the authority to grant variances."

-- New Owner C says, "Hmm. I do not think this is reasonable."

-- The Board says, "Sue the Declarant."

-- New Owner C says, "Maybe I'll sue both the Declarant and you (the HOA)."

-- The Board says, "Have at it."

I would be speculating on what a court would rule. I have not seen case law on relatively small stuff that a Declarant does. Is letting a boat be visible from the street small stuff? I do not know.
AugustinD


Posts:1585


08/28/2021 5:17 PM  
Posted By AugustinD on 08/28/2021 5:11 PM
Posted By NpS on 08/28/2021 3:38 PM
Of course, C could sue in an attempt either (1) to allow all owners to have boats that are visible; or (2) to force the Declarant to grant this particular exception/variance to all lots/owners. Who would win is not clear to me.
Change (2) above to:

(2) to force the Declarant to retract the variance that the Declarant granted to Owner A. (Whence Owner A hires a lawyer and starts another lawsuit.)
NpS
(Pennsylvania)

Posts:4215


08/28/2021 6:42 PM  
Posted By AugustinD on 08/28/2021 5:11 PM
It seems to me that covenants for Declarant-granted variances would be exercised in unusual situations, specific to a lot's configuration, such that the variance, even if granted, practically speaking could not even be implemented for other lots.

I do not believe that the special developer right language says anything about the Developer being limited to a lot's configuration. The language is much broader, and the authority would appear unlimited. I'm not saying that it couldn't be challenged via a lawsuit, but on it's face, the contract language seems rather clear. And anyone who bought a property cannot claim inadequate notice.

Posted By AugustinD
I do not think the previously granted special exceptions and variances terminate unless they somehow violate the law of contracts.

Agreed with one caveat. I don't see where any contract law violation exists. The language is unambiguous. The intent is clear. There was no fraud or coercion. If a legal challenge is going to be successful, I think it would have to be based on something other than contract law.

Posted By AugustinD
I agree the rights do not transfer. But again, the special exceptions and variances remain unless they somehow violate the law of contracts.

Agreed as to the variances remaining. Same comment as above on contract law violation.

Posted By AugustinD
C can challenge what the Declarant did. Whether C would prevail in court depends.

Sure anyone can sue anyone else. So what.

Posted By AugustinD
My comments in my earlier posts in this thread are based on actual case law where the Declarant made some major change to certain lots in the HOA and those who bought earlier said, 'Whoa, we did not agree to this.' For example, in one case a Declarant's covenants said 'there shall be a golf course.' Then IIRC the Declarant turned around and said, "The Declarant is exercising its right to amend, under Declaration Section ___. Instead of a golf course, the Declarant will be building homes." (It was something like that.) All hell broke loose.

My point exactly. Those who objected were the Homeowner Cs whose rights were being diminished. Please remember that this wasn't a single-unit variation here an another single-unit variation there that took place before all the real estate was developed. Huge difference between Development being completed or not.

If the Development is complete, which is apparently the case in the OP's situation, then the Developer is long gone and the corporation that s/he used to build the development has no assets. There's nothing left to stop and there's no assets to go after. No right minded person is going to file a lawsuit.

Posted By AugustinD
Which legal rights are you saying are diminished?

As discussed above, the attempt to build homes instead a golf course diminishes the rights of the Homeowner Cs.

In OP's case, one or two visible items that were granted by the Developer might be very different than 30 or 40 that are granted by the HOA, or whatever the numbers are. I don't know the specific circumstances, and I wouldn't begin to guess how well the Homeowner Cs in the OP's community would tolerate a few or many. My point is that they do have a legal right to object under the OP's Declaration.

One final note -- I have seen homeowners' reasonably expected rights lost to Declarant override on a number of similar situations. Declarant 1 is losing money. Declarant 1 sells unfinished development to Declarant 2. All declarant powers transfer from 1 to 2. Declarant 2 lowers the lot size and square footage of the new homes. Original buyers upset. What's the outcome? What I've seen is that some of these developments sit for years without any resolution.

My suggestion to the OP - Find out who in your community actually cares about this issue. Maybe it won't be that difficult to get the 2/3 buy-in that you might need. This is a problem that, with some amount of effort, could be solved at the grass roots level.

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:4215


08/28/2021 6:43 PM  
Obviously, I'm not that good with all these blocks and responses. Hope you can sort it out.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1585


08/28/2021 7:48 PM  
Posted By NpS on 08/28/2021 6:42 PM

I do not believe that the special developer right language says anything about the Developer being limited to a lot's configuration. The language is much broader, and the authority would appear unlimited.
Sure. But CarissaM queried:
Posted By CarissaM on 08/27/2021 5:24 PM
So the developer can allow a home to have a boat visible but the rest of the homes are not allowed?


I presume she asked this because, on its face, this does not seem reasonable. Granted it would seem to be a hypothetical that is not directly related to solving the current problem (with the Declarant long gone).

For this hypothetical (where the Declarant is still in control of the HOA), I do not know what a court would say.

