New Crazy HOA Litigation

Started by KevinK7 • 21 replies • 2070 views

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KevinK7 (Florida)
Posts: 1,343

Posted:

The BoD just held their meeting and it seems they have decided to vote on something that I had mentioned here once before. The BoD has voted to pursue litigation against individuals designated as "sexual predators" or "sexual offenders."

This, I believe, stems from a 2007 amendment that was passed that stated those designated as sexual predators or sexual offenders per Florida statutes cannot own, rent, or reside on a property in the neighborhood or face legal action. This to my knowledge was never enforced and as I have written here before, the covenants expired in 2009.

Why do I see this as a potential issue?

While laws are pretty absent regarding the discrimination of sexual predators or sexual offenders, especially in regards to the discrimination of tenants, I think the fact that they are pursuing litigation against owners can be an extremely costly move, and one with a high amount of risk. Especially since the neighborhood lost a discrimination case nearly 20 years ago when they changed the minimum age requirement and attempted to enforce that against families that then did not meet those new requirements. What I think makes this even more of an issue is the effect MRTA has had, meaning they are going to pursue litigation against people for owning a home based on an questionable amendment that no longer exists.

LarryB13 (Arizona)
Posts: 4,099

Posted:

I recently learned that one of my childhood friends is now a "sex offender." His crime was that he solicited what he thought was a 13-year-old-girl online. He never had any actual contact with this non-existent girl but now is required to register with the police for expressing his sexual fantasy online.

I bring this up as a reminder that the term "sex offender" covers a huge spectrum, from those like my friend whose only crime was typing on his keyboard to those like Ted Bundy, who have committed the most serious of crimes. (BTW, my friend was caught because he was foolish enough to provide his home telephone number to the other party.)

The Davis-Sterling website could cite only one case from New Jersey that even dealt with the issue of keeping sex offenders out of a community. I read the relevant portions of that case and found it not very convincing one way or the other. The person who brought the lawsuit was an owner who was not a sex offender, leading the court to conclude she lacked standing to sue. Ultimately, however, the court upheld the restriction because the plaintiff failed to produce enough evidence for the record to uphold any of her arguments. The plaintiff lost more due to procedural technicalities than to the merits of her arguments.

It should be noted that the New Jersey case involved restrictions only against Tier-3 sex offenders. Apparently to obtain this designation, one must have been convicted more than once, served the maximum sentence, and victimized children.

SallyR3
Posts: 113

Posted:

Wow Larry ... I would certainly be highly suspect of your friend and would not even want him near my kids. I have worked with men who I watch communicate with teenagers and left the event feeling they were predators.

Now back to the original poster. I would talk with the Sherrifs office and find out what is the best way to proceed before ever taking this to court. And if the BODs have done that already, then great. They'll know how to proceed. I've contacted the Sherrifs office here on several occasions and they have always given me responsible advice.

SallyR3
Posts: 113

Posted:

Another thing Kevin... 20 yrs ago things may have been different and pls someone correct me if I am wrong, but ii understand that CC&Rs plus ByLaws, they cannot be made to be retroactive.

Let's suppose I painted my home a color that is not one of the listed colors on the CC&Rs and let's suppose people complained. Then bc I am a buddy of the BODs they agree to change the house paint colors to include the one I chose and update the CC&Rs bc I was willing to slip them the money to do this. The courts would see this for what it was and would force me to comply with the CC&Rs as they were. That's why you lost the case 20 yrs ago.

So I may be wrong, but I think not.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Sally,

I held back the best part. The guy was an attorney! The solicitation was a misdemeanor but he was convicted of the felony of destruction of evidence. (I do not know what he destroyed.) He lost his law license because of the felony conviction and now works as a paralegal. He did a pretty good job of screwing up his life.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Posted By KevinK7 on 07/03/2014 12:44 PM
The BoD just held their meeting and it seems they have decided to vote on something that I had mentioned here once before. The BoD has voted to pursue litigation against individuals designated as "sexual predators" or "sexual offenders."

Personally I would recall the entire BOD and vote in new people. Its ok to have personal values against sex offenders, and I agree, but its not right to use the HOA money to pursue your personal moral values. Your HOA does not have they money to deal with the legal fees. Not to mention punitive damages for threats, intimidation, or harassment. In addition , each homeowner could face a special assessment of anywhere from $5,000 to $25,000 just to pay for the legal fees.

