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GreggK2 (Kansas)
Posts: 86
Posted:
Second issue...we had an outside management company handle many of our affairs because the former board members didn't want to confront home owners directly. In some cases, home owners just did whatever they wanted to do and other than a letter from the management company, no enforcement was followed through so if someone wanted to paint their house without permission, they did it without consequences. Want a shed in your backyard even though it is against the declarations? Some did. But not that we got rid of that management company, we are trying to go back to enforcement. Now, in no way am I trying to burn home owners for things they already did. However, I've had a few come forward with the "Well they did so why can't we?" argument. Our declarations say you cannot build a shed in your backyard. Some want to do it because 2 other home owners did without permission and got away with it. We've considered trying to grandfather in those who jusst did what they wanted but I am getting some static from the ones who want to do what others did even though it is against the declaration.

What argument would you make for not allowing some to do what they want when others already did? Or...can someone say that the board is not fairly enforcing the rules, something Ihave heard can get a board sued by home owners?
AnnH5 (Florida)
Posts: 304
Posted:
You have acknowledged that those owners violated the restrictions. I personally do not feel that grandfathering is a good way to manage violations. Why not put it up to a vote to amend the restrictions? If the amendment doesn't pass, then enforce the restrictions. I think it is about being fair to the entire community as a whole. Boards should be in place to represent everyone and not a select few. As a member of a HOA, I purchased my property with the understanding of what is permissible. It would greatly displease me if the owners around me where to do as they please but I could not do the same things o my own property.
TimB4 (Tennessee)
Posts: 21,059
Posted:
The Association must enforce the covenants, rules, regulations and utilize the architectural guidelines equally.

The Board can't grandfather existing violations. They can grandfather those who would be in violation of a new covenant/rule (which is done by including grandfathering language in the rule when it is adopted) but not one that already exists.

The Board also can't authorize waivers to the CC&Rs (unless that document specifically grants such authority to the board).

The Board can either enforce the CC&Rs, rules, regs, etc. or chose not to enforce at this time (hoping to change the rule).

I also think that you may be trying to do too much too soon. You mentioned that you want to amend the CC&Rs. That, for us, would be a two or three year project to make sure that we have the support and proxies needed.

Now you are saying that you want to boost enforcement.

My suggestion is to initially do one or the other. My suggestion is to physically walk around the development and identify how many have sheds. Then change the covenant if needed and adopt a guideline to the size, style and color of sheds based on what is already in place. We took a year to identify every violation on every lot, correlate the violations and then suggested changes to the architectural guidelines and CC&Rs based on those inspections.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By GreggK2 on 07/05/2015 10:35 AM
What argument would you make for not allowing some to do what they want when others already did?


I would offer up the following:

"Neither the association, its board, employees, nor the management company have the authority to allow construction of improvements prohibited by the CC&R's. The current board is aware of a few structures erected in the past in violation of the CC&R's. The board has the lawful discretion to choose not to pursue action against those existing violations due to the cost of litigation and the uncertainty of prevailing due to the statute of limitations and/or doctrine of laches. The board reminds those who disagree with this decision that they have the right to seek enforcement through civil action at their own expense.

"The board's decision to take no action against past violations is not a waiver of its right to enforce the covenants as written. Any member who knowingly violates the CC&R's does so at his own peril."

Quote:

Or...can someone say that the board is not fairly enforcing the rules, something I have heard can get a board sued by home owners?


Anyone can say that and anyone can sue. You cannot stop either from happening. I am unaware of any lawsuits where a member successfully claimed he was entitled to violate the covenants because someone else got away with doing so.

As another posted suggested, why not see if the members wish to amend the CC&R's to allow sheds and other offending structures?
NpS (Pennsylvania)
Posts: 4,216
Posted:
Hi Gregg

You are being asked to defend/repair the actions/inactions of prior boards.

The first question you should be asking yourselves is whether this is a matter of urgency. IMO, sheds and paint don't belong on the top of a new board's priority list. Communications should be your number one priority. There's a new attitude of a new board that needs to be conveyed to the HOs - you need to set your own agenda and communicate it to all.

