Florida HOA selective enforcement of paint restrictions

JimB27 (Florida)
Posts: 4

Posted:

Appreciate any guidence anyone can provide. Recently a resident of our community received a warning letter that they must paint their houses trim in accordance with the approved color chart. (it has been dark brown for approximately 3 years.) There are approximately 75 homes in our community that are subject to the same deed restrictions and color chart that have dark brown trim and when this fact was brought to the attention of the HOA office they said some homes were exempted based on their original color and dates that they were painted. When we asked for documentation of this policy they could not produce anything addressing why some homes would be allowed brown trim. Florida statute 720.3035 seems to address this.... but the resident is inclined to simply repaint rather than incur legal expenses. Is there an agency in Florida that deals with issues such as this? Appreciate any help!

JohnB26 (South Carolina)
Posts: 1,001

Posted:

YES

it is called the Judicial System

JimB27 (Florida)
Posts: 4

Posted:

Was hoping there was a state agency available to a homeowner rather than having to lawyer up.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

You may petition the court(s) for an injunction for contract adherence.

You may petition the court(s) to appoint a receiver if things are REALLY REALLY bad.

Receivership would be a last resort as it is VERY VERY expensive to the HOA.

ps. There 'may' be an ombudsman office in effect in FL - not sure

JohnB26 (South Carolina)
Posts: 1,001

Posted:

try: http://www.hoa-condoblog.com/JBBlog6112.html

JimB27 (Florida)
Posts: 4

Posted:

Appreciate the advice, Thanks

RickP2 (Idaho)
Posts: 12

Posted:

John really should not be giving out advice about the system in Florida if he does not live here and fully understand it. Advice from somebody in another state will typically provide you with incorrect information as Florida's statutes regarding HOA's, Condo's and Co-Op's are like non other.

There may be a very legitimate reason for the change in allowed colors and the information you were provided. In 2007 the entire architectural process changed from a relatively subjective process where a committee made a decision based upon the harmony of the modification with the rest of the community to a system where all options must be in a written policy and available to all residents....no more subjectivity allowed.

So brown shutters that may have been painted in 2007 may well have been done correctly and in 2015 you are now restricted to whatever the current policy dictates. Let it be said that the current policy can be changed, modified or amended by the committee at will with proper notice given to the membership.

So yes, what they did is likely quite legal and appropriate.

As for John, I will promise not to give advice to homeowners in your state if you promise to keep your uninformed advice out of Florida.

JimB27 (Florida)
Posts: 4

Posted:

I appreciate your comments, regarding the selective enforcement aspect,... what justification could an HOA have to allow numerous homes (about 75 in a community of 800 homes) which are subject to the same deed restrictions and color chart to have brown trim and threaten legal action against another.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By RickP2 on 06/11/2015 6:05 PM
As for John, I will promise not to give advice to homeowners in your state if you promise to keep your uninformed advice out of Florida.

What part of John's advice was incorrect for Florida? The blog he linked is the "Florida HOA & Condo Blog". Before that he mentioned injunctive relief and receivership if things get really bad. Those things are real in Florida, too.

I see nothing wrong with what John was saying regardless of where he lives. Things that he said 10 weeks ago, btw.

RickP2 (Idaho)
Posts: 12

Posted:

Jim,

I was not commenting on selective enforcement as you have not shown that it is selective enforcement. There are multiple possible reasons that 75 out of 800 homes have legal brown shutters and you cannot have them on your home now. Here are a couple which I referenced above:

1. Prior to 2007 Florida HOA's typical architectural policies involved the homeowner completing an application to modify their dwelling/lot with whatever they wished to do. It was sent to the architectural committee who reviewed the application and made a decision as to whether the modificatioon was harmonious with the rest of the community. In regards to painting specifically, a homeowner would usually send in color chips from their paint store indicating what they wanted to use. The committee would review the paint colors and make a decision as to whether it was harmonious and if so, approve it. If not, disapprove or approve with conditions. As committee changed every year and color schemes (tastes) change at time goes on, for instance pastels are no longer that popular here, what was approved was changed. So if you had brown shutters approved with last years committee and the committee this year determined that brown shutters no longer fit the community, then you would have some approved homes with brown shutters and some without and everything would be perfectly legal and above board.

2. Since 2007/2008 the legislature passed new law that basically forced associations to stop with the subjective decisions of a committee of three sitting around a kitchen table and deciding one application after another based upon how they felt at the time. The law now states that the association can control the architectural improvements (location, size, color, type, appearance, etc) with the Declaration or published guidelines and standards and there is no more sitting around the table determining whether you like neighbor Joe's color selection. Now you must have a written policy which usually means a color pallet for homeowners to choose from and if it is in the guidelines and standards, the ACC cannot deny it. This was supposed to take that subjectivity out of the process, however, somebody has to make the decision as to what goes into the color scheme, so it is still slightly subjective. Now back to your issue, if in 2007 or 2008 your association created a paint policy which included a color pallet and it did not include brown shutters, then again this is a perfectly logical and legal reason for why some houses painted earlier could have brown shutters and you cannot.

