Resident in Arrears wants permission to install pool

Started by PatR • 85 replies • 11455 views

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PatR (Florida)
Posts: 139

Posted:

We have a resident who is about $5000 in arrears with his HOA dues. They are seeking an ARC approval for a pool.... Our lawyer is advising that we have to allow the pool. Sort of an apples and oranges thing. His home can be forclosured upon soon for non payment of HOA dues, it is that bad. Any advice? This is in Florida.

FYI: The resident is also an Attorney...

Thanks

Pat

DonnaS (Tennessee)
Posts: 5,671

Posted:

Pat,

Oh my gosh, this brings back some memories of a Lawyer/resident who knows just how far they can push an association before something drastic has to be done.

Send him the required letters on the delinquent dues, then if no response, send the registered letter. If no response, LEIN HIM!!!! Then let him figure out how to get his sorry butt out of this. This lawyer of all people knows what his responsibilities are. Florida has Statutes to take care of this problem. Delinquent dues can also be forclosed on a property in Florida.

And what's with your lawyer? A member not in good standing looses his privledges for using the amenities and common grounds. The ARC should slow down this approval until you can get this started with the leining.

Our association has many attorneys living (my Fl. one)within the community. And many of them push the limit all of the time with ARC issues and Rules and Regs. The good ones are wonderful to work with but the bad ones are SOOOO bad. Get started on this and inform the association lawyer that there will be no foot dragging either.

PatR (Florida)
Posts: 139

Posted:

Thanks Donna....My thoughts exactly...

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

Quote:

Posted By PatR on 08/06/2008 7:00 AM
Thanks Donna....My thoughts exactly...

I have a different take (as usual).

Let them, (indeed, encourage them) to install the pool before foreclosure. It will make the value of the home greater when the foreclosure auction is held.

If there is a lien on the home for the past due fees, I suppose the owners plan on paying for the pool in cash. I doubt they could secure a home equity loan with an outstanding lien.

Question about Florida statutes:

Is any homeowner able to file suit to enforce covenants, or is such action restricted to the association?

BradP (Kansas)
Posts: 2,640

Posted:

Pat:

As others have said if you haven't already lien the home...I think your lawyer is right in the fact that you have to allow the pool. While being delinquent on your assessments will disqualify you from using common property I don't think it disqualifies you from making improvements to your home or property.

MikeS1
Posts: 668

Posted:

Lien the property quick.. If he's financing the pool, then he probably won't be able to the install the pool. Perhaps, he's consider paying you folks so he can install the pool later. I don't know if a pool necessarily increases the value of the home. If anything, it may limit your target market. Not everyone wants a pool with all the maintenance issues and liability. Good luck.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Everyone,

Now I am NOT a lawyer but reading this paragraph from the Statutes about ARCs, read the sentence that starts with "Neither". Could that be interpreted to mean that because the ARC could deny the pool because the applicant IS NOT following the CC&RS by not paying his dues? After all, DUES are stated in the CC&Rs

(5) Neither the association nor any architectural, construction improvement, or other such similar committee of the association shall enforce any policy or restriction that is inconsistent with the rights and privileges of a parcel owner set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, whether uniformly applied or not. (*** Neither the association nor any architectural, construction improvement, or other such similar committee of the association may rely upon a policy or restriction that is inconsistent with the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants,)**** whether uniformly applied or not, in defense of any action taken in the name of or on behalf of the association against a parcel owner.

PatR (Florida)
Posts: 139

Posted:

I am having the President speak to the attorney ASAP re where we are in the lien process.... It's always something!

DonnaS (Tennessee)
Posts: 5,671

Posted:

George,
In answer to your question about a homeowner able to file suit to enforce covenants? The answer is "YES"!! Below is the Statute wording which allows this.

720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.--

(1) Each member and the member's tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress(**** ALLEDGED FAILURE OR REFUSAL TO COMPLY WITH THESE PROVISIONS MAY BE BROUGHT BY THE ASSOCIATION OR BY ANY MEMBER AGAINST: )****

(a) The association;

(b) A member;

(c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and

(d) Any tenants, guests, or invitees occupying a parcel or using the common areas.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

Quote:

Posted By DonnaS on 08/06/2008 7:32 AM

Everyone,

Now I am NOT a lawyer but reading this paragraph from the Statutes about ARCs, read the sentence that starts with "Neither". Could that be interpreted to mean that because the ARC could deny the pool because the applicant IS NOT following the CC&RS by not paying his dues? After all, DUES are stated in the CC&Rs

Oh, this is the stuff lawsuits are made of . . .