Agreed with one caveat. I don't see where any contract law violation exists. The language is unambiguous. The intent is clear. There was no fraud or coercion. If a legal challenge is going to be successful, I think it would have to be based on something other than contract law.
I think we are talking past each other. All I know is that the courts say that even unambiguous language in a contract may not be enforceable by the courts under certain conditions. In the case of Declarants and covenants, and regardless of any covenant that allows the Declarant to grant a variance, the courts say that the Declarant does not have complete carte blanche to do so. In Florida, the language of the main case law is that the variance has to be reasonable and in particular, not destroy the general scheme or plan of development. This case law has been used to establish similar precedent in other states.

I am quoting well-established case law, using layperson's language. It's fine if you don't buy it, of course.
If the Development is complete, which is apparently the case in the OP's situation, then the Developer is long gone and the corporation that s/he used to build the development has no assets. There's nothing left to stop and there's no assets to go after.
I would not conclude these facts without more study.

NpS
(Pennsylvania)

Posts:4215


08/28/2021 9:10 PM  
Aug.

On Carissa's question - if the Developer can allow one lot to have a boat visible but the rest of the homes are not allowed - The answer is yes - That is correct. Like it or not, whether it seems reasonable or not - that's the correct answer. The Declarant had rights written in the Declaration that the HOA didn't have. And the Declarant could not transfer those special Declarant rights to the HOA.

So the HOA is stuck with some allowed and others not allowed. And that doesn't seem right. Got it. But as I said previously, everyone had advance notice in the Declaration that the Developer could make use of those special Declarant rights to create exceptions and that the HOA did not have the same rights. Yes the Developer did what he needed to sell homes and he kicked the can down the road for the HOA to deal with years later. Not surprising.

But you will never find case law that comes close to saying that, if a Declarant allows variances to one or two houses under special Declarant rights, then everyone must be allowed to have those same variances even though not allowed under ordinary HOA specs.

If your world-view applied, any variance allowed under special Declarant rights would have to be universally granted to all. But that would negate the clause that said that the Declarant could grant special variations to some but not all. Another problem with your approach is that these special variations are rarely granted publicly. It can be years before anyone else knows about these special variances and by that time the Declarant is usually long gone.

You talk about well established case law, but the facts of the 2 cases are unrelated on the most important issue - One case involves land that is yet to be developed and the other involves land that is fully developed. No court that I know of would ignore the distinction. Different facts. Different case law. That's how our legal system works.

Yes you are right that there are times when an appellate court applies a reasonableness standard to a contract. The question isn't if they do it. The question is how often and under what circumstances. Not as often as you would have others believe. And not under the circumstances that Carissa finds herself in.

Again, I recommend that Carissa puts energy toward finding out what the community wants on this issue. There are many initiative that could work for her.

Sikubali jukumu. Read all posts at your own risk.
MaxB4


Posts:1211


08/28/2021 9:32 PM  
Posted By NpS on 08/28/2021 9:10 PM
On Carissa's question - if the Developer can allow one lot to have a boat visible but the rest of the homes are not allowed - The answer is yes -


What if, of all the owners, only one had a boat? Or of all the owmers, only one made a request?
NpS
(Pennsylvania)

Posts:4215


08/28/2021 9:54 PM  
Posted By MaxB4 on 08/28/2021 9:32 PM
Posted By NpS on 08/28/2021 9:10 PM
On Carissa's question - if the Developer can allow one lot to have a boat visible but the rest of the homes are not allowed - The answer is yes -


What if, of all the owners, only one had a boat? Or of all the owmers, only one made a request?


What if a giant rock fell out of the sky onto that boat and it sank? What if the one who made the request died the next day?

Carissa has a unique set of facts that she can explore to the point that she finds out what people are willing to accept in her community. Her facts are her facts. Maybe take a survey. Maybe do a town hall. Maybe solicit opinions on the street. Maybe something else that would allow her to take the temperature of the room. This is a political question for Carissa's HOA to figure out.

It's a little sticky for Carissa because she benefits personally from a broader variance. From her posts, she seems to have a handle on navigating that stickiness.

It sucks to inherit crap, but we have all done it at one time or another.

Please know that I've seen lots of special Declarant rights clauses -- and this one looks like it would stand up pretty well to a challenge. There's a reason why they call it boilerplate.

Sikubali jukumu. Read all posts at your own risk.
MaxB4


Posts:1211


08/28/2021 10:14 PM  
In the first scenario, the insurance would pay up and they buy another boat, maybe bigger. In the second scenario, the other spouse now has it all to themselves.

WIN WIN!
NpS
(Pennsylvania)

Posts:4215


08/29/2021 2:14 AM  
Posted By MaxB4 on 08/28/2021 10:14 PM
In the first scenario, the insurance would pay up and they buy another boat, maybe bigger. In the second scenario, the other spouse now has it all to themselves.

WIN WIN!


Always always a bigger boat. Spouse awaiting trial with no bail. Without ability to bail, new boat sank. winwin.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1585


08/29/2021 6:48 AM  
Posted By NpS on 08/28/2021 9:10 PM
On Carissa's question - if the Developer can allow one lot to have a boat visible but the rest of the homes are not allowed - The answer is yes - That is correct. Like it or not, whether it seems reasonable or not - that's the correct answer.
Legally it's pretty much the correct answer when the Florida Supreme Court says it is. Until then, we'll never have much certainty.

I can appreciate that you thinkcase law does not exist on this point. You even assert this as fact. I strive for honesty. I do not know if such case law exists or not.

If your world-view applied, any variance allowed under special Declarant rights would have to be universally granted to all.
What world view? And no, this is not what I maintain.

I have repeatedly pointed out that variances the Declarant grants, if challenged in court, have to pass the courts' test of reasonableness, with an emphasis on whether the variance defeats the general scheme or plan of development. I am not in Florida. My state happens to have the same test. Other states do as well.
Yes you are right that there are times when an appellate court applies a reasonableness standard to a contract.
No, this is not what I say. What I am reporting from case law is that, when the Declaration grants a Declarant or board discretion to do xyz, the courts say this discretion must be exercised reasonably. If you had the ability to review even the applicable Restatement (summaries of the case law nationwide), then you might start to understand this.

You are also mixing CarissaM's hypothetical with the facts of her case. Several homes have a boat visible from the street. The covenant has not been enforced for some years. Only one of the owners contends that he has a variance on this point, but thus far this owner has not produced proof. Far more factors are in play than you seem to grasp.
AugustinD


Posts:1585


08/29/2021 6:56 AM  
Posted By NpS on 08/28/2021 9:54 PM
Please know that I've seen lots of special Declarant rights clauses -- and this one looks like it would stand up pretty well to a challenge. There's a reason why they call it boilerplate.
In the case law, it's not the 'reserved power' clause that has been challenged. Fact: There's nothing inherently wrong or illegal about such clauses. I think this is noted here like once or more a month when folks post a complaint about a Declarant doing xyz that seems inconsistent with the covenants, and experienced members here respond, "Under Declarant control, the Declarant has a lot of leeway (but not unlimited leeway) with the covenants, all to sell homes." What many plaintiffs have challenged, and sometimes with success, is how the clause is exercised in certain, specific instances.
AugustinD


Posts:1585


08/29/2021 8:01 AM  
Posted By CarissaM on 08/27/2021 5:24 PM
So the developer can allow a home to have a boat visible but the rest of the homes are not allowed?
For the hypothetical that CarissaM describes (as quoted in this post), at this point I think a plaintiff owner who challenged a declarant (that is still in control of the HOA) who removed a restriction on one lot but not all the lots might very well be successful.

The Flamingo Ranch v. Sunshine Ranches H, 1974 Florida Court of Appeals case I cited earlier concerns a Declaration that speaks of the developer's land being used as a "residential area." The developer sought to amend the restrictions so as to permit a portion of the property to be used for both business and residential purposes. In other words, the developer sought to grant variances to some lots but not others. The appeals court declared that the trial court failed to apply a test of reasonableness to the developer's amendment. The appeals court sent the case back to the trial court, ordering the trial court to determine if the amendment destroyed "the general scheme or plan of development." See https://casetext.com/case/flamingo-ranch-v-sunshine-ranches-h:

Other court cases nationwide reference Flamingo with respect to whether either a Declarant or vote of owners, both having certain authority under the Declaration to amend the covenants, could remove restrictions from some lots within a HOA but not others. See Appel v. Presley, 1991, NM Supreme Court, https://casetext.com/case/appel-v-presley-companies. On this point Appel ve. Presley references another NM Supreme Court decision, Montoya v. Barreras, 1970. In Montoya, the NM Supreme Court made clear that lifting restrictions on one lot but not all lots is permissible only under certain conditions:

"[An amendment removing restrictions on one lot] would permit the majority of owners, whose lots might not be adversely affected because of their insulated location in the subdivision, to authorize offensive consequences for the minority by removing or imposing restrictions only on certain lots within the area. Because the grantor encumbered all of the property with restrictions, we cannot infer from the declaration the intention that any subsequent change or changes in the restrictions could be made applicable to only one lot or a portion of the lots in the residential subdivision.

Our holding that the declaration does not permit the majority of owners to exempt one lot only from the residential restrictions, contrary to the vested rights of the minority of owners, does not necessarily mean that the plaintiff was or is without a remedy. This court has long recognized that individual lots in a subdivision may be relieved of restrictive covenants if there has been such a change in the conditions which existed when the covenants were imposed as to defeat the intended objects and purposes of the covenants and their enforcement is no longer necessary to afford the protection originally contemplated. Williams v. Butler, 76 N.M. 782, 418 P.2d 856 (1966); Mershon v. Neff, 67 N.M. 311, 355 P.2d 128 (1960); Chuba v. Glasgow, 61 N.M. 302, 299 P.2d 774 (1956). See also the majority opinion and the dissent in Mason v. Farmer, 80 N.M. 354, 456 P.2d 187 (1969). In the present case, however, no allegation of change of conditions was raised by the pleadings nor was any finding concerning change of conditions requested or made.