3. Some Associations policies (note the word SOME) set there policy to indicate that you could paint your home the same color it is currently, or the same color the developer painted it originally, and if you did not do so, you had to choose from one of the approved paint schemes in the pallet. So here is another reason somebody else might today be able to paint their shutters brown and you cannot.

Point being here is that you must do the homework, find out ALL of the facts, and then decide what your next step is. I hope this shows you that just because some folks have brown shutters and you cannot does not necessarily mean that there is selective enforcement or something hincky going on.

Geno,

No problem with the blog....my problem is that if you are going to give advice on a forum like this, you need to know what you are talking about. Too many people like to hear themselves talk (or type) and give incorrect or improper advice to folks like Jim who simply want an answer. Would you give advice to somebody in CA about how their system works? Plus, the comment about receivorship over a paint selection issue is ridiculous.....

RickP2 (Idaho)
Posts: 12

Posted:

Jim,

I was not commenting on selective enforcement as you have not shown that it is selective enforcement. There are multiple possible reasons that 75 out of 800 homes have legal brown shutters and you cannot have them on your home now. Here are a couple which I referenced above:

1. Prior to 2007 Florida HOA's typical architectural policies involved the homeowner completing an application to modify their dwelling/lot with whatever they wished to do. It was sent to the architectural committee who reviewed the application and made a decision as to whether the modificatioon was harmonious with the rest of the community. In regards to painting specifically, a homeowner would usually send in color chips from their paint store indicating what they wanted to use. The committee would review the paint colors and make a decision as to whether it was harmonious and if so, approve it. If not, disapprove or approve with conditions. As committee changed every year and color schemes (tastes) change at time goes on, for instance pastels are no longer that popular here, what was approved was changed. So if you had brown shutters approved with last years committee and the committee this year determined that brown shutters no longer fit the community, then you would have some approved homes with brown shutters and some without and everything would be perfectly legal and above board.

2. Since 2007/2008 the legislature passed new law that basically forced associations to stop with the subjective decisions of a committee of three sitting around a kitchen table and deciding one application after another based upon how they felt at the time. The law now states that the association can control the architectural improvements (location, size, color, type, appearance, etc) with the Declaration or published guidelines and standards and there is no more sitting around the table determining whether you like neighbor Joe's color selection. Now you must have a written policy which usually means a color pallet for homeowners to choose from and if it is in the guidelines and standards, the ACC cannot deny it. This was supposed to take that subjectivity out of the process, however, somebody has to make the decision as to what goes into the color scheme, so it is still slightly subjective. Now back to your issue, if in 2007 or 2008 your association created a paint policy which included a color pallet and it did not include brown shutters, then again this is a perfectly logical and legal reason for why some houses painted earlier could have brown shutters and you cannot.

3. Some Associations policies (note the word SOME) set there policy to indicate that you could paint your home the same color it is currently, or the same color the developer painted it originally, and if you did not do so, you had to choose from one of the approved paint schemes in the pallet. So here is another reason somebody else might today be able to paint their shutters brown and you cannot.

Point being here is that you must do the homework, find out ALL of the facts, and then decide what your next step is. I hope this shows you that just because some folks have brown shutters and you cannot does not necessarily mean that there is selective enforcement or something hincky going on.

Geno,

No problem with the blog....my problem is that if you are going to give advice on a forum like this, you need to know what you are talking about. Too many people like to hear themselves talk (or type) and give incorrect or improper advice to folks like Jim who simply want an answer. Would you give advice to somebody in CA about how their system works? Plus, the comment about receivorship over a paint selection issue is ridiculous.....

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By RickP2 on 06/12/2015 10:10 AM
Geno,

No problem with the blog....my problem is that if you are going to give advice on a forum like this, you need to know what you are talking about. Too many people like to hear themselves talk (or type) and give incorrect or improper advice to folks like Jim who simply want an answer. Would you give advice to somebody in CA about how their system works? Plus, the comment about receivorship over a paint selection issue is ridiculous.....

Yeah, going from paint selection to receivership in one fell swoop is a little over the top. There are people here who comment all the time on situations and issues that people post from states different from their own. If someone from California asked a question and the relevant CA statutes were online then I see nothing wrong with looking them up and telling the poster, "Here is where you should start looking". Things like noise complaints, architectural controls, governing documents... those are all common discussion topics that transcend whichever particular state is involved. Recently there was a thread here about CA Small Claims court. I stayed out of that one because I know nothing about the CA court system. You have to pick your spots.

RickP2 (Idaho)
Posts: 12

Posted:

You know Geno, you may be able to research another state's statutes, but unless you are familiar with their case law and jurisdictional issues, I would stay out of most other state's issues. That's just me and I tend to be conservative because if I give advice or comment, I want to be 100% certain I know what I am talking about. Have a good weekend...

RickP2 (Idaho)
Posts: 12

Posted:

You know Geno, you may be able to research another state's statutes, but unless you are familiar with their case law and jurisdictional issues, I would stay out of most other state's issues. That's just me and I tend to be conservative because if I give advice or comment, I want to be 100% certain I know what I am talking about. Have a good weekend...

GenoS (Florida)
Posts: 4,276

Posted:

If people had to be 100% certain before saying anything the internet would be a pretty boring place. Point taken, however, on not willy-nilly spouting off. We'll just have to amicably disagree. Same to you, have a good weekend.

BobD4 (up north)
Posts: 1,002

Posted:

"..what justification could an HOA have to allow numerous homes (about 75 in a community of 800 homes) which are subject to the same deed restrictions and color chart to have brown trim and threaten legal action against another."

At the risk of not being from Florida, nevertheless properly documented 'grandfathering' -or a documented 2or 3 year grace period until next prudent re-paint/re-stain - might make sense from an enforcement standpoint. Part of resistance in 2015 to enacting a needed change or uniformity, may be exactly an argument such as "We just re-painted in 2013 following the standard of 2013". There may be no magic wand, and applying universally only at next replacement of short-term items might be justified reducing toxicity & expense, not cronyism.

RickP2 (Idaho)
Posts: 12

Posted:

See what I mean Geno....

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By JimB27 on 04/02/2015 2:08 PM
Appreciate any guidence anyone can provide. Recently a resident of our community received a warning letter that they must paint their houses trim in accordance with the approved color chart. (it has been dark brown for approximately 3 years.) There are approximately 75 homes in our community that are subject to the same deed restrictions and color chart that have dark brown trim and when this fact was brought to the attention of the HOA office they said some homes were exempted based on their original color and dates that they were painted. When we asked for documentation of this policy they could not produce anything addressing why some homes would be allowed brown trim. Florida statute 720.3035 seems to address this.... but the resident is inclined to simply repaint rather than incur legal expenses. Is there an agency in Florida that deals with issues such as this? Appreciate any help!

Jim, I am trying to understand your situation. Are you saying that currently there are many homes in your community that are not painted with dark brown trim and only 75 of those are being told to repaint? If so, were those 75 houses recently painted where the new color palette was in place but those 75 chose to use their old trim color rather than the new dark brown trim? If this is wrong, please explain in more detail what is the situation. Thanks.

AllisonD (Florida)
Posts: 449

Posted:

Recently a resident of our community received a warning letter that they must paint their houses trim in accordance with the approved color chart. (it has been dark brown for approximately 3 years.)

Sorry for the multiple messages: What has been dark brown for 3 years, the trim or the approved color chart?

MarkM31 (Washington)
Posts: 556

Posted:

Quote:

Posted By GenoS on 06/12/2015 12:10 PM
If people had to be 100% certain before saying anything the internet would be a pretty boring place

I think it would be empty.

Oh well, so long Rick

SheliaH (Indiana)
Posts: 6,964

Posted:

You didn’t say if you were the resident - you probably are because lots of people come to this site with a SWIM type question (SWIM = someone who isn’t me), but what’s wrong with just repainting the trim? It would be faster and perhaps cost less than incurring legal expenses. If you or the SWIM go this route, check with the Board to ensure you’re using the right color – and get it in writing this time.

Did you go through your CCRs to see what they said about the issue (make sure you have an updated one – if not; ask for it, as it may have the answer you’re looking for). It may also be in the paperwork you got with the house if you’re the latest owner (sometimes the previous owner shoves things in among the warranties and what not you get at closing). Did you talk to some of your neighbors (the ones with the dark brown paint trim) to see if they also got the same letter? Did some or all of you go to the Board, tell them what the property manager told you and ask for clarification (maybe there’s something in previous Board meeting minutes?) If not, consider doing so – there’s strength in numbers.

As for Rick’s comments about Florida state law vs. other states – it’s true that Florida may have different law than California/Indiana and so on, and I don’t disagree with what you said regarding the change in colors, but part of the reason this site exists is so people can exchange information on what works/didn’t work in their community. It’s not always about what a law says or doesn’t say and/or if Tennessee has the same law as Colorado. Sometimes it’s a matter of applying common sense or at least taking a deep breath and thinking things through before lawyering up. Sometimes, people find that other states may have legislation they can take to their own representatives to consider adapting.

In the meantime, people do need to remember the majority of people on this website aren’t lawyers – if they really want to know what their options are, they’ll going to have to pony up a consultation fee for a lawyer and ask. They might be able to get a referral from the local bar association as well as check if there’s some sort of legal aid society to assist them if money’s an issue.

John’s comments isn’t necessary wrong either, although I don’t see that things have deteriorated to where receivership is needed. In fact, there is a Florida Condo ombudsman - Division of Florida Condominiums, Timeshares, and Mobile Homes, 1940 North Monroe Street, Tallahassee, FL 32399. Here’s a link to its website: http://www.myfloridalicense.com/dbpr/lsc/LSCMHCondominiumOmbudsman.html

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

PitA
Posts: 311

Posted:

ps. There 'may' be an ombudsman office in effect in FL - not sure