I dont care if its removing some guys shed, sex offenders, or anything else. Common sense has to prevail when your talking about what it will cost to fight something and chances of winning.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

This, I believe, stems from a 2007 amendment that was passed that stated those designated as sexual predators or sexual offenders per Florida statutes cannot own, rent, or reside on a property in the neighborhood or face legal action. This to my knowledge was never enforced and as I have written here before, the covenants expired in 2009

You cannot enforce amendments that break the law. Lets say it was a 2007 amendment that stated black people own, rent, or reside on a property in the neighborhood. Same thing. Not enforceable. You will loose in court. And everyone will end up paying out of pocket.

Good luck selling your house with a $25k lien on it for a special assessment.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Kevin

Are you not the one that says do to FL Covenants expiring (MRTA?) that you are not a member of the HOA?

While I believe their attempt to pass feel good stuff is misdirected (stupid, feel good only, will not stand up in court, etc.), the questions remains.

If not a member of their association, then why do you care?

Are you de facto admitting you are a member of their association?

You cannot have your cake and eat it also.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Advice:
Attempting to ban such persons from purchasing a home likely would be found unenforceable by the courts. While felons and sex offenders are not considered a "protected class" under anti-discrimination laws, it is possible that a restriction that prohibits sex offenders from purchasing a home in your community would not be upheld by the courts, or worse, expose the HOA to a potential civil rights claim.

Personally, I view my HOA as the people who take care of the roads, not the crusader for moral values and civil rights litigation.

If you want to do it on your own time and dime go for it. Leave me out of it.

GlenL (Ohio)
Posts: 5,491

Posted:

My question would be where the Board draws it's power to enforce anything if the deed restrictions expired due to MRTA. If the underlying restrictions expired in 2009 does an amendment if properly filed in 2007 remain? Where is the Board getting it's money to do this anyway and if it is now a voluntary HOA and the sex offenders opt out can the HOA do anything.

Here is an article about banning sex offenders in Florida that you might find helpful: http://www.hoaleader.com/public/242.cfm

Studies show that 5 out of 4 people have problems with fractions

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By JohnC46 on 07/03/2014 5:01 PM
Kevin

Are you not the one that says do to FL Covenants expiring (MRTA?) that you are not a member of the HOA?

While I believe their attempt to pass feel good stuff is misdirected (stupid, feel good only, will not stand up in court, etc.), the questions remains.

If not a member of their association, then why do you care?

Are you de facto admitting you are a member of their association?

You cannot have your cake and eat it also.

I am not a member but I care because their actions affect my property value, among other things.

For instance, foreclosures negatively impact property values. After they were informed of MRTA they continued to proceed with foreclosure litigation. One such case may now become an issue because the false claim filed by the association contributed to a foreclosure and eventual bankruptcy. Another nonmember was recently told by the attorney for the association that they can't re roof without HOA approval, and most recently the new management company threatened me with litigation because of potted plants on my porch and trash bins visible from the street.

If I ignore their actions they will become empowered and become far worse. If they litigate individuals for just owning a home because such ownership violates their rules, they can create other arbitrary rules that they will try to enforce.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By GlenL on 07/03/2014 5:59 PM
My question would be where the Board draws it's power to enforce anything if the deed restrictions expired due to MRTA. If the underlying restrictions expired in 2009 does an amendment if properly filed in 2007 remain? Where is the Board getting it's money to do this anyway and if it is now a voluntary HOA and the sex offenders opt out can the HOA do anything.

Here is an article about banning sex offenders in Florida that you might find helpful: http://www.hoaleader.com/public/242.cfm

When they filed to preserve the covenants not only did they file late, they also filed the wrong documents. They refiled all the documents from 1980 onwards but the property titles only refer back to the specific 1979 covenants. That underlying document is all that counts so even if they had a 2007 amendment, it would still expire. They have decided to ignore MRTA altogether and do their own thing.

What complicates things further is that the 1980 document they based everything off of was a release from the original covenants and a new set of covenants that doesn't change anything. The law is really specific and states nothing stops the clock. A lot of HOA attorneys believe that every ammendment filed resets the clock despite the courts ruling otherwise.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By SteveM9 on 07/03/2014 5:31 PM
Advice:
Attempting to ban such persons from purchasing a home likely would be found unenforceable by the courts. While felons and sex offenders are not considered a "protected class" under anti-discrimination laws, it is possible that a restriction that prohibits sex offenders from purchasing a home in your community would not be upheld by the courts, or worse, expose the HOA to a potential civil rights claim.

Personally, I view my HOA as the people who take care of the roads, not the crusader for moral values and civil rights litigation.

If you want to do it on your own time and dime go for it. Leave me out of it.

I don't know why they have waited to years to try an enforce this covenant. If those litigated against get a good attorney the HOA will be out a lot of money. Not only are the covenants expired and the amendment a questionable one (the last drafted from their previous attorney notorious for loose interpretations of the law), they have not consistently enforced the documents they claim still governs the properties.

There is also question as to how they litigate. There are some in the neighborhood that own property. Are they going to try and fine these individuals? Force them to sell their property? The whole situation can quickly become a circus.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By SallyR3 on 07/03/2014 3:12 PM
Another thing Kevin... 20 yrs ago things may have been different and pls someone correct me if I am wrong, but ii understand that CC&Rs plus ByLaws, they cannot be made to be retroactive.

Let's suppose I painted my home a color that is not one of the listed colors on the CC&Rs and let's suppose people complained. Then bc I am a buddy of the BODs they agree to change the house paint colors to include the one I chose and update the CC&Rs bc I was willing to slip them the money to do this. The courts would see this for what it was and would force me to comply with the CC&Rs as they were. That's why you lost the case 20 yrs ago.

So I may be wrong, but I think not.

I think the HOA believes their rules are retroactive because they filed paperwork years ago (and again with their notice of preservation) that they put the neighborhood on notice and that they can a d will enforce their covenants.

They also wrote covenants that reworded the original documents to grant them supreme authority over the properties and gave them power even over non-members. This was a trick their previous attorney used to avoid mandatory association laws. They made membership voluntary but membership eternal. That way they can claim they are voluntary and avoid particular laws protecting homeowners. They did this with a simple majority signing joinder and consent forms for their property.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By LarryB13 on 07/03/2014 2:12 PM
I recently learned that one of my childhood friends is now a "sex offender." His crime was that he solicited what he thought was a 13-year-old-girl online. He never had any actual contact with this non-existent girl but now is required to register with the police for expressing his sexual fantasy online.

I bring this up as a reminder that the term "sex offender" covers a huge spectrum, from those like my friend whose only crime was typing on his keyboard to those like Ted Bundy, who have committed the most serious of crimes. (BTW, my friend was caught because he was foolish enough to provide his home telephone number to the other party.)

The Davis-Sterling website could cite only one case from New Jersey that even dealt with the issue of keeping sex offenders out of a community. I read the relevant portions of that case and found it not very convincing one way or the other. The person who brought the lawsuit was an owner who was not a sex offender, leading the court to conclude she lacked standing to sue. Ultimately, however, the court upheld the restriction because the plaintiff failed to produce enough evidence for the record to uphold any of her arguments. The plaintiff lost more due to procedural technicalities than to the merits of her arguments.

It should be noted that the New Jersey case involved restrictions only against Tier-3 sex offenders. Apparently to obtain this designation, one must have been convicted more than once, served the maximum sentence, and victimized children.

I have had neighbors who are on the list simply because one was 18 while the other was 16 while dating in high school. I have several in my neighborhood for varying offenses. Some appear to be technical while others more serious. While as a parent this concerns me I also understand that there is a proper way to do things and that acting in a particular way against a group of people because they are not well liked.

For instance, homosexuals recently became a protected federal class but it is not farfetched to consider the possibility of a HOA drafting anti-LGBT amendments, especially when some relate them to sexual predators.

I don't want my neighborhood to be involved in another huge court case. As it is now, whenever you Google it those past court cases come up stating the HOA was discriminating against family status and race. Can you imagine if the first thing on Google involved my neighborhood and sexual predators?

AnnH5 (Florida)
Posts: 304

Posted:

Not an attorney but I would think that HOA "amendments" and restrictions can not supersede or go against federal or state laws regarding discrimination. Not only that, what would happen to an owner who buys a home in the community, is later convicted of a sex crime and is labeled as a sexual offender?

Personally I have no desire to live next to a sex offender. The reality is that I probably have sex offenders in my neighborhood but they either haven't been caught or they didn't have charges pressed against them (yet). Which is probably the same as all of the drug users in my neighborhood and the folks who like to drink and drive. That is where I think we should let Law Enforcement do it's job and not have the Association attempt to take over those duties.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By AnnH5 on 07/04/2014 8:37 AM

Not an attorney but I would think that HOA "amendments" and restrictions can not supersede or go against federal or state laws regarding discrimination.

Well, since sex offenders are not one of the protected classes identified, it's likely that those laws may not apply. Honestly, that issue will likely be a deciding factor in any legal action.

Kevin,

My suggestion is to have the Association seek a couple legal opinions on the issue prior to moving forward on enforcement. Of course the request for a legal opinion needs to be asked correctly.

Asking, does the association have a right to enforce the covenants?, will most likely get a positive response.

I would suggest asking: Can the Association win a legal challenge to banning sex offenders from residing in the community? with a follow up of: Expecting appeals, how long and what might the cost realistically be?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Here are some articles on the topic:

Can your homeowner association ban sex offenders? article from a management company

HOA ban on sex offenders leads to lawsuit a 2013 article from a blog that can't be identified who posted the info (i.e. take it with a grain of salt)

Sex Offenders: Can they be banned by a community? 2012 article from condolaw.net

Indiana HOA bans sex offenders a thread from this forum in 2008

From what I'm reading, an Association has a better chance of having the ban upheld if the restriction is in the CC&Rs (deed restrictions) vs. any other document. Additionally, although there seems to be a lot of blogs and opinions on the topic, there are very few legal challenges to such bans. Therefore, until it's challenged, you aren't really going to know if it's legal or not.

I suspect the lack of challenges is due to the individual not wanting to bring additional media attention to their conviction.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By TimB4 on 07/04/2014 1:16 PM

Posted By AnnH5 on 07/04/2014 8:37 AM

Not an attorney but I would think that HOA "amendments" and restrictions can not supersede or go against federal or state laws regarding discrimination.

They are on their second attorney with amendment but opinion of their attorneys is not high. After all, their first lawyer lied and misrepresented cases to my family and the second lawyer completely ignored bar rules and ignored my legal representation, as well as ignoring Florida statutes. I will try to communicate the risks to them but I think they have a serious case of group think going on

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By KevinK7 on 07/04/2014 2:04 PM

Posted By TimB4 on 07/04/2014 1:16 PM

Posted By AnnH5 on 07/04/2014 8:37 AM

Not an attorney but I would think that HOA "amendments" and restrictions can not supersede or go against federal or state laws regarding discrimination.

Kevin

Why do I think they will pay no attention to your "communication".....LOL

GlenL (Ohio)
Posts: 5,491

Posted:

Kevin I can never decide whether you are a member of the "HOA" or not but if you really want to tweak them, either start or have someone who is a member start a petition to hold a Special Meeting to repeal the 2007 amendment.

Studies show that 5 out of 4 people have problems with fractions

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By GlenL on 07/04/2014 5:34 PM
Kevin I can never decide whether you are a member of the "HOA" or not but if you really want to tweak them, either start or have someone who is a member start a petition to hold a Special Meeting to repeal the 2007 amendment.

The neighborhood is in a weird state. Most of the original residents are gone leaving me as one of the longest homeowners in the neighborhood. I am familiar with the laws and procedures and the history. For years my family raised questions, like why the HOA paid for health insurance for their part time office employee or what budget discrepancies were. We were always igbored.

My original goal was to try and set the HOA on the right path. I pushed them to follow the laws and the rules and regulations of the association. The problem was that the board preferred the stock and easy route. Recently a homeowner tried to recall the board. The board used their newsletters to paint the individual as a kook. I had even tried to get homeowners who were unhappy to do something. I coached them about the bylaws, covenants, and statutes but they never grasped it. It also doesn't help that the association rewrote the bylaws to make it easier for incumbents to tension in power. Any challenger I have met had been discouraged by the costs associated with opposing the HOA

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