Convenants that have not been enforced

I am a new board member of an 89 home Florida HOA. Each lot in the subdivision is over 1 acrea. Our HOA convenants specifically restricts sheds of any type being erected on any of the properties. However, over the past 5 years, many of the home owners erected sheds of various sizes and construction type behind their homes on their lots. These sheds are the usual type designed to house lawn mowers, garden tools, etc. The HOA did not enforce the convenants against erecting sheds during this past 5 years. Nor did they give approval for any of the erected sheds. The HOA just ignored the situation. So now the question is, can we start enforcing the convenants against sheds after not enforcing it for the past 5 years? Do we "grandfather in" the already constructed sheds and allow them to stay, while restricting any new sheds from being erected, or would allowing the old sheds to stay create a legal defence for anyone who we try to stop from erecting a new shed? What are our options with a situation where the HOA has not enforced a convenant, but we now want to start enforcing it?

yes, legally, you can decide to enforce a rule that you neglected to enforce in the past.

You already outlined your options...

you can grandfather everyone with one "in", and start enforcing from today.
You can have everyone fined or remove their old sheds, and fight that battle.

Obviously, the HOA is on weakened legal arguments for getting draconian, however, it still has the right to begin enforcement at any time, and no legal requirement to grandfather.

james

1. Yes you can start enforcing CC&R's and order all sheds down.

2. Yes you can start enforcing CC&R's but grandfather all existing sheds in.

3. Yes you can rewrite the CC&R's (maybe even Rules and Regulations) to allow sheds. Set shed standards that all new and any existing ones replaced must meet. This way you can control it.

I was in a standalone home HOA that had several legal skirmishes and a BOD overhaul all based on sheds. Our issue was CC&R's vaguely allowed out buildings but the ARC and BOD would never approve any and took fast action on any erected no matter type, size, locations, etc. Our lawyer agreed with one threatened lawsuit taht said the fact that you keep saying no when they could be allowed is not legal. There are good grounds for them to sue you and win. We decided to become pro-active and set standards for sheds.

My suggestion to you is above #3.

John,

From previous threads on this forum I fully understand that sheds and fences are sources of friction in many HOA's. What I do not understand is WHY?

Why would I or should I care that someone has a shed in his backyard? Right now, I have two sheds, a tow truck, and a motorhome in my backyard. My neighbor has a dead 65' T-Bird and a pig (a real one, not one of those little pot-belly things) in her backyard. How is it that this can happen without a fistfight? Simple: no HOA!

Most Americans have more to worry about than whether their neighbor has a shed in their backyard. In fact, most Americans would consider it none of their business what their neighbor has in their backyard.

What sort of mental misfit puts that kind of crap into their CC&R's in the first place and how much of a jerk does one have to be to insist on preventing property owners from putting a shed in their backyard?

Life is too short for arguing over sheds and fences.

Not arguing whether or not sheds add or detract, when a member buys into an HOA they agree to follow all of the CC&R's not just the ones they agree with or like. Same thing for the Board either enforce the section about sheds, modify it to allow then but have some control over them or amend the documents to remove the section altogether.

I will agree with you that some HOA's go overboard trying to find violations. There was a link on the news feed on the first page a few years ago about an HOA (I think) in Texas. Because of the size of the lots and the vegetation blocking a view of the backyard the HOA spent several thousand dollars to hire a helicopter to overfly the backyard and take pictures of possible violations.

Were they within their rights to do this? Probably but they (the Board) came off looking like idiots on the national stage.

I was thinking the same thing. LOL

Sheds can, and often do, look like crap. Have you seen those plastic POS sheds you can buy these days?
Our HOA allows them provided they match the house in terms of siding and roofing, and have a prescribed number of doors & windows.

To the OP, I think the options have been laid out. I do wonder if there homeowners have firm legal ground to stand on as the sheds were given de facto permission in the past.

I agree.

Let me put the context of restrictions of a HOA into perspective. I call this my "Outhouse" example. If you live in an area without a HOA or restrictions, and a neighbor puts a working "Outhouse" in the front yard, how do you remedy that? We aren't talking like a country area but a subdivision with kids/close houses. There are dangers associated with this not to mention just the smell of raw sewage. The neighbors would have to go to the city or county they live in and partian the City/county to remove the structure. The city could only remove it if it violates any of their rules or codes. Otherwise anyone can put an outhouse in their front yard and use it. Your kind of powerless and limited on the action that can be taken against this owner. Plus it is time consuming as the city may have time periods that can take 6 months to years to be able to fine or remove the outhouse legally.

A HOA on the other hand gives more timely and control in such situations. The HOA restrictions would get this outhouse removed much faster and have more teeth to do it. The HOA can send out a violation letter to the owner to remove it. Give it a certain time period, and then come in to remove it. The choice for the owner is to remove it at their cost or have the HOA pay for it and send them the bill. If the owner doesn't pay that bill, the HOA can lien for that amount. It is a drastic step and many will debate being able to enter one's property, but it is an option.

A HOA develops and lives by the rules and standards of appearance it wants to maintain. That is done by having rules so to enforce when that isn't happenind. You also have to understand that a HOA is just a SALES tool. It was developed as a sales tool by the developers selling the properites. What better sales pitch than telling potential buyers they can have control on the appearance of their neighborhood themselves to keep home values up? The reality is that HOA's don't keep home values up. They keep the ATTRACTIVENESS to buyers to come and purchase homes. The real value of one's home is similar homes with similar features selling in a few miles radius. Foreclosures and fixer uppers in the area do factor in more than how pretty you and your neighbors yard look...

I would call the health department, the building department, and/or the zoning commission all of whom are far better prepared to deal with such a situation than a bunch of know-nothing volunteers who have to wait until their next meeting to debate whether to call the health department, the building department, and/or the zoning commission.

The treatment that one amputee has had to endure while living in the Shadow Ridge community, and wants to know if it is right for their neighbors to treat them like that in Mustang, Oklahoma and what it might be like for fellow handicapped individuals:
a. Hostility by neighbors.
b. Neighbors trash and deface their property continuously.
c. Neighborhood children running amuck on their property even if they ask for the children to stop.
d. Being ignored by their shadow ridge hoa president.
e. Police not pursuing crimes committed against them.
f. Children throwing stuff at their house, particularly their windows.
g. Mail stolen and or opened by neighbors without their permission.
h. Neighbors damaging their fencing.
i. Untrue rumors told about them.
j. Stares and dirty looks by neighbors.

Robert - I'm confused, what does this have to do with this discussion?

Robert,

It's best to start a new topic when the subject of your post isn't related to the topic being discussed.

That said, to answer your question - is it right for people to treat other people differently? The answer of course is no it's not right. However, that is a moral question.

Taking it a step further, is it legal? - possibly. It depends on the action.
Is it human nature? - definitely. That doesn't make it right but it does happen.

It takes strong character to not stare. It's likely that most stare because they don't know what else to do.

If your the person being stared at, have you tried saying hello when this happens? I ask because often engaging the other person in an activity (like a simple polite conversation about the weather, cars, etc.) can break the stare and you may make a friend in the process.

If your the person staring, it might be a natural thing to do but it's also rude. Instead, try waving hello and continuing on your way. Better still, stop and say Hi. You might make a friend.

Again, it's best to start a new topic.

>What sort of mental misfit puts that kind of crap into their CC&R's in the first place and how much of a jerk does one have to be to insist on preventing property owners from putting a shed in their backyard?

Well I for one have a patio home...and I DO care a lot whether my neighbor is keeping pigs...

I don't think there's anything mentally misfit about that.

Great responses from everyone on my original question. This forum is a big help, especilly to us smaller HOA's that are self run. Noting some of the responses - the original developer created all of our convenants when he built the subdivision. So he is the one who had a big issue with sheds. Now we have to deal with it. I like the suggestion of changing the convenants. However, our CCR's require at least two thirds of the members to agree to the change via a vote. Unfortunately, we can barely get ten percent of the members to come to any of the meetings, including elections!!! Many of the members refused to pay the dues until threats of liens got most of them to cooperate in this regard. I think we will initally go with the grandfather in approach, try to control future violations and then work on CCR changes. So after 10 years, it seems our HOA is still a work in process!

Every topic that I posted has everything to do with covenants that have not been enforced. Ignoring a hoa member should never be tolerated and is a violation of the cc&r's because ignoring an issue is condoning the issue.

The treatment that one amputee has had to endure while living in the Shadow Ridge community, and wants to know if it is right for their neighbors to treat them like that in Mustang, Oklahoma and what it might be like for fellow handicapped individuals:
a. Hostility by neighbors.
b. Neighbors trash and deface their property continuously.
c. Neighborhood children running amuck on their property even if they ask for the children to stop.
d. Being ignored by their shadow ridge hoa president.
e. Police not pursuing crimes committed against them.
f. Children throwing stuff at their house, particularly their windows.
g. Mail stolen and or opened by neighbors without their permission.
h. Neighbors damaging their fencing.
i. Untrue rumors told about them.
j. Stares and dirty looks by neighbors.

here are inserts from my hoa cc&r's:

{d) Nuisances No noxious or offensive activity shaH be carried on upon any lot1
no;r shaH a11ythlng be don,e thereon which may be or may become a nuisance or
annoyance to the neighborhood.

