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KevinK7 (Florida)
Posts: 1,343
Posted:
I was thinking of the public streets question and thought this subject was similar. If there is no mention of mailboxes in the C&Rs, are they covered by the C&Rs?

They are located on county right-of-way, so they are technically not part of the property but they are owned by the homeowner, who is responsible for its maintenance. If there is no mention of mailboxes would they even be covered under general appearance clauses? I think that if that was the casr then dirty cars ciuld becomr violations.
SheliaH (Indiana)
Posts: 6,964
Posted:
How dirty is dirty? Can you be a little more specific?

As for the CCRs, there may be language that allows the Board to enact various rules, as long as they don't violate the CCRs. For example, there may be a general clause in the CCRs about home maintenance being the owner's responsibility and the Board could then enact something concerning the mailboxes (they should be planted into the ground, compliant with US Post Service rules, numbers clearly displayed, etc.) Check your CCRs and if you still don't see anything talk to the Board.

Personally, I think the mailboxes one might be concerned about the ones on the verge of falling apart, numbers, missing, etc., whereas one that's holding up, but with chipped paint could be tolerated (otherwise, you might be heading into "nit picking" territory.)

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
TimB4 (Tennessee)
Posts: 21,059
Posted:
There likely are no mention of many things within the CC&Rs. This is typically why most CC&Rs have a catchall category of "No noxious or offensive activities shall be carried on upon property, nor shall anything be done thereon which may become an annoyance or nuisance to the neighborhood."

Therefore, if your Association things it's reasonable to go after someone for a dirty car or dirty mailbox or dirty windows for that matter under it being an annoyance or a nuisance, they certainly may do so. If my Association tried it on me, I would force them to take the issue into the courts and let the courts decide if their interpretation was reasonable or not.
KevinK7 (Florida)
Posts: 1,343
Posted:
Quote:
Posted By SheliaH on 07/14/2014 2:25 PM
How dirty is dirty? Can you be a little more specific?

As for the CCRs, there may be language that allows the Board to enact various rules, as long as they don't violate the CCRs. For example, there may be a general clause in the CCRs about home maintenance being the owner's responsibility and the Board could then enact something concerning the mailboxes (they should be planted into the ground, compliant with US Post Service rules, numbers clearly displayed, etc.) Check your CCRs and if you still don't see anything talk to the Board.

Personally, I think the mailboxes one might be concerned about the ones on the verge of falling apart, numbers, missing, etc., whereas one that's holding up, but with chipped paint could be tolerated (otherwise, you might be heading into "nit picking" territory.)

The property has expired covenants. The C&Rs when they were in effect didnt really have a nuisance clause (I'd have to double check though), the mailbox is about 20-30' from the property. It really is not dirty. It is a green plastic box like the ones from Home Depot and the post is a standard wood post painted brown. Older coat of paint but the wood is still covered fully and the plastic may faded slightly but it is no dirtier then every other mailbox in the neighborhood. Maybe sand or grass clippings by the base from when the neighborhood lawn crew maintain the right-of-way.

My opinion - this violation came a month after the firat violation they sent regarding potted plants on the porch. They were informed that they were to not communicate with me since I had legal representation. They also sent a second notice and another violation stating weeds were present, and if you are familiar with Florida during the rainy season (it has rained every day for the last couple weeka) weeds appear overnight. I believe these 2 additional violations are meant to intimidate. I mean a dirty mailbox? Come on.
KevinK7 (Florida)
Posts: 1,343
Posted:
I suppose mailboxes could be enforced if they were in extreme disrepair and there was mention of them in the original documents.

What I find peculiar is that while the management company has decided to go after me for these petty violations they jave not sent a notice for nonpayment of dues for over 2 years. The HOA seems to invent the C&Rs as they go along. Expired covenants? Whats that? Mandated membership? You can leave only at the end of December after you pay for the year. Home improvements? The BOD needs to approve despite no eatablished legal ARC. I have no clue what they are even basing their decisions off of because everything they are attempting to enforce was not really in the documents rhey tried to preserve.
KevinK7 (Florida)
Posts: 1,343
Posted:
So I got a chance to review everything in detail and this is what I find funny - the management company cited this particular restriction as cause for the violation notice:

All dwelling units, structures, buildings, out buildings, walls, and driveways placed and maintained on The Property or any portion thereof, shall at all times be maintained in good condition and repair.

