rules

Please help me understand the following issues: First: Can the HOA enforce some rules and not others? For example, there are 375 units (homes) in our community. Since its establishment, 12 years ago, we have lost approximate 650 hard wood tree. Each lot is require to have a minimum of 4 hard wood trees per lot. Some homes are completely tree free.
Second: Religious artifacts stationed on the front of a home owners home. Is there something that can be done to have them removed? Third: Can the HOA be sued for neglecting their fiduciary responsibilities?

Jose, as Jay pointed out, each Board has the descretion of what rules to enforce. However, if they enforce one rule on one, they must enforce that same rule on others.

The governing documents typically authorize the Association and members to enforce the covenants. However, just as the member doesn't have to exercise that authority (by taking their neighbors to court), the Association typically isn't required to exercise their authority to enforce.

However, some governing documents actually do require Assocaitions to enforce all of the covenants. Therefore, check your governing documents to see if this is a requirement in your Association.


This can be a tricky issue for any Association.

Normally, the governing documents require prior approval before changing the exterior look of the property. Most Associations interpret this requirement for any change, including lawn decorations or statuary. Some Associations, like mine, allow such items but limit the size and/or number. A few Associations don't see the need for prior approval for minor changes.

The issue when the lawn decoration or statuary is of a religious nature is that even if the Association is trying to enforce the governing documents fairly and treat the item as an exterior change, the owner may see such enforcement as an attack on their religious freedoms. There are many news articles about that sort of thing and, regardless if the Association is 100% correct or not, if the issue makes the news, potential buyers may not want to look to purchase in the development.

My advice, review your governing documents and, if exterior changes require prior approval, ask if the lawn decorations/statuary were approved and see what the response is.


Yes. However, unless you can prove actual financial damages, the best you can get a court to do is to order the Board to perform their fiduciary duty on the issue. For example: If your talking about enforcement issues, the Court could order the Board to enforce (however, since you also have the authority to enforce be ready to answer the question as to why you chose to bring legal action against the Board vs. bringing legal action against the individual in violation).

Legal battles are expensive and time consuming. Additionally, even if you believe that you are 100% correct, there is always the issue of losing on a technicality. Additionally, If you initiate the legal action, you will not only have your legal expenses but will be required to pay your fair share of the Assocaitions legal expenses (as the money to pay Association expenses come from the Assessments members pay). There will also be unintended consequences associated with such legal action. Examples of these are: loss of potential buyers, loss of friends (if they are required to pay special assessments to pay the Associations legal expenses), division in the membership (those who support the action and those who don't).

It's typically cheaper and quicker to gather support from your neighbors and either recall the Board or simply not re-elect them and put in volunteers who will actually address the issues you have. Perhaps you can volunteer to serve on the Board and, if elected, be included when making the decisions about enforcement.

Perhaps, the Board simply doesn't have enough volunteers to have the time to enforce. If this is the case, you could offer your time to chair an enforcement committee.

Hope this helps,

Tim

Jose:

The following is now stated under FL Statutes and possibly why the provision in your documents is no longer enforced. Keep in mind that the state laws are constantly changing and can supersede your documents at any time as Steve noted above.

720.3075 Prohibited clauses in association documents.—

(4)(a) The Legislature finds that the use of Florida-friendly landscaping and other water use and pollution prevention measures to conserve or protect the state’s water resources serves a compelling public interest and that the participation of homeowners’ associations and local governments is essential to the state’s efforts in water conservation and water quality protection and restoration.
(b) Homeowners’ association documents, including declarations of covenants, articles of incorporation, or bylaws, may not prohibit or be enforced so as to prohibit any property owner from implementing Florida-friendly landscaping, as defined in s. 373.185, on his or her land or create any requirement or limitation in conflict with any provision of part II of chapter 373 or a water shortage order, other order, consumptive use permit, or rule adopted or issued pursuant to part II of chapter 373.

Yes, what is the artifact exactly? why is it a problem to you or other residents?

Tim,
Great info. I'm pretty frustrated with the way the asso. pass and present have managed this community. They are so laid back when it comes to enforcing basic rules & regulations. What's the purpose of living in a deed restrictive community if they are not enforced? Why bother to pay dues? In fact, the asso. has turn their responsibilities to a management company so they won't have to think or do much. Over one third of our HOA fees are going towards paying the management company, lawyers fees and postage. In the mean time, our common areas look crappie. Actually embarrassing. There's no plan or effort to beautify or maintain the common areas. That's what usually attracts home buyers into a community. That the selling point of all builders. The HOA has no clue on how to market this community and make it appealing to potential buyers.