(a) Homeowners membership
upon the sale of a completed home on each lot, separately and independently, by a builder and occupancy
by the first purchaser of the home, then that property shall become a permanent member of the ******* homeowners'
association and be subject to the articles of incorporation and by-laws then in effect and have the same rights
and privileges as all other members of the association.

Section 2 Enforcement
Should the Owner or Tenant of any block or lots or
building sites in this addition violate any of the restrictive covenants or conditions
contained herein, and thereafter refust to correct same and to abide by said restrictions
and conditions contained herein after reasonable notice, then in such event, the
association or any owner of any block, lot or building site in this addition may institute
legal proceedings to enjoin, abate or correct such violation or violations. The Owner
of the block, lot or Tots, or building site permitting the violatiOn of such restriction or
conditions shall pay all attorneys fees, court costs and other necessary expenses
incurred by the person instituting such legal proceedings to maintain and enforce the
aforesaid restrictions and conditions. Said attorneys' fees, court costs, and other
expenses allowed and assessed by the Court, for the aforesaid violation or violations,
shall become a lien upon the land as of the date legal proceedings were originally
instituted, and said lien shall be subject to foreclosure in such action so brought to
enforce such restrictions in the manner provided by law. failure by the association or
by any owner to enforce any covenant or or restriction herein contained shall in no event
be deemed a waiver of the right to do so thereafter.

You can't stereotype every amputee. It sounds like you are and will discriminate against any and all amputees. The purpose of forums is to let people know about stuff in people's life.

(a). you are absollutely correct about being nice. There is no law about being nice to someone. However are you the type of person that overlooks hostility towards others because you yourself enjoy being hostile towards others? You apparently haven't been treated with hostility or else you would understand how I feel regarding hostility issues. There are many ways to carry "torches and pitchforks" and hostility is one method to be able to cowardly be hostile. But when do you draw the line and say enough is enough? Just wait until the time you are treated with hostility and I wonder how you will react to it.

(b). Throwing trash in someone's yard is a violation of laws. Defacing someone's property means taking away the value of their property by means of something like trash. You apparently don't own a home. You would understand how it feels to continuously have to pickup cigarette butts, candy wrappers, and other trash items from your yard. So what you are saying is that it is ok to put trash in someone else's yard. It is ok to deface someone else's proerpty because they didn't "dump" a dump truck load of trash in someone else's property?

(c). What do you think amuck means?

(d). What do you think "ignored about what". What do you think I would be contacting the hoa president about? I am a hoa member. Therefore I would think that it would be a no brainer. I am being ignored by the hoa president with regards to me emailing her via email to try and get remedy to my hoa issues.

(e). Don't you think I have or am attempting to. I thought this forum allowed a way for someone to invoke their first ammendment rights "freedom of speech"? Do you know your constitutional rights? I hope so.

(f). You apparently didn't read what I posted "e. Police not pursuing crimes committed against them". I have tried. The police come out and tell me that a crime hasn't been committed. I request for a report to be filed and they tell me that they won't file a report. City ordinances are being violated and they are being blown off. When do you believe that the police react to crime; after a small offense or big offense. Does someone have to be murdered and the police react or should the police react to the smaller crimes to prevent someone from being murdered. Every criminal starts out with small crimes such as defacing property and work their way up the chain. Hypothetically, today my property is being defaced. I call the police, they respond, nothing is done. Tomorrow, the same people that defaced my property the day before, now start putting graffiti on my driveway. I call the police, they respond and take no action. The third day arrives, the same criminals start losening the boards to my fence. I call the police still no action taken. The fourth day arrives, the same criminals break my windows. Again, no action by the police. Do you see where I am going with this?

(g). I have contacted my local postmaster. They tell me that there is no federal law for removing mail and destruction of mail, that I would have to contact the local police dept. As I have stated previously, nothing is ever done when I contact the police.

When will someone listen to me with regards to my complaints? Apparently if someone brings up topics without stating they are handicap, everyone responds positively on this forum and with understanding and with good responses. However, the moment that someone states they are handicap, then there is confusion as to what did you say, what do you mean, it makes no sense to me, you should have done this or that. Well, take my issues with a grain of salt. What someone posts on this forum should never be responded to with aggression. It's like they say birds of a feather flock together and apparently according to your responses to my post, you are just the same as they are.

Robert,

Again, it's best if you start a new topic. Not only will it allow users of this forum who may have a similar issue as yours to locate the discussion easier but, since your issue is a little more unique (Nuisances or offensive activity) than the issue of sheds being built it will allow readers of this thread to keep on topic about the sheds.

The problem with enforcing Nuisances or offensive activity is that those definitions are more subjective to personal opinion than say, having a shed built.

I'm certainly willing to discuss your issue in greater detail in a new thread.

Robert- I agree with Tim. Please start a new forum. Your topic will be lost when the forum your wrote on stops. You will then receive more responses. Your subject
could be Treatment from Board towards handicap homeowners. If you do not know how to start a new forum let us know. Someone will help you or do it for you.