As I had stated before, the mailbox, while in good condition and in perfect operating order, is not located on The Property, as defined by the documents they have chosen to try to enforce.

Of course this is meaningless since the C&Rs expired.

One other thing I found interesting with the violation letters is that 2 of them demand 30 days to communicate with them my intentions while the third demands 10 days. They require communication through mail, fax, or email only, and that doesn't seem to do any good being that I already attempted to communicate with them through the means they desired and they completely ignored my communication.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Kevin,

I know that you are in a unique situation with the CC&Rs falling under MRTA.

However, I'm a little confused.

Is the MRTA situation resolved, in that there are now no deed restrictions attached to your lot?
Is this issue recent or happened previously?
KevinK7 (Florida)
Posts: 1,343
Posted:
Quote:
Posted By TimB4 on 07/14/2014 11:32 PM
Kevin,

I know that you are in a unique situation with the CC&Rs falling under MRTA.

However, I'm a little confused.

Is the MRTA situation resolved, in that there are now no deed restrictions attached to your lot?
Is this issue recent or happened previously?

I guess you can say it was somewhat resolved. The law states is very specific and grants no exceptions. You can be ignorant of the law or file late. It doesn't matter. The covenants expire. The neighborhood ignored this, filed late, and continued to enforce. To put it simply, the covenants expired in 2009. When they were notified in 2012 about the situation they left me alone but continued to enforce the expired covenants on my neighbors. While the C&Rs expired it is my understanding that they can do whatever they want unless challenged (explained to me from various lawyers and government agencies). The problem is that it is truly a David v. Goliath scenario. The matter was never settled in the courts although there is plenty of legal precedent, as well as the extremely clear letter of the law, on the side of the homeowners. But not many homeowners in my neighborhood have the resources to fight.

Over the last couple years more and more homeowners have been dropping out of the association so the HOA recently acquired a property management company that prides itself as being proactive and aggressive. If I remember correctly, the property management firm was chosen because a resident or board member works for them.

KevinK7 (Florida)
Posts: 1,343
Posted:
What I find more interesting then the whole MRTA situation is the complete disregard for any rules or regulations that they are pretending to uphold. That is probably what bothers me the most. I want to play by the rules but I find it unfair when the other player makes up their own rules. Like this whole mailbox. Had there been no specific language defining the enforceable area in the original covenants then I would have agreed that enforcement was open to interpretation. But when the covenants they are citing states XYZ then I expect them to only apply to XYZ.

With each situation that springs up in my neighborhood, like the charging of estoppel fees or inventing one day out of the year that you could withdraw membership, I find the debate intriguing. I really want to have a better understanding of the thought processes behind the actions of the HOA. It also doesn't help that Florida has plenty of misunderstood laws for HOAs.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Sounds like you need an attorney to write a letter to the MC with a copy to the Associations Registered agent. You may want to also file a complaint against the MC license.
KevinK7 (Florida)
Posts: 1,343
Posted:
I was going to have my attorney send a letter. Part of me was thinking it was a misunderatanding on their part with them being new and them not understanding the situation. It is a little bothersome that this is a big management company that specializes in property management. You would think they would have done their homework. Luckily I keep excellent records.

BanksS
Posts: 403
Posted:
Quote:
Posted By KevinK7 on 07/14/2014 11:47 PM
What I find more interesting then the whole MRTA situation is the complete disregard for any rules or regulations that they are pretending to uphold. That is probably what bothers me the most. I want to play by the rules but I find it unfair when the other player makes up their own rules. Like this whole mailbox. Had there been no specific language defining the enforceable area in the original covenants then I would have agreed that enforcement was open to interpretation. But when the covenants they are citing states XYZ then I expect them to only apply to XYZ.