My recommendation re the sheds is to announce a 6-month moratorium on all shed requests. Form a task force (or whatever you want to call it) to evaluate and make a recommendation to the board on what path to pursue. Give the group parameters and let them come up with a recommendation.

The first thing you will learn is how many HOs care about the issue. Right now all you have is a few people asking "why not" when you don't even know how large the issue is.

Until you size the issue, you just don't know how much of your time it should take up.

Personally, I am not a fan of demanding retroactive compliance. I also think that grandfathering can be tailored to suit the circumstance. It can be forever, or until the house is sold, or for 24 months - or whatever arrangement suits the community. I would even put this question to the task force and ask them to make a recommendation.

Personal story - when I first got on the board, I was amazed at how many people approached me with complaints about what prior boards did wrong. For some, it was just a matter of being listened to. For others, it was trying once again to get something through that was previously denied. But in short order, that noise faded away - I realized fairly soon that we shouldn't get bogged down in the past - we had to start focusing on the future issues that prior boards were clueless about.

Rule #1 - Don't let the HOs set the agenda - That's the job of the Prez. No one can anticipate the future needs of your community better than your board members - That's the job.

Rule #2 - Don't assume that your HOs understand what you are thinking and doing. You'll announce a change today, and 2 years from now, someone will be saying they weren't notified. At least 1/3 of all HOs don't listen until the issue affects them directly.

Rule #3 - Build confidence. Do something that the majority of HOs can get behind and appreciate. Set an agenda that will truly benefit the community.

Sikubali jukumu. Read all posts at your own risk.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
"Neither the association, its board, employees, nor the management company have the authority to allow construction of improvements prohibited by the CC&R's. The current board is aware of a few structures erected in the past in violation of the CC&R's. The board has the lawful discretion to choose not to pursue action against those existing violations due to the cost of litigation and the uncertainty of prevailing due to the statute of limitations and/or doctrine of laches. The board reminds those who disagree with this decision that they have the right to seek enforcement through civil action at their own expense.

"The board's decision to take no action against past violations is not a waiver of its right to enforce the covenants as written. Any member who knowingly violates the CC&R's does so at his own peril."

I like he above suggestion. There is a new Sheriff in town folks.
GenoS (Florida)
Posts: 4,276
Posted:
Sounds like a tough spot to be in, Gregg, and I applaud your desire to do the right thing while looking for flexibility so that you don't come off as an unreasonable tyrant. Several people have offered good insights above. The only thing I'll add is your board seems to be in a position where you feel your hands are tied by the actions (or inaction) of a previous board. To what extent is it reaonsable to assert that a current board's hands are tied because at some point in the past there were years where, on occasion, the boards did the wrong thing? Should all boards going forward be forever handicapped by that? I don't think so.

How many sheds are there currently? What would the cost be to the association to demand the existing sheds be removed and then reimburse the owners (pro-rated, of course, you don't want to pay replacement value on a 10-year-old shed)? I suppose even that would be an improper use of association funds without some language in the governing documents to authorize such payments. On the other hand, the board that was lax on the sheds when they first went up were acting on behalf of the entire association, so you could argue it's now up to the entire association to bear the burden of a remedy to bring everyone back into compliance with the CCRs.

Good luck, we have 2 homeowners who put up solar hot water panels on their roofs 12 years ago which directly violates our CCRs. It's not an issue at the moment, but if a new owner came in and wanted to do the same we'd be in a quandary. Further complicating matters is both of the owners who put them up have moved on, leaving the burden of the cost of removal up to the new owners should a board decide to press the issue and demand compliance. For over 12 years no board here has had the desire to do that, but the day will come when a tough decsision will have to be made.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Geno

Part of this is what does one do if others put up or go after solar panels (or other things) based on some already have them?

That is the real issue.

PamM6 (Michigan)
Posts: 41
Posted:
It's a contract and both sides need to follow governing documents. My community is in the early stages of deterioration. Boards change and most do not enforce what they should. This HOA is a few decades old and right now still looks ok. I think HOA contracts are pretty much worthless unless a property needs to collect assessment fees after a home has been foreclosed on. Then if there's a mortgage, and the HOA is second in line, which it generally is, the board just isn't going to be able to recover much. A lot of huff and puff, but in reality they just can't blow the house down.
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By JohnC46 on 07/05/2015 6:11 PM
Geno

Part of this is what does one do if others put up or go after solar panels (or other things) based on some already have them?