To the extent that it relieves and excludes the plaintiff's lot from the operation and effect of the restrictive covenants, the decree is reversed with directions to enter a new decree consistent with this opinion.
"

Does Florida have similar case law? Maybe. If this case law existed, would it be relevant to the facts in this thread? Quite possibly. But even if Florida has a case nearly identical to the New Mexico decision above, one is still stuck with speculating on what a court would say.

If I had to bet, then I think CarissaM's and my own gut feelings are correct. I think a court would say that a Declarant lifting a restriction on one lot but not all lots is generally not something a court will permit.

What does this mean, practically speaking? If this one owner in CarissaM's HOA can cough up a variance, in writing, granted by the Declarant, then the variance wording should be examined closely to see whether the Declarant meant it to apply to just one lot or to all lots. If this variance, in writing, exists, either the board should go see an HOA attorney, or the board can do whatever based on all the facts here and the board's own best guess. The facts pertaining to abandonment or acquiescence may be more important than any of the other facts here.
Posted By NpS on 08/28/2021 9:10 PM
But you will never find case law that comes close to saying that, if a Declarant allows variances to one or two houses under special Declarant rights, then everyone must be allowed to have those same variances even though not allowed under ordinary HOA specs.
I expect NpS will contend that the case law above does not come close yada.

I am posting for the archives, for those who have a feel for how case law works, understanding that the case law is often only guidance and may not be dispositive (or 'sufficiently dispositive') for a situation where the facts are similar but not identical to the case law.
CathyA3
(Ohio)

Posts:2394


08/29/2021 8:30 AM  
Some of the issues with variances are going to depend on where you're located - no boat issues in my community - but here's where I've seen variances used by the Developer (I work part time for said Developer):

* Something unexpected comes up during the initial phase of development that requires additional legal agreements or changes to the CC&Rs

Example: the state's department of transportation decided to widen the multi-lane road that provides the sole access to our community and to put a median in the middle, meaning we could no longer turn left into or out of my community. The developer negotiated additional access through adjacent commercial properties in exchange for our maintaining this access.

* Some sections of the property make it difficult or impossible to build homes that are similar to others in the community or to sell these homes.

We refer to those as "impaired lots" and they're priced lower than others in the community. The impairment can be sitting next to a busy highway, a slope that reduces the buildable area, drainage issues, the need for easements, etc. In cases like this, the Developer may want to do things a little differently than is done in the rest of the community in order to sell that lot. It doesn't make any sense to allow other homeowners to do the same things because they're not needed - the variances aren't a special benefit, they're a method of dealing with a disadvantage that others don't have.

* Economic factors

It's not unusual for a developer to go out of business or to make changes in the types of homes that are being built during a housing slump. It happened in my condo community: new floorplans, change in the planned number of units in the community, and simplified designs that were cheaper to build. If developers/builders were not allowed to do this, they wouldn't be able to respond to market conditions and would be forced out of business. The developer's broad leeway is a recognition that he's in the business of selling homes, which is rarely a concern for the HOA itself (property values, anyone?). :-)

One example from my community where the developer's decision may cause problems in the future:

While building during the last housing slump, one way we saved money was to create smaller patios. In cases where the townhome was sold pre-construction, the buyer often asked for an enlarged patio which was an available option. The potential problem comes when an owner with one of the postage sized patios asks to enlarge it. On one hand, that's encroachment on the common area, so not allowed. On the other hand, they're asking for something that others have and that would be consistent with the majority of other units. Fortunately the one time it came up, the common area was not suitable/sloping, the change would have altered drainage patterns to the detention pond, and the owner wanted it in order to use their grill which would have violated state fire codes since it would still be too close to the building. So the board denied the request. Similar requests in the future may not be so obvious.

In general, I think variances can be used wisely or unwisely, and the latter can set up the HOA for continuing conflict.


AugustinD


Posts:1585


08/29/2021 9:15 AM  
CathyA3, thank you for the real life examples of when a developer appears to be on strong legal ground for granting a variance. I think the examples where some lots had a restriction lifted while others did not are particularly instructive. It appears to take pretty special physical or financial circumstances for a Declarant to believe a variance that lifts (or negates, say) a restriction on some lots but not others is justified. I think this is consistent with the bit of case law I am seeing.

To return to CarissaM's query:
Posted By CarissaM on 08/27/2021 5:24 PM
So the developer can allow a home to have a boat visible but the rest of the homes are not allowed?
From CathyA3's examples, I do not think developers are in the habit of granting a variance to one lot simply because a potential buyer wants a certain luxury or advantage, with said luxury or advantage having nothing to do with lot impairments or even the developer needing to sell the lot. Instead, I can see the developer possibly agreeing to amend the covenants (applying of course to all owners), after, say, maybe taking the temperature of the then-owners to see if any of them would make legal trouble over such an amendment.
CarissaM


Posts:0


08/29/2021 11:06 AM  
It is all speculative really, upon reviewing the lot data by home there is no written variance for a boat for a single lot. So all homes are in violation.