With each situation that springs up in my neighborhood, like the charging of estoppel fees or inventing one day out of the year that you could withdraw membership, I find the debate intriguing. I really want to have a better understanding of the thought processes behind the actions of the HOA. It also doesn't help that Florida has plenty of misunderstood laws for HOAs.

Kevin I am confused. Is the Association trying to enforce the CC&Rs on the voluntary members but that enforcement includes things not even listed in the CC&Rs such as the mailbox? If so, why don't your neighbors just ignore them? What lengths does the Association go to get compliance from the voluntary members?

This intrigues me because I live in a similar situation that being expiration of the CC&Rs. The board tries to enforce things from the CCRs from time to time but most of my neighbors don't pay much attention to them. I'm not saying the collection of assessments and dues but from an architectural stand point. They have no control over those things.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By KevinK7 on 07/15/2014 4:42 AM

You would think they would have done their homework.

Why?

They were hired by an Association. Given documents that they had reason to believe were enforceable (as nobody was telling them different) and were fulfilling the terms of their contract. Even with your communications sent to the MC, I don't think that they had any more responsibility then to go back to the Board and ask if this is true or not. If the Board said you didn't know what you were talking about, then they again had no reason to question. Now, if your attorney sends a letter specifying that further attempts at enforcement will result in actions taken against their license (if such actions can be taken) then it now becomes an issue between you and the MC.

Otherwise, it's simply an issue between you and their employer, the Association.
KevinK7 (Florida)
Posts: 1,343
Posted:
Quote:
Posted By TimB4 on 07/15/2014 4:56 AM
Posted By KevinK7 on 07/15/2014 4:42 AM

You would think they would have done their homework.


Why?

They were hired by an Association. Given documents that they had reason to believe were enforceable (as nobody was telling them different) and were fulfilling the terms of their contract. Even with your communications sent to the MC, I don't think that they had any more responsibility then to go back to the Board and ask if this is true or not. If the Board said you didn't know what you were talking about, then they again had no reason to question. Now, if your attorney sends a letter specifying that further attempts at enforcement will result in actions taken against their license (if such actions can be taken) then it now becomes an issue between you and the MC.

Otherwise, it's simply an issue between you and their employer, the Association.

I always thought of it from a business perspective. Because of the seriousness of the business (manauing properties and enforcing legal documents) you would think a business would want to minimize risk by making sure their client is who they say they are. Sort of like a corporate background check.
KevinK7 (Florida)
Posts: 1,343
Posted:
Quote:
Posted By BanksS on 07/15/2014 4:55 AM
Posted By KevinK7 on 07/14/2014 11:47 PM
What I find more interesting then the whole MRTA situation is the complete disregard for any rules or regulations that they are pretending to uphold. That is probably what bothers me the most. I want to play by the rules but I find it unfair when the other player makes up their own rules. Like this whole mailbox. Had there been no specific language defining the enforceable area in the original covenants then I would have agreed that enforcement was open to interpretation. But when the covenants they are citing states XYZ then I expect them to only apply to XYZ.

With each situation that springs up in my neighborhood, like the charging of estoppel fees or inventing one day out of the year that you could withdraw membership, I find the debate intriguing. I really want to have a better understanding of the thought processes behind the actions of the HOA. It also doesn't help that Florida has plenty of misunderstood laws for HOAs.


Kevin I am confused. Is the Association trying to enforce the CC&Rs on the voluntary members but that enforcement includes things not even listed in the CC&Rs such as the mailbox? If so, why don't your neighbors just ignore them? What lengths does the Association go to get compliance from the voluntary members?

This intrigues me because I live in a similar situation that being expiration of the CC&Rs. The board tries to enforce things from the CCRs from time to time but most of my neighbors don't pay much attention to them. I'm not saying the collection of assessments and dues but from an architectural stand point. They have no control over those things.