That is the real issue.


Absolutely, that's why I said the board would be in a quandary if another owner wanted to do the same thing. How could we say no? The CCRs preclude us saying "yes", but then we'd be left with either trying to find a loophole/grandfather language to allow the existing ones to stay, or demand the existing ones be taken down. I would vote for the latter, but it would create hard feelings, no doubt, and that's what most of the directors here seek to avoid above all else. We would need to find an answer to "how do we say no" because that's the only appropriate answer, let the dominoes fall where they may.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Geno

So far the best real life approach has come from Larry in the form of a letter to all owners:

Neither the association, its board, employees, nor the management company have the authority to allow construction of improvements prohibited by the CC&R's. The current board is aware of a few structures erected in the past in violation of the CC&R's. The board has the lawful discretion to choose not to pursue action against those existing violations due to the cost of litigation and the uncertainty of prevailing due to the statute of limitations and/or doctrine of laches. The board reminds those who disagree with this decision that they have the right to seek enforcement through civil action at their own expense.

Even in the case of a BOD taking a firm stance and order something removed, how fair would that be after several owners? Right and fair are different issues. Not to play lawyer but, I believe if the BOD or fellow owner(s) pursued it after such a lapse in time/ownership changes, they would lose. I believe with the above letter and someone did something based on "others did it", the BOD would stand a fighting chance to get it removed.

BobD4 (up north)
Posts: 1,002
Posted:
A problem with that wording may be that the appropriate (state) law expressly legislates that the condo or other corporation bears an imposed duty to "obtain compliance using reasonable means" ( or variant). If so that would raise an obvious question about the Board claiming to legally have some discretion not to etc . . .
CyrstalB (Maryland)
Posts: 457
Posted:
Look further in the CCRs, there may be an article that says, just because others did so does not give permission for others.

Also, there may be another article that says homeowners within the HOA can, by court, force others to obey the covenants. So if I can't have my shed, and my board won't make the owner with who's had one for 20 years take his down, I can take them to court myself to enforce the covenant of no sheds.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Crystal

I am sure many BOD's would welcome an owner suing another owner on old issues as per the 20 year old shed and the old solar panels versus the BOD doing it.

I know if I felt strong enough about something I would attempt to rally others to my cause and if we could not get the BOD to take action, I would recommend we sue as owners.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By JohnC46 on 07/06/2015 6:23 AM
Crystal

I am sure many BOD's would welcome an owner suing another owner on old issues as per the 20 year old shed and the old solar panels versus the BOD doing it.

I know if I felt strong enough about something I would attempt to rally others to my cause and if we could not get the BOD to take action, I would recommend we sue as owners.

ADD ON

Does anyone know of a case such as above. BOD refuses to take action against an owner and and as a result, an owner sues a fellow owner?

LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By JohnC46 on 07/06/2015 6:26 AM
Does anyone know of a case such as above. BOD refuses to take action against an owner and and as a result, an owner sues a fellow owner?


I am unaware of any with that exact situation but there must be some out there.

I know of at least one where there are covenants but no association and an owner sued successfully to block the construction of a cell phone tower. (The cell phone tower was to be constructed at an existing church which itself was built in violation of the covenants but no one objected to the church.)

I also know of one Arizona case where an owner sued the association because the CC&R's mandated that the BOD pursue all violations without exception and the association failed to enforce a covenant against at least one owner.

GreggK2 (Kansas)
Posts: 86
Posted:
What I do enjoy about this web site is that I can get such a variety of answers. Some people are actually very helpful and a few others seem to think they need to put me on the witness stand and drill me with questions and accusations. Those are the ones who I think have way too much time on their hands and must be taking their HOA titles a little bit too seriously.

