Can HOA bypass Florida Statute 489.103 (7)?

I have been requesting a meeting for over 8 months with my HOA for denying me the right to inact 489.103 and build my own home. I have approved plans and they have let 2 others in the subdivision build their own home but say I cannot? I told them there is a Statute that gives me that right and now they countered with saying the plans are now "not approved"! Very weird. At any rate, I am told they will simply levy high fines every day on me until I cant pay and then lein the property and they win? I dont think this is correct. Anyone ever heard of this type of thing?

Robb,

FL 489.103 7 is that you are serving as your own contractor, is this correct?

I'm also reading that you submitted your plans for approval by the Association and they initially approved the plans and then pulled that approval. Do you have any of that in writing or is this just verbal?

What do your governing documents specify about new construction (and in what document)?

Typically, an Association may have stricter rules than State, County or City. This is how the State/County/City might approve a building permit for a shed but if the Association has a covenant that says no sheds, then the shed can not be built. I asked what the governing documents specify and in what document it is specified as this most likely be the determining factor.

A Board may not grant a waiver to any covenant, condition or restriction identified in the CCC&Rs (deed restrictions). They might be able to grant waivers to bylaws or resolutions but it will depend on the language used.

If a Board has granted a waiver in the past, and had the authority to do so, they should be granting waivers under the same terms - otherwise it is considered selective enforcement. However, to contest anything about selective enforcement you will most likely need to go through the courts. If you are thinking about this avenue, I would suggest you obtain copies of the waivers for the other properties you posted about and then take those copies, your governing documents and your documentation about this requested waiver to an attorney for review and advice.

If a Board has granted a waiver in the past, and did not have the authority to do so, then they may not grant a waiver to you and it would not be considered selective enforcement.

Hope this helps.

In Florida they can fine upto $1K per incident UNLESS your docs allow more. They can lien for the $1K but cannot foreclose for fines.

So the lien sits there until you decide to sell. I'm not sure if they can add interest to the lien... my guess is no.

However if there is some teeth to what they are saying is 'implied' then a court order could force you to cease construction.

Get some legal advice ASAP before this consumes you in a stressful manner.

My first thought upon reading this thread was why would you want to build in this HOA? Is this the last vacant lot in Florida?

The problem is that the ARB wants the same architect who signed off on your plans to supervise construction even though nothing in their documents states this requirement. Have all other homes built in this HOA been supervised by architects? If you really want to build in this snobbish HOA, why not just have the architect supervise? It's pretty much up to the architect to decide how much supervision he needs to do.

I happen to agree with you that if the requirement for architectural supervision is not in the written documents then it should not be enforceable. But what will you gain by fighting them in court? You will spend at least a year (and maybe as many as five) to obtain a final judgment. There is the possibility that you could lose. In the meantime your lot sits there vacant and unuseable.

If this HOA behaves like this before you even build, what do you think living there would be like? If I were in your place I would put that lot up for sale and build elsewhere.

Robb,

I understand your position. Some fights are certainly worth the fight on principal alone. As you know that with every decision there are consequences. Good decisions tend to have good consequences and bad decisions bad consequences. More often than not, there are also unintended consequences.

The people who replied to you just want to make sure you are aware of all the consequences we see. This way you can make an informed decision. Our opinions are based on the information contained within your postings, our own experiences, any research that we do and, hopefully, some common sense that comes from looking at an issue from a different perspective than that of the poster.

If you intend to fight this issue, I would suggest that you contact a local attorney versed in contract law (as that is what your deed restrictions are). Give the attorney all of your communications, the plans, a copy of the deed restrictions and any documentation of this being allowed for others. Then ask the important question - what is your percentage of winning this case (as opposed to losing). Then ask the approximate costs involved and if legal costs can be part of the complaint.

You will need to pay any initial legal fees. As a member of the Association, you will also need to pay your share of any costs incurred by the Association. If you lose, you may need to pay the Associations legal fees. If you win, you will be required to pay your share of Association costs. Therefore, win or lose, this will cost you some money. It will cost you time and it will cost you energy. It may delay you building on your lot which (as an unintended consequence) may cost you more to build your home and, if interest rates rise, more to finance your home.

You and only You (and your family) will need to make the decision if this is worth the time, energy and costs. However, once you have this information you will at least be able to make an informed decision.

Tim

RobbD, How about an update. I'm facing something similar and take the same position as you....on the expensive, lonely path to do the right thing.