HOA ignoring Florida 720.3035

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NinaA (Florida)
Posts: 8

Posted:

I live in a single family home community of 700 homes. The By Laws and Covenants were written in the late 70's and are known to everyone to be very weak. In fact, that is what attracted many of us to the neighborhood.

After trying many things, I added lengths of 4" pvc pipe (see photo) to the top of my wooden fence that faces the entry road to keep my cats from being able to climb out of the yard. I got a "violation notice" from the Assn. (Although after reading the Covenants, I don't feel I have to do anything) I subsequently offered through Architectural Approval to shield the PVC from view with plantings. They denied my request. They are reviewing my case again this month (for 6 months now). When I got the Architectural denial letter about the plantings, the Association threatened to take the PVC off themselves and bill me (the only remedy allowed in our documents) or send me to the Attorney. Would you take a look at the wording (below) I took from our Documents and see what you think of my situation.

Covenants on Approval of Plans...
"All plans for any changes to any building, fence or other structure..... shall submit plans and specifications to the Association. Refusal or approval of plans by the Association may be based on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Association, shall seem sufficient." (This is the only mention of the word fence anywhere.)

Modifications of Restrictions...
"The Association shall have the right to modify or amend these restrictions based upon circumstances presented showing good cause in the opinion of the Association and determination shall be conclusive in that regard."

By Laws...
"Amendments: Except as elsewhere provided otherwise, these By-Laws may be amended by: Not less than 75% of the entire membership of the Board of Directors and by not less than 75% of the votes of the entire membership of the Association".

There is nothing about any Architectural Committee or passing of additional architectural rules or publishing guidelines.

The only written direction they give regarding fences is on the back of the Architectural form. It only says to include on the form what type of materials will be used. There is no info on what is or is not allowed.

In all of my responses, I have forwarded them the actual Florida Statute and also legal opinions of what 720.3035 means e.g. HOA documents need to specify materials etc. but they keep sending letters.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I think your in violation and should remove the 4" PVC pipe. It's up to the discretion of the HOA if they allow that modification or not. Obvisously, they don't want it or want to allow it. You didn't make an application to get it approved in the first place.

Sorry, but your going to have to remove it or face the consequences of not doing so. Next time, submit your plans before going through with them...

Former HOA President

NinaA (Florida)
Posts: 8

Posted:

I see you're in a different State. Are you familiar with Florida Statute 720.3035? My question is affected by this specific Statute in Florida which is why I mentioned it in the title of this posting.

see below...

"The authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants."

"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."

How can you support a homeowner's home improvement choices being determined by whichever people happen to be on the Board at that time? That's too subjective. The outcome of a Architectural application could then be different each year if a different Board was elected. That's why there are Covenants, correct?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Nina,

To drastically paraphrase what FL 720.3035 says: An Association only has the authority to approve/disapprove changes and adopt guidelines on what those change can or can not be if the Declaration of Covenants, Conditions and Restrictions (or similar document) gives such authority.

Per Your posting - your Covenants specify All plans for any changes to any building, fence or other structure..... shall submit plans and specifications to the Association. Refusal or approval of plans by the Association may be based on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Association, shall seem sufficient

Therefore, since the Covenants grant this authority, FL 720.3035 is in compliance and the Association may decide what can or can not be on a lot.

With the Expectation that you did not seek or receive prior approval before installing the PVC pipe, you would be in violation of your Covenants (because you failed to get approval before making an exterior change to your lot). By being in violation of the Covenants, the Association may seek any legal action as specified within your governing documents or State and Federal law to have you comply with the covenants you agreed to follow when you purchased the property.

A Board of Directors are allowed to adopt guidelines which establish parameters for approving and disapproving applications for exterior changes. By establishing these standards, there is typically less opportunity for individual members to exercise their personal tastes and beliefs for disapproving an application based on "purely aesthetic grounds". Therefore, the fact that there is minimal guidelines about fences is not in your favor. Without better guidelines, the people who have the authority to approve or disapprove a request to construct or modify a fence are free to use more of their personal taste as a basis when determining aesthetic value. As you posted, an application can be denied on "purely aesthetic grounds".

To more specifically answer your questions:

How can you support a homeowner's home improvement choices being determined by whichever people happen to be on the Board at that time?