My goal is not to play cop or see if I can use my title to bust people in the subdivision. I am simply to keeps things fair and consistent. I do not want us to enforce a rule against someone when the previous board failed to enforce it against another. In a perfect world, we shouldn't have to enforce anything if everyone just took the tie to read the area declarations but since some have not, we are trying to educate them before making a small matter into a big one.
KerryL1 (California)
Posts: 14,550
Posted:
Here's a recent CA court case that relates to Gregg's topic. I think the last paragraph is a good one. It doesn't, though, help Gregg with the exiting sheds:

"Last month the court of appeals handed down an unpublished decision showing that associations can reestablish restrictions where previously there had been lax enforcement.

The CC&Rs of Villas in Whispering Palms restricts members to one dog per unit. Over the years, boards had granted variances so owners could have multiple dogs.

In 2003, the board decided it would no longer allow multiple dogs. It notified members that those who already had more than one dog would be grandfathered. However, once a dog died, it could not be replaced. From that point forward, pet restrictions were strictly enforced and disciplinary actions were taken against violators in 2008 and 2009 which resulted in four homeowners giving up one of their two dogs.

In 2011, Richard Tempkin bought a second dog. The Villas sent him violation letters and met with him in an attempt to resolve the matter. When that failed, fines were levied. Finally, the Villas had no choice but to sue Tempkin.

Tempkin defended by alleging (i) bad faith by the board, (ii) arbitrary and capricious enforcement, and (iii) lack of due process. The court deemed his arguments unpersuasive and ruled for the association. Tempkin appealed.

The court of appeals reviewed the case and found no merit in Tempkin's arguments. The court held that the board's enforcement of the dog restriction, despite years of granting variances, was reasonable and entitled to judicial deference. The court noted that once the board decided to strictly enforce the rule, it was done uniformly. (See Villas in Whispering Palms v. Tempkin.)"

See Davis-stirling.com, 7/5 online newsletter.

I seem to recall from Gregg's previous posts that there are other bigger issues in his HOA that IMO need immediate attention. This one probably isn't on the top of a priority list.

I like Larry's letter too, but I think just saying statutes of limitations is sufficient. While the "doctrine of laches" may be perfectly accurate, I don't think it needs to be in a letter to owners
CfD (Virginia)
Posts: 265
Posted:
While a board may not have the authority to allow construction of improvements prohibited by the CC&R's, if another homeowner subsequently builds / improves etc. in violation of whatever, and then the board decides to pursue the matter on the new owner through legal means, wouldn't this argument break down?

In other words, I don't think there is language in most governing documents that permits a board to pursue legal remedies against some owners while simultaneously looking the other way for other homeowners when their situations are identical or similar.

LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By CfD on 07/06/2015 11:29 AM
I don't think there is language in most governing documents that permits a board to pursue legal remedies against some owners while simultaneously looking the other way for other homeowners when their situations are identical or similar.


State law, either statutory or common law, may prevent the association from taking action against old violations. Technically, the violations are there but the time frame in which to act may have passed, allowing the violations to remain. This does not prevent a later board from taking action against violations that occur on their watch or within the time frame established by law.

As I noted above, those owners who feel that the board is not being diligent enough in its enforcement usually have the authority to seek redress through a civil action at their own expense.

AllisonD (Florida)
Posts: 449
Posted:
Quote:
Posted By GreggK2 on 07/06/2015 8:37 AM
What I do enjoy about this web site is that I can get such a variety of answers. Some people are actually very helpful and a few others seem to think they need to put me on the witness stand and drill me with questions and accusations. Those are the ones who I think have way too much time on their hands and must be taking their HOA titles a little bit too seriously.

My goal is not to play cop or see if I can use my title to bust people in the subdivision. I am simply to keeps things fair and consistent. I do not want us to enforce a rule against someone when the previous board failed to enforce it against another. In a perfect world, we shouldn't have to enforce anything if everyone just took the tie to read the area declarations but since some have not, we are trying to educate them before making a small matter into a big one.

As a board member you have no discretion when it comes to the rules. They are in place and you must make sure they are equally enforced. In my view it makes no difference what prior boards did. Now on your watch, violations exist and its your duty to address them. Unless there are written variances for the sheds (and if your docs allow variances), there should be no reason why you should allow these violations to continue. Selective enforcement is a dangerous game. If everyone wants sheds then amending your docs is the way to allow sheds. Until that happens, its not your decision to make, its only your duty to enforce.