Remember the homeowner is a lawyer.

My guess is that a fair reading of the covenants by a court would be that association fees are of a different character than other covenants, and that there are specific remedies for fees in arrears, making the argument tenuous at best. Nevertheless, that is why the association has a lawyer.

PatR (Florida)
Posts: 139

Posted:

The lawyer's phone is ringing as we speak!

DonnaS (Tennessee)
Posts: 5,671

Posted:

George,
You are probably right on that one.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Definitely lien him, but curious, here's what our CC&Rs say about "in-ground pool" approvals:

"(d) No aboveground swimming pools shall be erected or placed on any lot in XXXXXXX. In-ground swimming pools design and placement must be approved in writing by the Architectural Committee, which approval shall be within the sole and absolute discretion of the Architectural Committee and may be arbitrarily and unreasonably withheld."

One of the Rules the ARC COMM has established is that any requests from homeowners not in good standing may be denied.

PatR (Florida)
Posts: 139

Posted:

He has been liened and is quite close to losing his home....

Sad that somone who can afford a pool would get him/herself into a situation that causes them to lose a home for less then 10k when then can afford a 40k pool.

Hmmmmmm......Am I missing something???

DonnaS (Tennessee)
Posts: 5,671

Posted:

Pat,
Knowing what kind of lawyer he is (Gerald, I am presuming by his behavior), he might have put a minimum down and would default on the remainder of balance. And he still ends up with a pool.

I personally know a couple of pool companies in S. Florida who got stuck with unpaid installations by a hundred or so becaue of this very thing. Who suffers then. The pool installer and his company because he still has to pay for all of the materials that were installed by vendors and his employees. I also find it hard to believe that any attorney is not smart enough to keep himself out of this kind of trouble but when greed is the driving force, anything can happen.

PatR (Florida)
Posts: 139

Posted:

Good point...

GeraldT4
Posts: 1,022

Posted:

Quote:

Posted By DonnaS on 08/06/2008 10:02 AM

Pat,
Knowing what kind of lawyer he is (Gerald, I am presuming by his behavior), he might have put a minimum down and would default on the remainder of balance. And he still ends up with a pool.

I personally know a couple of pool companies in S. Florida who got stuck with unpaid installations by a hundred or so becaue of this very thing. Who suffers then. The pool installer and his company because he still has to pay for all of the materials that were installed by vendors and his employees. I also find it hard to believe that any attorney is not smart enough to keep himself out of this kind of trouble but when greed is the driving force, anything can happen.

DonnaS - You wrote, "(Gerald I am presuming by his behavior)". Are you referring to me?

RW1 (Texas)
Posts: 149

Posted:

As always, the devil is in the details (documents).

In this case the details are contained in the docs. verbage regarding the AC (Arch. Control) process/authority and penalties for non-payment of dues.

AC committees are (typically) only allowed to approve/disapprove based on things like materials, colors, location, design, etc. So called "harmony of the community's appearance" criterion.

You likely have NO grounds to disapprove for ANY OTHER reason. Especially if pools already exist in the community. Precedence has been set.

Refusal for the wrong reason(s) would allow him to proceed with impunity as you would likely loose in court since the committee would have exceeded their authority. Conversely, refusal to approve (stall tactic) will likely allow commencement if no response is received in a specified amount of time after submittal (30-45 days typ.)

The members of the AC committee (unless co-serving on the BOD) should not have, OR BE CONCERNED WITH, any information regarding the requestees (or anyone's) financial status anyways (except for gossup). They are to only be concerned with the harmony of the community's appearance. PERIOD.

An HO can request any number of changes whether they can afford them or plan to commence them or not.

It is not a perfect world, it is not a fair world.

This looks personal. Don't complicate the issue by trying to "punish" someone beyond your authority because they owe you money.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

RW--

Best response yet, by far!

Thanks!!

PatR (Florida)
Posts: 139

Posted:

Donna:

That is what our attorney advised, can't mix apples and oranges.

Hopefully this will work itself out. If not a home with a pool may be more "sellable" in Florida!

Thanks all, for your input....Keep it coming!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Pat,
Yes I did acknowledge to George that he probably was right about mixing apples and oranges( dues not pertaining to the ARC- using lack of dues to not approve because of "member in good standing status")

Gerald-- I remembered your post on another thread-- "DonnaS - With all due respect you seem to have a penchant for drawing conclusion based upon only one side of information we are provided. Let's not make assumptions here." I did state that I was presuming.

on this lawyer and his pool.

PatR (Florida)
Posts: 139

Posted:

everyone....Play Nice.....

DJ1 (Ontario)
Posts: 798

Posted:

What are the timelines for ARC approval...ie. if you stall too l automatic approval of the pool?

GeraldT4
Posts: 1,022

Posted:

DonnaS - You do realize that you've basically called me a deadbeat in your post. Worse than that, you called me a lawyer, of which I'm not!!! : )

PatR (Florida)
Posts: 139

Posted:

Property Managers are worse....

RW1 (Texas)
Posts: 149

Posted:

DJ1,

Maybe. Look in your docs.

In my case... if no response is received within 30 days [of receipt], the request is considered approved.

This is why it is important for the Assn. (or MC) to date stamp all requests upon receipt. THAT is when the clock starts ticking.

Not when it was filled out or faxed or placed in mailbox, or ???, etc.

Otherwise you may have problems!!!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Gerald, No!, I would never call anyone a deadbeat on this site nor did I call you a lawyer or a deadbeat. Please reread the lawyer statement on the bottom of the post, as I was referring to the Lawyer who is the origin of the posters problems. I was referring to me being called presumptuous and I will appologize to trying to kid you about that.

I really think that you know that I was giving you the razberrys and if you took it wrong, I do sincerely do appologize. Again--

BradP (Kansas)
Posts: 2,640

Posted:

While I am not one to advocate dishonesty among boards, if this person wasn't a lawyer the tactic of refusing the request based on delinquency in assessments would be interesting to see it play out.

However, as a lawyer, he is probably aware that isn't ok to do.

Again, I am not advocating it, but with all the trouble in collecting assessments it could be another tool to try. If pressed on it the board would have to back down and would lose trust of the homeowner, but if successful then they collect money.

GeraldT4
Posts: 1,022

Posted:

DonnaS - Notice I put a smiley face : ) after my post. Wasn't offended, just didn't understand how my name popped up. I like raspberries, and strawberries too!! : )

DonnaS (Tennessee)
Posts: 5,671

Posted:

Pat, Do I add more fuel to this fire? Try used car salesmen. We have a saying up here---"Lawyers are like a bunch of bananas-- They are crooked, yellow and hang around in bunches"
Please--no lawyer responses cause I did not make this one up. Just trying to lighten up the mood.

PatR (Florida)
Posts: 139

Posted:

well...I'd like to add Realtors, and Mortgage Brokers...

Sorry to offend, but there it is!

What happened to this chain...Where did we go wrong!

DonnaS (Tennessee)
Posts: 5,671

Posted:

We needed a break. Everyone to their "time out corners"

PatR (Florida)
Posts: 139

Posted:

OK Nanny Donna....

May I stay there for the rest of the day?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Pat,

NO! you may not. Seems to me that you have a bad guy to straighten out. We are all waitng here to hear the results. Keep on a plugging after this dude.

PatR (Florida)
Posts: 139

Posted:

OK...I'll keep you posted....

The corner was nice while it lasted....

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

Quote:

Posted By DonnaS on 08/06/2008 12:29 PM

Pat, Do I add more fuel to this fire? Try used car salesmen. We have a saying up here---"Lawyers are like a bunch of bananas-- They are crooked, yellow and hang around in bunches"
Please--no lawyer responses cause I did not make this one up. Just trying to lighten up the mood.

Oooooooh, I like that one. I have not heard it before. I just sent it to my attorney.

DonnaS (Tennessee)
Posts: 5,671

Posted:

George,

You mean he USED to be your attorney.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

Quote:

Posted By DonnaS on 08/06/2008 2:52 PM

George,

You mean he USED to be your attorney.

Heck no! She had not heard it either. (It takes a while for jokes to get to Hoosierland. We're kinda' slow. Still use two cans and a string.)

She just e-mailed me that she loved it and passed it along to her partners and associates in the office. Now watch it get around. . .

KirkW1 (Texas)
Posts: 1,665

Posted:

I am not surprised in the least that the association lawyer said you couldn't deny the pool because of the dues. What I am surprised about is that anyone would take the advice of this forum over that of their attorney. If you don't trust the attorney, then get a new one.

As it has already been pointed our your documents probably cover the basis of approval for ARC submissions. And it is highly doubtful that not paying your dues is a reason to deny the ARC submission. While it might not be a bad idea, you can't fix that in time for this round.

You may want to consider an amendment that would make being paid on dues and fines is a requirement for ARC consideration. Otherwise all applications will be administratively denied. But this is something you have to put in the documents. You might be able to swing this through a Board policy. But run it by the lawyer first. And if he isn't sure it would hold, then you would be wise to make an amendment to the documents.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I think you should follow the advice of the Board's lawyer - who, I am sure, logged the time it took to figure out an answer, so you will get a bill for his recommendation.