When you purchased into the Association you agreed to comply with the covenants that were attached to the deed. As a member you help determine who is sitting on the Board making the decisions on changes - which you agreed to allow them to do when you purchased the property. If you don't like the people, you have the ability to cast your vote for someone else and/or to submit your name to the nomination committee to serve on the Board or the Architectural committee so you can alter the basis of those decisions.

That's too subjective

I agree. It is very subjective. The way to minimize the subjectivity is for the Association to adopt more specific guidelines and to agree on a definition of "aesthetic".

The outcome of a Architectural application could then be different each year if a different Board was elected.

This is a very true statement. That is why there should be guidelines so parameters are established for approving or disapproving applications.

That's why there are Covenants, correct?
Just as there are well written laws and poorly written laws, there are also well written and poorly written covenants. Per your own posting: "The By Laws and Covenants were written in the late 70's and are known to everyone to be very weak. In fact, that is what attracted many of us to the neighborhood."

Perhaps you should have looked for a property with stronger written covenants that didn't allow so much subjectivity in the approval process for exterior changes.

The bottom line to your issue will be: Did you or did you not seek and receive approval for the PVC piping.

If you did not, you should remove it and apologize to the Association. Then seek other alternatives to keeping your cats within your yard. If this requires alterations to anything on the exterior of your home, then seek approval prior to making the alterations.

If you did seek and were denied approval, you should have appealed the decision to the Board prior to making the alteration.

If you did seek and received approval, then provide a copy of the written approval to the committee and tell them that you are in compliance with the CC&Rs.

I know that this isn't everything you wanted to hear. Hope it helps.

Tim

DonnaS (Tennessee)
Posts: 5,671

Posted:

Nina,

To make this short and sweet. The ARC may not deny your application to add the PVC pipe because the PVC pipe is not included in the restrictions for fencing.

But you MUST apply per your own Bylaws. That is required

PeterD3 (Florida)
Posts: 708

Posted:

Judges have to make their own interpetation of the INTENT of the applicable HOA docs. and other laws.

I believe you have little recourse in this situation and will be unsuccessful in fighting this because: 1- you did not get prior approval, and 2- on the grounds of mixing the fence materials (aesthetics).

While NO materials have been shown to be prohibited the HOA can still deny based on design (aesthetics).

NinaA (Florida)
Posts: 8

Posted:

Tim,
I see your condensed version of 720.3035. What about the part that says....

(1) The authority of an association to approve plans and specifications for the appearance of any structure or other improvement on a parcel, or to enforce standards of any improvement on a parcel, shall be permitted only to the extent that the authority is specifically stated as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.

Our Covenants have no specifics for standards on fencing.

Your opinion is that "A Board of Directors are allowed to adopt guidelines which establish parameters for approving and disapproving applications for exterior changes." Doesn't this authority have to be stated in the Covenants? And if they aren't granted authority to make rules, don't we have to have a Community vote on changes to standards of exterior appearance? Wouldn't this fall under our heading I posted that is listed as how an "Amendment" is made?

I understand that some of you are replying to my posting based on what happens in your state. But my state, Florida, has this specific Statute where the intent of this Legislation appears to be to permit a particular exterior change if it is not specifically prohibited.

I think it's quite interesting that only DonnaS, who appears to be the resident expert on this site for Florida and Statute 720.3035 sees things very differently from the rest of you who posted.

I would appreciate it if you all would explain the discrepancy between your opinion and hers. Maybe she will also elaborate for me.

In my research, there are more legal opinions consistent with hers than MelissaP1
(Alabama), TimB4 (Virginia), and PeterD3 (Florida).

P.S. Peter, there is another homeowner with a mixed material fence in the community. He put a 6 foot fence on top of a 2 foot retaining wall. Although the Assn. objected, it's been there for 5 years without Assn. action. So wouldn't I also have an issue of Selective Enforcement?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Nina,

This Statute was rewritten in 2006 or 07 to be much clearer in the authority granted to ARC committees. No longer can Board discrepancy be the allowed. If the ARC Guidelines say, earth tones, they better say beige, tan, or whatever. Pavers allowed does not comply with the Statutes. Pavers in size of 4 x 8 in red brick is allowed. Specifics must be stated in the ARC guidelines or CC&Rs.

Statute: 720:3035 "shall be only to the extent that the authority is """specifically""" stated as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.

I probably have a grip on this because I was responsible for writting our original ARB Guideline booklet. Had to rewite it in 07 to comply with the Statute.

THIS IS IMPORTANT THO> Unless your original covenant says that the fence must be 4 foot with 4 inch on center slats, composed of PVC or metal or whatever that CC&R may say, that would be the definite description of fence requirements. IF the Board has allowed anything other than what the CC&Rs say, then there is a selective allowance problem. I hope that you have followed the CC&Rs on your fence.

NinaA (Florida)
Posts: 8

Posted:

Thank you so much DonnaS. I was hoping you'd reply.

Our Covenants do have some vague specifics as to Roofing, Mailboxes, TV Antennas, Landscaping and a few other specifications, but nothing about Fences except what I posted before. That is the only time the word Fence appears ANYWHERE.

Now, they do address Walls. "No boundary wall shall be constructed with a height of more than five feet above the ground level". But even here, there is no specifics as to materials. This five feet number does appear on the back of the ARB form which in itself is ridiculous because all fences in the community are 6 foot as that is what the prefab panels come in.

On the back of the ARB form it says only:
Fences not to exceed five feet.
Include type of Fence including materials, height, drawing, color, finish and decorative style.
Location and swing of gate.
Proposed Landcaping plan surrounding fence.

There is an underlying issue here where my property is one of about 25 that has a rear fence that backs to the entry road. For years, the Assn. has been telling us 25 homeowners that we can only have a wood, board on board fence painted their specific color. They have been refusing to approve ARB forms for people who disagree. They state that there is a "rule" that only this fencing is allowed, but it is never produced. My fence made it through ARB without the requisite painting and they are still sore about it. Now that I have the pipe on top (which really doesn't look bad and some people want to copy as a "cap",) they are really worried that it will open a flood gate of people wanting to put other types of fencing along the entry road.

There is every kind of fencing under the sun out there on the other 700 homes in the development incl. PVC, wood, painted, unpainted, lattice, chain link etc. And they are trying to say we 25 don't have that right too. The Covenants even say "No Amendment shall discriminate against any member nor against any class of members unless the members so affected shall consent."

Based on my initial posting regarding how materials specifications would be amended for our Community, do you think the Assn. can do it at a Board Meeting or through some publication of a ARB Booklet or would our Community need a vote to establish the exterior standards for materials?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Nina,

This is what happens when Boards change leadership and each successing Board interprets the covenants differently. Fences like what you all have being different is a nightmare and the Board cannot deny any fence applications if everyone is different AND the ARC does not state specific size, color and materials. All that you are currently required (By the covs) is a 5 foot fence.

Your fences are listed under authority of the Board.(association, aka ARC committee which is under the Board) It is in the covenants, and the wording of the covenant says that the "ASSOCIATION SHALL HAVE THE RIGHT TO MODIFY OR AMEND THESE RESTRICTIONS" It seems that power is given to the Board to amend this section. The fencing is all different materials and heights. 6 foot is what fencing panels come in now so that should be the goal set in the amendment wording.

Covenants on Approval of Plans...
"All plans for any changes to any building, fence or other structure..... shall submit plans and specifications to the Association. Refusal or approval of plans by the Association may be based on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Association, shall seem sufficient." (This is the only mention of the word fence anywhere.)

Modifications of Restrictions...
"The Association shall have the right to modify or amend these restrictions based upon circumstances presented showing good cause in the opinion of the Association and determination shall be conclusive in that regard."

NinaA (Florida)
Posts: 8

Posted:

Donna,

So if our Board wanted to establish some written ARB guidelines, would they just do it by a vote at a meeting and just put these guidelines in the Minutes?

Or the ARB Committee would draw up a Booklet and publish it on our Website along with the ARB application form?

Or would the Board have to get a formal Amendment drawn up by an attorney and have it submitted to the County for filing?

You don't see us needing a Community vote at all? The Board can establish these themselves?

But until this is done, I would be grandfathered in it seems. Right?

Nina

DonnaS (Tennessee)
Posts: 5,671

Posted:

Nina,

The Board absolutely MUST write an ARB guideline book. They should have a copy in every residents hand, be it website or paper copy for anyone without email. There still are some of those out there..

We gave them members 14 days to review them and then had a special meeting where the members had time to talk on their issues with the guidelines. There were a couplf of items that we needed to tweek or just eliminate, which we gladly did because we felt it did not alter any covenants and might have been an enforcement issue.

After all of the comments, because our covenants, just like yours, gives the Board the authority to adopt these huidelines.

Again, according to what you posted under your covenants, this is NOT a formal covenant amendment , therefore no attorney is needed to draft the guidelines but I highly reccomend that someone with a very sharp eye, reviews the guide prior to taking it to the members.

All fences would be grandfathered in as long as they had gotten approval, be they right or be they wrong, if they were approved, they will stay. I am concerned because you said that your addition to your fence was not approved BUT you also added the pvc after the new Statute was added which may cover your unapproved addition. I am not a lawyer so don't quote me on this part.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By NinaA on 06/13/2011 10:45 AM

(1) The authority of an association to approve plans and specifications for the appearance of any structure or other improvement on a parcel, or to enforce standards of any improvement on a parcel, shall be permitted only to the extent that the authority is specifically stated as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.

Our Covenants have no specifics for standards on fencing.

Nina,

I certainly agree that Donna is more knowledgeable on FL statutes and how the affect FL HOAs than I am. I will typically defer to that knowledge. However, I don't think Donna and I are too far off from each other.

Your covenants specify that approval is required prior to any change. This same passage, based on your posting, stated that the request can be denied based on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Association, shall seem sufficient

As I said before, guidelines are used to establish parameters the approving authority uses to determine what should and should not be approved. An argument could be made that these parameters also help establish the aesthetics of the development. These guidelines are typically published to the membership so that members are aware of what requests will typically be approved or disapproved.

Often individuals do not fully understand what the guidelines are. When this happens they mistakenly inform others that they are in violation of the guidelines when in reality they are probably in violation of the covenants for failure to obtain permission to make the change. This can foster the misunderstanding of what the guidelines are.

Now, I certainly agree that once an Associations allows one member to use a specific material then all members should be allowed to have a choice of using that material.

As you eluded to, I can only offer advice and an opinion based on the information contained within the posting, any research that I did in the past or chose to do prior to responding, personal experiences and, hopefully, common sense. Individuals with other experiences or performed more research will typically provide different opinions.

My opinion of the Statute and guidelines goes partially to the aesthetics question. However, I would certainly defer to Donna's expertise in this area as to test the validity of my opinion would probably involve the courts.

Nina, you stated that you attempted, through ARC requests for methods to shield the PVC pipe from view. However, you never answered the question - Did you request and get permission prior to modifying your fence with the PVC?

I am fairly positive that most would agree that permission was required prior to the initial modification when you installed the PVC.

Tim

DonnaS (Tennessee)
Posts: 5,671

Posted:

Tim,

Yes, we most often are on the same page with these items. Where it gets tough for me is that the new Statute would have precedence over this part of the covenant. "on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Association, shall seem sufficient"

Now the new Statute removes the Boards arbritrary options for esthitics by saying that everything must be specifically spelled out. Nina's fence addition approval was rejected after the Statute was adopted by the State. I will still stay with the opinion that they should not have rejected her because of the Statute and that they, the Board, have no consistancy on any fences within the community. :0 :0 (2 happy faces)

TimB4 (Tennessee)
Posts: 21,062

Posted:

Donna,

That is good information about the statute to know. This is why I defer to your knowledge.

The problem I still have is that Nina never specified if she sought approval prior to installing the PVC pipe. Even if the law would have forced the Association to approve the application, if it was never submitted, then the Association has the right to have her take it down until it is approved. She did specify that she sought permission for screening options (not for the initial modification) but this was done, per her initial posting, after she received a violation notice for installing the PVC pipe. Therefore, if she never applied for approval, I do believe that the violation was valid. Until we know if the initial approval was requested, the discussion on the interpretation of the law is nice to have but not necessarily immediately applicable.

Nina,

If you did not specifically request the modification of PVC pipe, I would recommend that you:

1. Remove the pipe.
2. Submit a request to install the piping
3. If that request is denied - appeal the denial to the Board based on FL law
4. If the appeal is denied - you may need to consult a local attorney about other options.

Tim

DonnaS (Tennessee)
Posts: 5,671

Posted:

Nina,

I agree with Tim where he asks about whether you applied to add the pvc piping. I had asked that earlier as well. The ace in the hole on your part would be that IF you had applied and were denied the installation, you would have solid grounds to appeal the denial for the pvc. I too would remove it and continue from there, following the Statutes which will cover your request.

PeterD3 (Florida)
Posts: 708

Posted:

The problem in this case for me is that the form of materials used are not designed or intended to be used for fencing... PVC [plumbing] pipe, really?