You do not have to play cop or bust people. You can send out an informational flyer or include in your newsletter that there are a number of violations, including sheds, fences, pools (whatever the issues are) and the board will give residents 30 days to remove the violating structures and that the board has no discretion in this matter.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By NpS on 07/05/2015 2:01 PM
My recommendation re the sheds is to announce a 6-month moratorium on all shed requests. Form a task force (or whatever you want to call it) to evaluate and make a recommendation to the board on what path to pursue. Give the group parameters and let them come up with a recommendation.

The first thing you will learn is how many HOs care about the issue. Right now all you have is a few people asking "why not" when you don't even know how large the issue is.

Until you size the issue, you just don't know how much of your time it should take up.

It's surprising to me how many posters are focused on enforcement. The first question ought to be: How big is the problem? As I understand it, this is a new board who just got rid of a do-nothing board. I can't believe that this is the biggest problem you've got.

Sikubali jukumu. Read all posts at your own risk.
GreggK2 (Kansas)
Posts: 86
Posted:
And now this just happened. Last week, the neighbors who live directly behind me had a guy working on their deck. At first it looked as though he was just doing some repairs but then we began to see an overhead roof being built. I spoke to another board member, Even though they did NOT put in an arc request, I stopped over and told the contractor that i they submit one now we will approve it so we'd have it on file. But we just saw the guy laying the roofing shingles...they are black, which is against the CC&R's. No choice here...I had to go over and tell the contractor that he had done it wrong, should him the CC&R's and explained that had the owners put the arc form is as they were supposed to have, he wouldn't have to replace the shingles. I've tried twice to speak to the owner but they haven't been home. And the contractor also said they did not get a city permit for the work. If people want to test this "new board" they are going to run into some expensive surprises.
AllisonD (Florida)
Posts: 449
Posted:
Quote:
Posted By NpS on 07/06/2015 12:32 PM
Posted By NpS on 07/05/2015 2:01 PM
My recommendation re the sheds is to announce a 6-month moratorium on all shed requests. Form a task force (or whatever you want to call it) to evaluate and make a recommendation to the board on what path to pursue. Give the group parameters and let them come up with a recommendation.

The first thing you will learn is how many HOs care about the issue. Right now all you have is a few people asking "why not" when you don't even know how large the issue is.

Until you size the issue, you just don't know how much of your time it should take up.

It's surprising to me how many posters are focused on enforcement. The first question ought to be: How big is the problem? As I understand it, this is a new board who just got rid of a do-nothing board. I can't believe that this is the biggest problem you've got.

Enforcement is the issue, there is no other issue. Rules exist and must be enforced equally. During strategic planning sessions or board workshops you can discuss how widespread the problems are, what types of problems are most common, which homeowners are the most frequent violators, should the docs be amended etc. The original question is about a previous non-enforcing board and the violations that exist as a result, and how to resolve the situation knowing that allowing the violations to continue will result in homeowners accusing the board of selective enforcement.

Now what is happening is that other residents are doing whatever they want, without getting ARB approval and against current ARB policies. Its like dealing with a Kindergarten class; you have to get control of things from the start. Why should anyone care about the rules now when they have been ignored in the past? Use whatever redress you have in your association documents; write a stop work letter and hand deliver it (with a smile). Tell these folks they cannot do what they are doing, you have no ability to allow them to violate the rules. Stick to your guns. The longer you wait, the more difficult it will be.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By AllisonD on 07/06/2015 1:54 PM
Enforcement is the issue, there is no other issue.

Actually, there are three different issues now. 1. Sheds that went up under a prior board's watch; 2. Sheds that people want to go up under the current board's watch. 3. A roof that went up under the current board's watch.

I see no problem with cracking the whip on the roof issue. But as I said in my original post, I just don't see any urgency to bare your fangs on either of the shed issues. There is time to evaluate and assess. I have never heard of a shed crisis. In fact, the OP has been living there for 20 years without one.

