Wednesday, October 24, 2012

Are the Declarations of Covenants, Conditions & Restrictions the only enforceable restrictions?

A unique question from a reader was received this week and I thought it would be interesting to share. A 1987 case, Young v Tortoise Island Homeowners Ass'n Inc., was about a homeowner wanting to install a roof that the HOA did not approve. There was nothing in the Declarations (CCR's) prohibiting the roof. While the court sided with the homeowner and allowed the roof, the court pointed out a very interesting rule of law. The court commented restrictions can be enforced that ARE NOT in the Declarations when there is a "unified scheme" in the community and the homeowner should know that variations are not allowed. The court stated that had the community had homes with only one type of roof (let's use a flat roof as an example), then the homeowner is on notice that no other types of roofs are allowed. This comes up occasionally with chain link fences. If you do not see a chain link fence in your neighborhood then you are on notice chain link fences are not allowed even if they are not mentioned in the Declarations.

Tuesday, October 2, 2012

Association Attorneys

One of the most frequent questions/complaints I receive from homeowners is their assessments pay for the association attorney, so the association attorney must represent the members.  Unfortunately, this is not true.

The association attorney represents the corporation which is your homeowners association.  He/she does not represent the members or the Board of Directors, even though at times it feels like the attorney is representing only the board.  In fact, association attorneys need to be especially careful they do not lose sight of the fact that they have to protect the corporation, sometimes even from the board, especially since the attorney has to work closely with the board.  The attorney's obligation is always to the association and what is in the best interest of that corporate entity.  The best interest of the corporate entity is not always what the majority of the members want either, although a good attorney will have an idea of what the community wants and balance the wants with the best interest of the corporation.

Many associations have a bad reputation, and sometimes not without a good reason.  Power breeds corruption.  However, homeowners need to understand the only source of income for most associations is assessments and the law and the courts in recognizing this do not provide an option for owners to withhold assessments.  Financial hardship, health problems, unemployment are not valid defenses to a foreclosure action to take the home.  Most associations do not want to take your home and would rather have the money so they can continue to operate, but they have a duty to make sure they collect the assessments because if they waive them for one owner, they waive them for all owners.  The board members could be personally liable if they waive assessments because they owe a fiduciary duty to the association.

Homeowners also need to understand that while the association seems unrelenting and impossible by demanding covenant violations be addressed, again they have a duty to make sure the community maintains a certain appearance.  The personal factors of financial hardship, health problems and unemployment cannot be considered to excuse poor maintenance and/or repairs to the home.  While it all seems cruel, your neighborhood would quickly become blighted and your property worth considerably less if excuses were permitted.  That doesn't mean all common sense goes out and the association still must consider changes to property that occur out of necessity, like poor drainage and poor soil creating the need for less sod and more mulch, rock gardens or pavers.

In my practice I like to balance my duty to the association with common sense that will not only keep the Board of Directors happy, but the homeowners too.  That's no easy task, but I believe my approach not only helps the community, but keeps down the litigation.  That's right you heard me -- a lawyer that believes in keeping down the litigation -- my bread and butter.  Why?  Because in the end you all have to live in the community and I don't.  No good ever came from bullying people and tearing apart a neighborhood!  Besides, I like to sleep at night and you need a good conscience to get a good night's sleep.

Mobile Homeowner Associations

One of my favorite legal websites is, where readers can post interesting questions.  Today a reader asked me about how to form a homeowners association for mobile home parks, which are voluntary associations under Fla. Stat. 723.  Here's my answer:

There is a special statute for mobile home park lot tenancies, Fla. Stat. Chapter 723. You can organize a HOA, which is voluntary and different from a HOA under Chapter 720 for homes on owned lots. You would need a majority of the members to approve having the HOA represent their interest and it's really a good thing, especially when those lot rent increases come in every year. The Department of Business and Professional Regulations and the Federation of Mobile Home Owners both have materials to help you organize. There are sections of the Florida Administrative Code that also govern the parks and supplement the statutes. You can also partner with other associations in other parks for help. I know most of the associations are willing to be helpful. Check for the Federation of Mobile Home Owners and DBPR's website for the statutes, rules and other materials: