Probably a stupid question, but here it is

Emily,

These are not "stupid" questions at all. You should be commended for reading your governing documents and asking about what you read.


The answer here is not as cut and dried as it might seem. The Board of Directors can make decisions in the best interest of the community that go against something in the governing documents. For instance, if it would cost thousands of dollars to enforce some provision, and there is little chance of ever getting back that money, the board may choose not to pursue enforcement. Remember, this may mean that this particular provision may never be enforced in the future.


Any homeowner can sue to force the board to take or not take some action. However, this is unlikely to happen since it would cost the homeowner a lot both in time and money. The other reason this is unlikely is that any attorney who picks up the case will understand the "business judgment rule" that protects the board for having their decisions challenged, so long as they are reasonable, informed, and in the best interest of the community.


Maybe not. If it is something that furthers the quality of life or increases property values, it is a good idea to start enforcing it. If not, maybe you amend your documents to remove this provision entirely.

Emily,

Eventually, it all comes down to what the homeowners want. If there is a general consensus that certain aspects of the documents ought not be enforced, then you will face a difficult and lonely battle to do otherwise.

Check with your neighbors. Build a consensus. Then approach the board in the spirit of representing the will of the community to make changes in policy.

Whatever you do, you need to be open and transparent in your decisions. If you are deciding not to enforce some provision, or to start enforcing something that has been let slide in the past, you need to let every homeowner know what is happening.

Emily,

Lawrence is correct and especially in Florida you will see that some of the C&R's that were never enforced for years may be unenforceable now. When home sales in FL rise again the first people in your community who will push for C&R enforcement will be sellers.

That is funny you say "sellers". We wanted to put some money into our home to make great improvements so that we can enjoy our property more, but with the board not following some of the rules and mismanagement (as I see it, they don't) of funds, I feel the community will not have the funds to make proper repairs to the common area assets and the home values will go down.

We already have foreclosed homes in disarray, but the community walls and playground are starting to look just as bad. And, no one seems to care to volunteer. All this just made me not want to put money into a home in a community that I see going downhill. I think because of this, we will decide to move. And we would stay if we saw the HOA doing a better job with the finances and following the rules to keep in line.

In has been frustrating being on the board because I am the only woman, and the only family oriented person and the other's just don't know what it is like to bring their child to the type of park we have. No one goes there because it is terrible, but when I brought up possible improvements they had rejections that were based on assumptions on what people may do, my example was adding a fence around the park. I feel they are not connected emotionally with the families in the community and they keep shutting down my ideas, I hardly get any speaking time.

The community members have also approached the board asking for a better website and more festivals like we used to do before this current board took over. The board just shut them down and told them if they want it go do it themselves. And shut me down when I offered to create a website for free, saying they wouldn't know how to use it - it is so easy!

We used to have more people coming to monthly meetings but the board blows off everything the members say and people stopped coming and caring.

Sorry for venting, it is just frustrating when you care so much and see others care as well only to give up because it is like there is nothing they can do.

You may say then they should volunteer for the board, well some did, but I don't blame them for quitting because I feel the same way because we have the longest standing board members wanting to control everything and shut everyone else down. Not that they are bad people or have bad ideas of their own, but they don't represent the family and community oriented owners that live here.

FYI, we had some families get together and collect money for festivals and did it on their own. Some people still care, but the board is not supporting them or encouraging them.

Based on your recent replies here, follow Lawrence's advice. The board is ignoring you, but you need to rally friends and neighbors to support you at meetings. They need to know that terms of directors do actually end at some point. They & your board needs to know that, unless your docs state otherwise, that that director has no authority to throw directors off the board.

You cannot fight this ol' boys club by yourself!

How many are on the board? What size is your community? Do I understand you right? Homeowners elect the board president? In most HOA's, the Board elects the Board's officers.

You mention your previous P.M. Do you have a new one? Can s/he be of any help to you? Is s/he certified?

The Business Judgment Rule gives a corporate board a great deal of latitude in making decisions.

In those situations where the either the law or your community documents state you "shall" or "must" then you have no choice. I believe the law refers to these as "ministerial" duties or acts.

Virtually all other decisions are within the discretion of the board. The board may pick and choose which battles to fight and unless there is a clear abuse of discretion, the members cannot force the board to take a particular discretionary action.

Example:

The restrictions forbid plastic pink flamingos in the front yard. An owner puts a flock of flamingos in his yard.

If the CC&R's state that the association must enforce the restrictions or that the association has a duty to enforce them, then the board must do everything legal to remove the offensive birds.

On the other hand, if there is no duty imposed on the board then the board can lawfully shrug its collective shoulders and find other things to worry about.

Emily

Does the chat name SimoneT ring a bell?

In addition to your governing documents and State HOA/Condo laws, if your Association is incorporated, they must also follow FL corporate laws.

Glen, can you explain this to me, I don't fully understand: "Depending on the age of your community they may supersede sections of your CC&R's."

Thanks.

I think that what Glen is saying is that there may be state laws--applying to your type of HOA--that take precedence over your documents. One reason might be that the state laws are newer than yours.

Don't your documents, usually it would be Bylaws, specify under what circumstances directors can be "fired" from the Board? Typical reasons are the director isn't in "good standing," which means a certain period of time behind in dues, but also often in violation of rules for more that a certain period of time. Other reasons may include missing, say, 3 meetings a year. But these reasons must be in your governing documents! I'm sure your PM will agree.

I hope that your PM's contract says that she must abide by your governing docs AND state laws. In other words, it should say that she will NOT follow board directives that oppose those.