This was a neighborhood that started with two homes, very custom homes, then the market plummeted and a second developer came in and built homes. It appears according to my prior President, that the second developer allowed boats on lots while being visible from the street. When it turned over to the HOA, they kept it status quo.

I definitely cannot get the votes to make a change. The ship sailed, twice, and no dice.

At this point, looks like we (as homeowners in violation) can wait for the violation and argue it's abandoned based on Board complacency for 7 years and the fact that 25% of the homes have a boat or an RV. So it eludes to a new buyer that it's ok as well. I completely understand the need to enforce across the board and that means myself included. If I have to take down a shed and build a giant boat enclosure, so be it.

Thanks for the added thoughts and opinions and the 74 ruling you found Auguie.
AugustinD


Posts:1585


08/29/2021 11:20 AM  
Posted By CarissaM on 08/29/2021 11:06 AM
It appears according to my prior President, that the second developer allowed boats on lots while being visible from the street.
heh . I agree nothing is certain here. But I like the chances of those who have boats visible from the streets.
NpS
(Pennsylvania)

Posts:4215


08/30/2021 5:54 AM  
Congratulations Carissa on coming to terms with your visible boat issues and concerns. If your Board discusses enforcement, you are in a better position to inform. One caution for you personally is that you wear 2 hats - the owner who is in violation and the board member who has the responsibility to make decisions in the best interest of your HOA - And from your statement of willingness to put up an enclosure if required, I think you demonstrate that have your priorities in order.

I think that Cathy's actual experience is an excellent example of a financially driven act by a Developer that can cause problems for the community down the road.

Posted By CathyA3 on 08/29/2021 8:30 AM
One example from my community where the developer's decision may cause problems in the future:

While building during the last housing slump, one way we saved money was to create smaller patios. In cases where the townhome was sold pre-construction, the buyer often asked for an enlarged patio which was an available option. The potential problem comes when an owner with one of the postage sized patios asks to enlarge it. On one hand, that's encroachment on the common area, so not allowed. On the other hand, they're asking for something that others have and that would be consistent with the majority of other units. Fortunately the one time it came up, the common area was not suitable/sloping, the change would have altered drainage patterns to the detention pond, and the owner wanted it in order to use their grill which would have violated state fire codes since it would still be too close to the building. So the board denied the request. Similar requests in the future may not be so obvious.

In general, I think variances can be used wisely or unwisely, and the latter can set up the HOA for continuing conflict.



Although her Board dodged one challenge, Cathy said that resolving a similar request in the future may not be so straightforward. And I think that is true of many Associations that are stuck with these types of inconsistencies regardless of how they came about. It's so common in many communities to hear: "If that's allowed, then what I want has to be allowed too." And each Association must figure out how to address these problems based on many factors that are unique to that community - And in many, like in Cathy's, an attempt to resolve the issue finally and completely is not taken on. And I think that's not such a bad outcome. Yes, it will probably come up again - but the willingness to take on broader action may be seen differently at a later time when circumstances may have changed again.

My issue with Aug is different. I have the greatest respect for his willingness and desire to dig into code and documents. But when it comes to case law interpretation, I think he sometimes goes too far in his generalizations.

While I cannot say that I looked at every case that Aug cited, there is a common thread in the facts in those I looked at. They involved a change of use - Most commonly allowing a business to operate in a residential only community. That's a massive change. The residential nature of the community itself would be changed by allowing businesses. More parking, traffic, strangers, etc. Now that would be a real basis for applying a reasonableness standard. One case involved an attempt to build homes on what should have been a golf course. Massive change in the open land and the human and traffic density of the community. Applying the reasonableness standard makes sense here too.

The facts of those cases is nothing like the situations described by Carissa (or Cathy). Being able to see boats is nothing like turning residential into commercial or developing land that was supposed to be relatively open.

There is no challenge to the essential use when a boat is allowed to be visible.

Instead, I see Carissa's boat challenge as something similar to an Association that prohibits commercial vehicles. Maybe they don't allow commercial signs. Or they don't allow certain types of vans or trucks or other types of vehicles to be in open view or be parked on streets or whatever. (Parking problems and enforcement issues are probably one of the top 5 problems that Associations face.)

These vehicle-type issues seem to be more like what's happening for Carissa. (She even mentions RVs, so I assume that RVs are restricted, but the Board is not taking action against those violations either.) I'm not saying that's good or bad, I'm merely saying that many Associations have difficulty getting compliance on vehicle, boat, etc restrictions. And enforcement has its own problems in those situations.

But I don't see these boat or vehicle issues as changing the essential nature of the community. And changes to essential use is what Aug's cases hang their rulings on.

A final word on the issue of reasonableness. Many zoning codes have been modified to allow for more variation. And in many cases, zoning codes override HOA rules. It is truly an evolving landscape that can take decades.