Bravo! Thank God some of us dont understand the need to live under HOA'S dictatorship's.

Sorry Tim and I agree Robert should start a new post but to I have to say a few things.

Robert you wrote:

(g). I have contacted my local postmaster. They tell me that there is no federal law for removing mail and destruction of mail, that I would have to contact the local police dept. As I have stated previously, nothing is ever done when I contact the police.

When will someone listen to me with regards to my complaints? Apparently if someone brings up topics without stating they are handicap, everyone responds positively on this forum and with understanding and with good responses. However, the moment that someone states they are handicap, then there is confusion as to what did you say, what do you mean, it makes no sense to me, you should have done this or that. Well, take my issues with a grain of salt. What someone posts on this forum should never be responded to with aggression. It's like they say birds of a feather flock together and apparently according to your responses to my post, you are just the same as they are.

G. Google U.S. Postal Inspectors for the items you posted are a crime, they even have an online form you can fill out to report it.

I personally don't give two hoots whether a poster is disabled or not but being disabled doesn't automatically entitle them for Sainthood. If something is a violation, it is a violation it doesn't automatically make it worse if the person it's happening to is disabled.

Now if the police are saying whatever is happening is not a crime and their superiors are evidently backing them up, then maybe it's not a crime. Now I don't know what running amuck means, does it mean they cut through your yard or are they throwing parties in it?

Oh and for what it's worth (a premo parking spot at the mall) - while I'm not an amputee; I am disabled and unable to work, have been since 2004.

Back to the original poster's topic ... Our small Florida HOA obtained a legal opinion from an HOA attorney in Tampa on this same subject.

Our HOA Asked:
Is there a timeframe for the initiation of enforcement action for a modification or improvement that has not been duly approved by the Association?

The Attorney Reply:
"The statute of limitations to enforce restrictive covenants in Florida is (5) five years. Accordingly, such legal action must be brought by the Association within (5) five years of the Association learning of the violation. With that said, in my experience, too many equitable defenses often arise in favor of a homeowner if a deed restriction enforcement case is not brought within (2) two years of an Association learning of a deed restriction violation. Accordingly, I encourage you to act immediately if you are confronted with a known violation of the Declaration or ARC. Time is definitely not on your side when it comes to enforcing deed restrictions."

Hope this helps the original poster.

Thanks LuanneF. That was the answer our PM gave us too. We had a condo owner hire a contractor to place (cutout) a full length window in her front door. The BOD kept ignoring the violation until the PM insisted the BOA act on it pronto.... as soon the board would be SOL correcting the violation.

Another thought in response to James' OP and others who ask why sheds are needlessly banned in HOA communities... you have to remember James lives in Florida in which certain counties are hit with high wind storms and hurricanes every once in awhile. The POS sheds you can buy at discount club stores blow over in 30 MPH winds let alone a tropical depression or catagory 1 hurricane. The destruction to other peoples property by wind blown sheds can be extensive. You can't believe the civil suits because of homeowners pool cages collapsing in high winds and damaging neighboring properties.

So yes, I can see why some HOA communities in FL may ban sheds

James, I would not listen to what appears to be "legal" opinions from posters in other states because half of them are dead W R O N G. They know NOTHING about Florida, FL Statutes, FL case law, etc. etc.

As an experienced licensed FL community association manager and co-owner of a community association management company in FLORIDA, I can tell you the board CANNOT do anything about the sheds already there. Don't you allow fencing around backyards ?? You can, however, attempt to enforce the Covenants going forward. If you bother to at least read Florida Statute 720, which governs HOAs, you will find out that the Statutes change just about every year, and that the principle of "REASONABLENESS" rules in the FL Judicial system and in the "jury" of public opinion.

By the way, how do you plan to enforce the NO shed rule going forward ?? Do you actually have an ARC that is doing its job pursuant to your Covenants ?? ARC meetings are to be open and duly announced when a FINAL determination is about to be made about an ARC application. Failure to do so is a violatuon of FS 720.

Good catch, Tim. Thanks. I should pay closer attention to the dates. What I just posted has NOT changed. I know most case Law in Florida.

Colorado law ( crs38-3.3-123(2) states that if the violation has been in place for 1 year and nothing has
been done about it, than they get to keep it. The 1 year limation is in the status of limations for enforcement
of building, painting, and other restrictions on exterior or landscape changes. So you might want to check your
states status before doing anything. It might be to late for the older shed. You can start to enforce new ones
that have been errected, But that causes alot of problems with the commmunity. So and so has one why can't I
have one? Selective enforcement. What is so wrong with them? At least all the stuff is in an enclosed
container and not left lying out in the open for everyone to see.