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Subject: Statute of Limitations
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Author Messages
ToddO1
(Florida)

Posts:4


11/05/2021 11:09 AM  
Does this mean (see below Section 3) that if you do something to your property and the HOA does not send you a violation within a year, then you are in compliance? For example, say you paint your house door with a non-approved color and 2 years later the HOA tells you it's not approved and you're not in compliance. If you can show them proof it's been that color for over a year (like google street view or the property appraiser site), then can they do anything if their records show this is the first letter they sent you? Another example would be if you placed rocks in your flower bed.

Section 3. Violations. The work must be performed strictly in accordance with the plans as approved. If after plans have been approved, the improvements are altered, erected, or maintained upon the Lot other than as approved, same shall be deemed to have been undertaken without ARB approval. After one (1) year from completion of any improvement, addition or alteration, said improvement shall, in favor of purchasers and encumbrances in good faith and for value, be deemed to comply with the provisions hereof unless a notice of such noncompliance executed by any member of the ARB shall appear in the Orange County public records, or legal proceedings shall have been instituted to enjoin the noncompliance or to enforce compliance with these provisions.


Thanks
SheilaJ1


Posts:0


11/05/2021 11:15 AM  
Did you get approval?

It doesn’t sound like you did. Then no statute of limitations, the arb can enforce whenever they please.
BenA2
(Texas)

Posts:1104


11/05/2021 11:39 AM  
I believe that your are right. Any improvement is deemed in compliance if not put on notice within a year. More specifically, if the violation letter has not been filed with the county or legal proceedings have not been filed within one year, then you are in compliance. That is a higher standard than merely showing they sent you a violation letter.
SheliaH
(Indiana)

Posts:4284


11/05/2021 12:06 PM  
These paragraphs are why I HATE legalese, but here goes (fair warning, you may not like it).

My read is that if the HOA APPROVED your change request ("The work must be performed strictly in accordance with the plans as approved") but then you went ahead and made a change contrary to what they approved ("If after plans have been approved, the improvements are altered, erected, or maintained upon the Lot OTHER THAN AS APPROVED {emphasis mine}) you violated that portion of the CCR ("same shall be deemed to have been undertaken without ARB approval.")

If you don't fix it within one year after you completed the project, the improvement shall be considered to be in compliance IF the house was sold (any improvement, addition or alteration, said improvement shall, in favor of purchasers and encumbrances in good faith and for value, be deemed to comply with the provisions hereof"). However, IF any member of the ARB took legal action against you to compel you to bring the area into compliance, the new owner will be held responsible for making those changes ("unless a notice of such noncompliance executed by any member of the ARB shall appear in the Orange County public records, or legal proceedings shall have been instituted to enjoin the noncompliance or to enforce compliance with these provisions.")

As Sheila said, not enforcing the CCRs doesn't necessarily mean they're deemed unenforceable. A judge would have to make that call, and it would likely depend on what was done and when, did the owner file an exterior change request, did the new owner buy the house with the promise everything was decent and in order - until the board said it wasn't, etc.

It would be better if the community was consistent in rules enforcement, but it's also a pain in the ass (because people counter with stuff like this or think rules apply to everyone else but them). Sometimes the board may be busy with other issues like building reserves. Most (all?) of the homeowners may not squawk about anyone's exterior change for years until new owners come along and realize the community has lost its original design and look, get pissed off and elect a board with the mandate that THEY finally enforce the rules. Some rules are also enforced more than others for whatever reason, including selective enforcement and then the whole mess winds up in court anyway.

In your case, it sounds like you're looking for a loophole and I don't think it'll work. If you make an exterior change YOU KNOW isn't allowed and don't bother to find out what the rules are or follow the process, the association is within its rights to come after you a year or two (or three, maybe more) after the fact. If you think your door color should stand, go ahead and fight it. You might win because it's been two years and someone should have noticed by now - or you'll have to explain why you ignored the design standards in the first place.

So, that's my take, but I'm not an attorney (and haven't slept in a Holiday Inn since August!) If you want legal advice, go to a private attorney - what's true in my state may not be the case in yours or vice verssa.
BenA2
(Texas)

Posts:1104


11/05/2021 12:57 PM  
This sentence stands alone: "After one (1) year from completion of any improvement, addition or alteration, said improvement shall, in favor of purchasers and encumbrances in good faith and for value, be deemed to comply with the provisions hereof unless a notice of such noncompliance executed by any member of the ARB shall appear in the Orange County public records, or legal proceedings shall have been instituted to enjoin the noncompliance or to enforce compliance with these provisions."

There is no condition mentioned that it only applies if you sought or received approval. I do agree that it is always a good idea to get an attorney's advise.
CathyA3
(Ohio)

Posts:2588


11/05/2021 1:08 PM  
My CC&Rs contain a statement that failure to enforce any of the provisions in the document does not preclude enforcement of them in the future.

It's a recognition that even responsible boards can have different ideas about what constitutes an appropriate level of enforcement.

It also means that for us "statute of limitations" is a non-starter.

However, this article refers to a limit of five years in which legal action must be taken:

https://www.naplesnews.com/story/money/real-estate/2018/01/13/there-time-limit-unauthorized-nonconforming-changes-homes/1006882001/

The article is a few years old though, so things may have changed. Another potential complication may be the right of individual homeowners to enforce covenant terms via lawsuit - since it appears that the article above refers specifically to actions taken by the HOA. I've seen a number of CC&Rs for communities in my area that do give individual homeowners that right.

ToddO1
(Florida)

Posts:4


11/08/2021 10:32 AM  
Thanks everyone...I guess everything can be interpreted differently, so there is no clear answer.
JohnC46
(South Carolina)

Posts:11659


11/08/2021 11:19 AM  
I say if permission was never given, there is no time limit that makes what one did approved.
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Forums > Homeowner Association > HOA Discussions > Statute of Limitations



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