So basically the covenants expired. The neighborhood was voluntary but they converted to lifetime mandatory membership by simple majority in 2002 (with the catch that it was still voluntary to join to avoid Florida HOA statutes).

Most homeowners are unaware or believe the HOA. It is a former retirement community so most of the older residents were sort of grandfathered (no pun intended) and the newer residents only know what they were told when they bought. The county even lists them as mandatory and when I inquired they said they just go off of what the websites for the communities say.

I am not well liked because my family has asked questions for years, like why they were paying health insurance benefits for the one employee or why the budget kept increasing, especially when the properties held by the HOA are paid for by a special tax district set up in the 80s bevause the developer made the neighborhood voluntary and the HOA complained they couldnt afford to maintain the properties.

The covenant situation is much trickier. The original covenants are from 79 but the homeowners signed a release from the covenants in 1980 for a new set that was less restrictive. And even then not every lot signed onto the new resteictions. Then in 2002 the HOA rewrote the covenants making it voluntary mandatory and granted them sole authority to enforce the covenants. Problem is they never changed any of the titles so all our properties referred back to the 1979 covenants.

What is even worse is that the HOA insists the 1980 covenant and all future amendments are valid but then they make up rules as they go along. Their former attorney was fond of including provisions in the C&Rs that referred to the bylaws and then making it easier for the BoD to make changes in the by-laws, like assessing homeowners with no homeowner approval. So now you have the HOA claiming architectural control and assesment rights.

And they litigate those who dont follow. I raised questions and my attorney is one of the premier HOA attorneys. Apparently he has a reputation for being good. They left me alone. Another homeowner stopped paying at the same time because she was pregnant and became unemployed and they forclosed on her. They demanded rent from tenants of another and most recently they have decided to litigate sex offenders for owning property.

The situation is a mess. This is part of why MRTA was enacted - to free ptoperties from encumberances but the legislature stripped enforcement from the Department of Business and Professional Regulation so then you get these legal quagmires where the law says one thing but associations do another.

BanksS
Posts: 403
Posted:
Wow your situation is way more complicated than mine.

Where I live, once a homeowner declares to the Association that the BOD has no authority to enforce architectural elements, they back down. I am in the process of looking at sheds too (yikes another shed issue) and I am not contractually required to submit plans or follow the expired CC&Rs as to its specifications. With that being said, when the time comes, I will inform the BOD of my intentions to build a shed but just as a courtesy. I am disliked by the HOA as well so I see no need to raise any scrutiny from the BOD. Our president used to drive around the development to look for violations. It's just not worth any aggravation. I've definitely learned to choose my battles here. Now the BOD focuses on the new home owners (those owners building new homes.)The new home owners don't know any different than what is told to them by the HOA. They believe it as gospel.

In your HOA, just to be clear a new property owner is not lawfully required to belong to the HOA but if they volunteer to belong their membership is lifelong and they cannot opt out at some point? But this membership does not pass onto the new owner, correct? If my interpretation is correct that is really interesting.
KevinK7 (Florida)
Posts: 1,343
Posted:
I have been doing additional research because of this recent situation and discovered that when the original homeowners released the properties of the original covenants and reimposed a new set, they collected 2/3rd signatures and then intended to reimpose brand new covenants and restrictions on those properties. Here is the relevant text (emphasis in bold):

Now therefore, Owner declares that all of the properties above described shall be held, sold and conveyed subject to the following Covenants, Agreements, Restrictions, Easements and Conditions which are for the purpose of protecting the value and desirability of and which shall run with the Real Property and shall be binding on all parties having any right, title or interest in the described property or any part thereof, their heirs, successors, personal representatives, and assigns, and shall inure to the benefit of each such owner thereof.

The "properties above described" refers to the several pages of signatures from the individual property owners in which the instrument signed specifies the applicable lot. My lot was not included.

My understanding is that these set of covenants (the ones the HOA preserved) were used to cancel the existing covenants and then reimpose covenants, but only on the properties that signed up to be part of the new neighborhood. The HOA's belief is that it applies to all property owners, as made obvious by their actions.

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