For all these reasons and more, I am not a fan of saying that the only reasonable thing to do is allow everyone to take advantage of an exception granted to one. Everyone's facts are different. And no one should rush in with a solution, when they don't have a good sense of whether they are poking a beehive with a stick.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1585


08/30/2021 6:20 AM  
Posted By NpS on 08/30/2021 5:54 AM
For all these reasons and more, I am not a fan of saying that the only reasonable thing to do is allow everyone to take advantage of an exception granted to one.
According to the most recent post by CarissaM, the signs now are that the Declarant granted the exception to all. Which interestingly, is consistent with CarissaM's and my own gut feeling that such an exception granted to one is not reasonable.

I do not think the Declarant-issued variances that CathyA3 describes should be spoken of as though they were at all like either those in the case law I cited or like what CarissaM is describing at her HOA. Nor do I believe that the variances CathyA3 described are causing problems.

It seems like you think any time I post case law I mean it as gospel. I think I qualify carefully. It's as though you think the case law, which typically yields "rules" that are universal nationwide, has no value.

I understand all volunteer directors could not possibly parse case law. Many simply lack the skills to reason well and keep a lot of things in mind at the same time. According to you, making decisions largely without the guidance of statutes, covenants, an attorney or case law, as you indicate is common at your HOA, works for people at your HOA. No one's suing, no one's threatening to sue. Great. But at other HOAs/COAs threats of a lawsuit happen. Many here do want guidance from statutes and case law, especially the general rules that derive from case law and are not in statutes. Sites like justia.com and casetext.com are free to the public. There's no reason participants here should not use these sites to try to learn a little about what the courts are saying, and to help prepare for meetings with attorneys. Also, yes, reading case law can help those with enough motivation and brains learn to think critically and logically about the language of covenants and the "why's" of certain covenants, especially when people are threatening lawsuits.
CathyA3
(Ohio)

Posts:2394


08/30/2021 8:08 AM  
Posted By NpS on 08/28/2021 9:54 PM
... snip ...

Carissa has a unique set of facts that she can explore to the point that she finds out what people are willing to accept in her community. Her facts are her facts. Maybe take a survey. Maybe do a town hall. Maybe solicit opinions on the street. Maybe something else that would allow her to take the temperature of the room. This is a political question for Carissa's HOA to figure out.

It's a little sticky for Carissa because she benefits personally from a broader variance. From her posts, she seems to have a handle on navigating that stickiness.

It sucks to inherit crap, but we have all done it at one time or another.

Please know that I've seen lots of special Declarant rights clauses -- and this one looks like it would stand up pretty well to a challenge. There's a reason why they call it boilerplate.



Just wanted to highlight the bit in bold. It's a lot sticky. Carissa must recuse herself from all discussions and voting because she has a conflict of interest. Even sharing all the the info she has acquired here is questionable because of the potential for unconscious bias. Her participation in discussion and voting would be grounds for others who disagreed to challenge the result, creating the very sort of turmoil she said she wanted to avoid.

Unfortunately conflict is kinda built in to variances of this sort.
AugustinD


Posts:1585


08/30/2021 8:46 AM  
Posted By CathyA3 on 08/30/2021 8:08 AM
Carissa must recuse herself from all discussions and voting because she has a conflict of interest. Even sharing all the the info she has acquired here
I figure: If and when CarissaM as an owner receives a violation notice, she gets to defend herself with anything she has.
CathyA3
(Ohio)

Posts:2394


08/30/2021 9:00 AM  
Posted By AugustinD on 08/30/2021 8:46 AM
Posted By CathyA3 on 08/30/2021 8:08 AM
Carissa must recuse herself from all discussions and voting because she has a conflict of interest. Even sharing all the the info she has acquired here
I figure: If and when CarissaM as an owner receives a violation notice, she gets to defend herself with anything she has.



Yes, of course. But that will be in the context of a hearing rather than during the board meetings and discussions that led up to her receiving the violation notice.

It may seem counterproductive that someone who is well informed on an issue can't participate in the initial discussions and maybe lead to a more thoughtful decision by the other board members.

But I think conflicts of interest are a big deal, especially since this is a pretty clear one. Homeowners are sensitive to board members who aren't playing by the same rules as the rest or who are getting special privileges because of their positions. The negative effects of getting this issue wrong has the potential to spread beyond it if the membership loses confidence in the board's integrity.
AugustinD


Posts:1585


08/30/2021 9:10 AM  
Posted By CathyA3 on 08/30/2021 9:00 AM
It may seem counterproductive that someone who is well informed on an issue can't participate in the initial discussions and maybe lead to a more thoughtful decision by the other board members.

But I think conflicts of interest are a big deal, especially since this is a pretty clear one. Homeowners are sensitive to board members who aren't playing by the same rules as the rest or who are getting special privileges because of their positions. The negative effects of getting this issue wrong has the potential to spread beyond it if the membership loses confidence in the board's integrity.
FWIW, I agree with all. Especially since I can see folks lawyering up over this. In the latter case, she is an adverse party (blah blah TMI TLDR)...