Yes there is PVC designed/intended to be used SPECIFICALLY for fencing, so lets no go there.
But in this case it has not been shown to be fencing material.

You're going to go in front of a judge and say that: "I did not get permission to augment my wood fence with PVC plumbing materials and now my HOA wants me to remove it, So do I really have to do so?"

Good Luck.

NinaA (Florida)
Posts: 8

Posted:

Tim and Donna, I so appreciate your willingness to discuss my case and share your knowledge.

I assure you Tim, there are no “guidelines” available other than what I have posted. I have been in touch with the ARB Chairwoman regarding this issue and others. There is nothing published other than the Covenants.

I think that although there is not a fence with PVC and wood that I have found, there is the one with concrete retaining wall block and wood which I think would set a precedence for mixed material usage although the ARB Chairwoman says it wasn‘t approved. It‘s still there years later. There are definitely plain PVC fences and plain wood ones.

I did not apply for the ARB beforehand because I didn’t know if it would work to keep the cats in. If it didn’t work, I would have removed it before a violation would have been issued. I went ahead and installed it early as I had some urgency to keep them in. I have always applied for ARB approved as required previously. And believe it or not, I am a past Board member. I admit I got lazy and didn’t send the form in before the Covenant Control man saw it.

Is delayed ARB form submission cause for denial? Or I should say, is it cause for an automatic denial that there wasn’t submission of a request prior to installation? It is a common problem in the community for people to do as they like and then submit paperwork later. This hasn’t prevented approvals in my experience.

When I sent in the ARB approval request. I had already consulted the ARB Chairwoman who suggested offering a way to conceal the pipe in my submission. I then submitted one form that included a request for the pipe and specifics as to a vine that would cover my fence and the pipe. I am known for my gardening skills.

At the ARB Committee meeting, 2 of the 3 members approved my application. The third member, who also happened to be a Board Member, voted against me. She then brought the matter before the Board where she and a majority voted against me. (I have a problem with this, do you see one?) The response I got stated the “pipe must not be visible from the entry road” and gave me 30 days to remove it or they would do it for me and bill me. (Again, they are making specific conditions for the entry road.)

How do I appeal to the Board when it was the Board who denied me. I have sent emails to them, citing this Florida Statute and legal opinions explaining it‘s ramifications, which the management company has received and acknowledged. So I suppose that qualifies as an appeal?

I don’t understand how removing it in the meantime helps me? Is the fact that it was put up before approval automatically make it a denial despite the 720.3035 Statute?

Peter….I tried to load a picture of the pipe but it’s too large a file. I have had people stop and ask how to add the pipe to their fence as it looks like a “cap” that you normally see on a wall. It really doesn’t look bad.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Nina,

The fact that it was put up prior to seeking approval makes it a violation. The violation of not requesting approval prior to the modification would still exist as long as the modification exists. In order to comply with the governing documents, the unapproved modification should be removed.

Personally, I don't believe that submitting an applications after the fact is keeping with the spirit of the covenant. However, even if someone does believe that submitting the application after the fact does comply with the covenant, you stated that this application was denied.

If you do not believe that the denial was legal, you should still go through the appeal process with the Board - it's possible that after the board is educated in the law that the appeal would be granted. If the appeal is denied then the only other options would be to seek relief with the courts or to reapply under a new board.

The Boards positions will most likely be that you are in violation of the covenants either because the modification was in place prior to applying for approval or the modification was in place even though the modification was denied. Failure to remove the modification keeps you in violation.

Granted, the Board may have been in error in disapproving the application just as you were in error by installing the piping prior to seeking and receiving approval. As my mother always told me, two wrongs do not make a right.

Since you previously served as a member of your Board, I expect that you would agree that the appropriate process a member should follow when they disagree with a decision of the Board does not include dismissing what the board says and violate that decision. The appropriate process would be to educate the members of the Board or to challenge the decision through the appropriate channels. Worst case, this might require consulting an attorney and having them write a letter to the Board.

Tim

PeterD3 (Florida)
Posts: 708

Posted:

You have a lot of issues in play here.

You have admitted you knew (prior) permission was required and should have obtained it.

No matter how many times you rephrase, the facts as you posted them indicate that you are [allegedly] in violation and no one here can help you with that.

While I have not seen this alteration, if such a thing 'popped up' in my 'hood I would just call city/county/etc. Code Enforcement and let them sort it out.

These things are better handled by them and if they're OK with it then I'd have to be also.

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