But . . . get it in writing.

PatR (Florida)
Posts: 139

Posted:

We will go with the rec. of the attorney...Like it or not.

But since he is 40 days from foreclosure due to nonpayment of dues....time will tell.

Can you get a pool in in 40 days...not in FloriDuh

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By MicheleD on 08/06/2008 8:36 AM
Definitely lien him, but curious, here's what our CC&Rs say about "in-ground pool" approvals:

"(d) No aboveground swimming pools shall be erected or placed on any lot in XXXXXXX. In-ground swimming pools design and placement must be approved in writing by the Architectural Committee, which approval shall be within the sole and absolute discretion of the Architectural Committee and may be arbitrarily and unreasonably withheld."

One of the Rules the ARC COMM has established is that any requests from homeowners not in good standing may be denied.

Michelle,

I don't know that would hold up in court unless your docs say the same thing. I'm talking about the provision which deals with taking away privileges for being delinquent or in violation of the CCRs. Usually its just loss of the privilege to use the amenities. Even though the A/C may have the power to make rules governing their actions; they cannot make a rule that would be contrary to the CCRs. At least, that's my opinion!

MicheleD (Kentucky)
Posts: 4,491

Posted:

It does say the same thing.

Sort of.

". . . which approval shall be within the sole and absolute discretion of the Architectural Committee and may be arbitrarily and unreasonably withheld."

GeraldT4
Posts: 1,022

Posted:

MicheleD - I thought HOA's and committees were supposed to NOT be arbitrary and unreasonable?

MicheleD (Kentucky)
Posts: 4,491

Posted:

hehee.

I guess unless the governing docs say they can be!

Personally, I think it is a "reasonable" rule that one must be in good standing. This includes not only up-to-date on assessments, but having no outstanding violations, either.

GeraldT4
Posts: 1,022

Posted:

MicheleD - Oh, believe me I agree with you on the good standing. I think a better way to handle it would be to process the ARC application and state that if approved owner implementation can only commence once they are in good standing with dues. Or something to that effect. I also feel that if an owner is in arrears and contemplating an expense that requires the association approval, the association would not be exercising good business judgment, or fulfilling it's fiduciary duty to the membership by permitting the expense prior to getting paid. My hard line approach is that an association should not be accustomed to accommodating thieves such as those not current in maintenance.

PatR (Florida)
Posts: 139

Posted:

We are awaiting the formal ARC request....

DonnaS (Tennessee)
Posts: 5,671

Posted:

Gerald,
That would be a good item to put into either the ARC standards or guidelines, whatever they call them, to ensure that dues are paid before an approval would be granted, especially with the grand scale of the expense.

I have to write that and send it down to Florida for the ARC guideline manuel that I wrote for my former developement. It's just something that should be common sense but we know where that goes sometimes. Thanks. It can be added to the guidelines by just printing it out and getting a copy to all members as this is a Board committee and they have the right to add and delete items as long as they do not change any CC&Rs

HaroldS (Arizona)
Posts: 906

Posted:

"One of the Rules the ARC COMM (sic) has established is that any requests from homeowners not in good standing may be denied." How and why is an ARC privy to this information? I would expect that this "rule" could be challenged as being beyond the power and scope of an ARC.

LindaC3 (Florida)
Posts: 526

Posted:

PatR.... WOW !! What a mess with this pool business...now may I offer you some suggestions...... I live in a gated HOA here in Florida..I also sit on the Building Commitee... I suggested some changes to our Rules that we implemented that seem to work here...

1.... A $1500.00 refundable damage deposit is required upon approval of construction..The homeowner fills out an amenity ticket at the office.This covers any damages any sub may create to any of our roads here...Pictures are taken the DAY BEFORE any sub arrives on the property.. Of course in your situation he is in arrears so you could deny on those grounds.I know we would here..

2.... Because we are gated and let's stay in the time it takes the HO to get permits etc. and they SHOULD become behind in dues or get get some sort of infraction, we would not let the subcontractors access to the common property ( ie ROADS ) until said dues were paid or violation addressed...

Hopefully this will help you.....

Now on a side note...Here in Florida Building Depts DO NOT enforce HOA Guidelines with regards to their rules...SO if this person wanted to go apply for a pool permit he could and the BD has to issue one..SO it's time for your HOA Arc to have a quick meeting and implement NEW RULES which you can do and get the ball rolling..not only because of this situation but any other situation that may arise.....
Keep us informed
LindaC3

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