Though I suspect CarissaM is aware of this and at most, maybe needed a suggestion on the point as to how she should proceed to get justice. (Who doesn't need hoatalk members' advice? ;) ) As CathyA3 indicates, CarissaM is stuck recusing herself from board discussions with her director's hat on. Given the possibility of litigation, I suppose CarissaM should not even attend those parts of the board meetings where this is discussed in executive session.
CathyA3
(Ohio)

Posts:2394


08/30/2021 9:19 AM  
Posted By AugustinD on 08/30/2021 9:10 AM
Posted By CathyA3 on 08/30/2021 9:00 AM
It may seem counterproductive that someone who is well informed on an issue can't participate in the initial discussions and maybe lead to a more thoughtful decision by the other board members.

But I think conflicts of interest are a big deal, especially since this is a pretty clear one. Homeowners are sensitive to board members who aren't playing by the same rules as the rest or who are getting special privileges because of their positions. The negative effects of getting this issue wrong has the potential to spread beyond it if the membership loses confidence in the board's integrity.
FWIW, I agree with all. Especially since I can see folks lawyering up over this. In the latter case, she is an adverse party (blah blah TMI TLDR)...

Though I suspect CarissaM is aware of this and at most, maybe needed a suggestion on the point as to how she should proceed to get justice. (Who doesn't need hoatalk members' advice? ;) ) As CathyA3 indicates, CarissaM is stuck recusing herself from board discussions with her director's hat on. Given the possibility of litigation, I suppose CarissaM should not even attend those parts of the board meetings where this is discussed in executive session.



Yes, she needs to be completely hands off, otherwise the process will be seen as tainted.
CarissaM


Posts:0


08/30/2021 12:23 PM  
Posted By CathyA3 on 08/30/2021 8:08 AM
Posted By NpS on 08/28/2021 9:54 PM
... snip ...

Carissa has a unique set of facts that she can explore to the point that she finds out what people are willing to accept in her community. Her facts are her facts. Maybe take a survey. Maybe do a town hall. Maybe solicit opinions on the street. Maybe something else that would allow her to take the temperature of the room. This is a political question for Carissa's HOA to figure out.

It's a little sticky for Carissa because she benefits personally from a broader variance. From her posts, she seems to have a handle on navigating that stickiness.

It sucks to inherit crap, but we have all done it at one time or another.

Please know that I've seen lots of special Declarant rights clauses -- and this one looks like it would stand up pretty well to a challenge. There's a reason why they call it boilerplate.



Just wanted to highlight the bit in bold. It's a lot sticky. Carissa must recuse herself from all discussions and voting because she has a conflict of interest. Even sharing all the the info she has acquired here is questionable because of the potential for unconscious bias. Her participation in discussion and voting would be grounds for others who disagreed to challenge the result, creating the very sort of turmoil she said she wanted to avoid.

Unfortunately conflict is kinda built in to variances of this sort.





Unfortunately, 2/3 of the board are in violation with zero other homeowner in the community willing to step up to be on the board. I can't change that.

At this point my best bet is to wait until a homeowner brings a grievance because the President has an RV. The Vice is not in violation. I'm the Treasurer with a boat. 2/3 out of compliance.
CarissaM


Posts:0


08/30/2021 12:33 PM  
We lose the quorum if those affected by the declaration are not present to discuss the violation or the idea of a variance. But we've already established that we can't get a variance because the developer didn't transfer that power to the Board. So pretty easy here, no variance allowed.

Either get an amendment or wait for a homeowner to proceed with a grievance about a boat behind a fence being in violation because it's visible from the street.

Meanwhile, I'll start to look into other options to hopefully avoid having to take down a 12x15 shed and replace with an enclosure for a boat. I don't know what is more expensive...fighting a board or just building the enclosure.

AugustinD


Posts:1585


08/30/2021 12:38 PM  
Posted By CarissaM on 08/30/2021 12:23 PM
Unfortunately, 2/3 of the board are in violation with zero other homeowner in the community willing to step up to be on the board. I can't change that.

At this point my best bet is to wait until a homeowner brings a grievance because the President has an RV. The Vice is not in violation. I'm the Treasurer with a boat. 2/3 out of compliance.
I love it.

I am going to trust that you have thoroughly researched whether quorum is possible, including looking at FS 720 and FS 617.

I personally would not be looking at other options until someone complains. There are just too many signs of an abandoned covenant or acquiescence by prior Boards (including the 2014 Declarant) on the point.

Do consider calling the officers who are also directors what they are. E.g. VP-Director Jones. Treasurer-Director Smith. President-Director Gallegos. Officers are not always directors. Directors are not always directors. But much of the time, each director is also one of the officers. Trying to help over an internet forum is hard enough without having to verify whether an officer is also a director yada yada [end kvetching].
CarissaM


Posts:0


08/30/2021 1:00 PM  
Posted By AugustinD on 08/30/2021 12:38 PM
Posted By CarissaM on 08/30/2021 12:23 PM
Unfortunately, 2/3 of the board are in violation with zero other homeowner in the community willing to step up to be on the board. I can't change that.

At this point my best bet is to wait until a homeowner brings a grievance because the President has an RV. The Vice is not in violation. I'm the Treasurer with a boat. 2/3 out of compliance.
I love it.

I am going to trust that you have thoroughly researched whether quorum is possible, including looking at FS 720 and FS 617.

I personally would not be looking at other options until someone complains. There are just too many signs of an abandoned covenant or acquiescence by prior Boards (including the 2014 Declarant) on the point.

Do consider calling the officers who are also directors what they are. E.g. VP-Director Jones. Treasurer-Director Smith. President-Director Gallegos. Officers are not always directors. Directors are not always directors. But much of the time, each director is also one of the officers. Trying to help over an internet forum is hard enough without having to verify whether an officer is also a director yada yada [end kvetching].





We have no Board of Directors. Just the Officers.

We have a 10% quorum requirement for member meetings. The usual attendees are the officers and one or two other homeowners. That is 5 people and makes up 12% for the quorum. We BARELY make that requirement to even have a meeting. At our 2021 Annual Meeting, we had a record 12 people present and only one wanted to volunteer as tribute to be on the board. We didn't even have to vote, there was no choice. Our President resigned, the VP slid into her place and one homeowner volunteered to be the VP. No third volunteer. I was there and did not volunteer. They approached me after to help because they had a board of two people.

It's a sticky situation. It's why I'm trying to figure out the best bet for the community. My interests are not priority here.

CarissaM


Posts:0


08/30/2021 1:09 PM  
I did find where the developer did a waiver though so that was helpful to see it in use for the community. They granted concrete driveways, forward facing garages, Bahia grass, and removal of citrus trees (removal of trees was forbidden). Nothing on boats or RV's so seems it was likely more of a sales pitch...half acre lots, bring your boat, plenty of room. NOT hey you don't have to follow the declarations. All I have for some of the information I receive is a prior board members opinion of what happened when they built. I'm the only "noob" on the board.
AugustinD


Posts:1585


08/30/2021 1:13 PM  
Posted By CarissaM on 08/30/2021 1:00 PM
We have no Board of Directors. Just the Officers.
Per FS 720 and the Nonprofit Corporation Act, your HOA had darn well better have directors.

Do you realize there is a difference between officers and directors?

The owners elect directors. The Bylaws then usually say the directors elect the officers.

Officers do not have the legal authority to run the corporation.

Ask questions. You're too intelligent to let yourself and this board mess up on such an important point.


FS 617: 
617.01401 Definitions.—As used in this chapter, the term:
“Board of directors” means the group of persons vested with the management of the affairs of the corporation irrespective of the name by which such group is designated, including, but not limited to, managers or trustees.

617.0801 Duties of board of directors.
—All corporate powers must be exercised by or under the authority of, and the affairs of the corporation managed under the direction of, its board of directors, subject to any limitation set forth in the articles of incorporation.
CarissaM


Posts:0


08/30/2021 1:39 PM  
In 2008 there was one Director, the Developer. In 2012 the officers became directors as evidence by Sunbiz titles PD, VPD, STD. It continued this way until 2016. Then the PD became P. The VPD stayed VPD. The STD became ST. This has carried forward since 2016 when I assume, they fired the PM and decided to self manage.

Yes I am an officer but I am not a director and yes I know the difference.

Back to the attorney I suppose to see what next steps are. The officers currently report to no one, haven't been reporting to anyone, we can't even get members to show up to vote on officers, we surely won't get them to vote on directors to then elect officers.

Perhaps the intent is to keep the officers as directors and Sunbiz is incorrect. I haven't a clue. As I stated when I started posting here, I'm only as good as the information I learn as I go.
CarissaM


Posts:0


08/30/2021 1:41 PM  
"You're too intelligent to let yourself and this board mess up on such an important point."

It certainly looks like I'm not messing up anything that was not already a hot mess express roaring into the station.
AugustinD


Posts:1585


08/30/2021 1:48 PM  
CarissaM, has your HOA run been running elections for directors at the last few annual meetings?
AugustinD


Posts:1585


08/30/2021 1:49 PM  
Of course the good news is that, without any directors, the HOA has no authority to issue violations of the covenants. None.
CarissaM


Posts:0


08/30/2021 2:07 PM  
I know this is ridiculous but no….

No, we don’t have elections. The reason we don’t have elections is because we can’t get people to volunteer to be elected. What do you do when you have a president, vice president, and a secretary with no other person willing to step in? I assume that you do what the prior officers and or directors did which was keep the same people in office and attempt to change it every year. So every year the president said hey it’s time for electing officers do we have any volunteers? And not a soul volunteers. So she stayed in office.

When she resigned, the VP filled in as P. The Secretary became the VP. Together, they came to me and asked me if I would be willing to help because they felt the board needed to be three people because what do you do when the two people can agree? So I agreed to help out. I have a financial background, I know a little bit of legalese, and I’m highly organized so I was a good fit for the position.

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