As I said in my original post, the most important issue - even above and beyond enforcement - is communication.

Quote:
Posted By AllisonD on 07/06/2015 1:54 PM
Rules exist and must be enforced equally.

As I said previously, I am not a fan of retroactive enforcement. I recognize that this is a minority view here.

I do believe in equality in enforcement - but my interpretation is different. I think that any decision made today require equal enforcement. But I do not think that a new decision must comport with every old decision that was ever made.

Posted By AllisonD on 07/06/2015 1:54 PM
During strategic planning sessions or board workshops you can discuss how widespread the problems are, what types of problems are most common, which homeowners are the most frequent violators, should the docs be amended etc.

Agreed

Posted By AllisonD on 07/06/2015 1:54 PM
The original question is about a previous non-enforcing board and the violations that exist as a result, and how to resolve the situation knowing that allowing the violations to continue will result in homeowners accusing the board of selective enforcement.

Kerry cites to a case where the board can enforce where a prior board didn't. Larry states that on old matters, the time frame for enforcement may have passed. These are both good reasons for caution before taking action on the old stuff.

There is no selective enforcement here because this board has no intention of reaching a different conclusion on two new requests. They are trying to explain the laxity of a prior board, but that has nothing to do with selective enforcement.

Posted By AllisonD on 07/06/2015 1:54 PM
Now what is happening is that other residents are doing whatever they want, without getting ARB approval and against current ARB policies.

The sky is falling argument doesn't cut it with me. There are 3 distinct issues that should each be considered in its own right.

Posted By AllisonD on 07/06/2015 1:54 PM
Its like dealing with a Kindergarten class; you have to get control of things from the start. Why should anyone care about the rules now when they have been ignored in the past? Use whatever redress you have in your association documents; write a stop work letter and hand deliver it (with a smile). Tell these folks they cannot do what they are doing, you have no ability to allow them to violate the rules. Stick to your guns. The longer you wait, the more difficult it will be.

IMO, if you admonish your neighbors as if they are kindergarden kids, you are digging a deeper hole for yourself. I am not saying that you don't have the right to go after them with guns blazing (of course "with a smile"). I'm saying a new board has to earn the respect of the community to be effective. I just don't think that going after old violations is a smart place to start for a new board. I think you can lose more respect than you will gain. But that's just my opinion.

Sikubali jukumu. Read all posts at your own risk.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Just chuckling over the hard-line stance regarding sheds and a roof.

The same question keeps coming up in my mind: Who gives a damn? I look around my neighborhood and see sheds in every yard, including my own. I see roofs in many colors. But here is the kicker: I was up early today and the sun rose in the east! How is that possible? Sheds and multi-colored roofs should have caused a rift in the temporal space-time continuum, according to the hard-liners. The earth should have spun off its axis if what they say is true.

Those of us who live in the real world do not care about other people's sheds, fences, roofs, or garbage cans. We have enough real things to worry about without going on the hunt for violations of arbitrary rules.

Part of my chuckle is arises from the hard-liners' insistence that they are maintaining property values by harassing their neighbors over enforcing rules. How much does your property value rise when the seller is required to disclose that his association is involved in one lawsuit over a shed and in another over the color of roof shingles? This forum has had a lot of discussion about the Olde Belhaven HOA in Virginia, where trying to enforce arbitrary rules plunged the association into bankruptcy. Just how much did that increase the value of their homes?

Grow up, people.
AllisonD (Florida)
Posts: 449
Posted:
Quote:
Posted By LarryB13 on 07/06/2015 5:05 PM
Just chuckling over the hard-line stance regarding sheds and a roof.

The same question keeps coming up in my mind: Who gives a damn? I look around my neighborhood and see sheds in every yard, including my own. I see roofs in many colors. But here is the kicker: I was up early today and the sun rose in the east! How is that possible? Sheds and multi-colored roofs should have caused a rift in the temporal space-time continuum, according to the hard-liners. The earth should have spun off its axis if what they say is true.

Those of us who live in the real world do not care about other people's sheds, fences, roofs, or garbage cans. We have enough real things to worry about without going on the hunt for violations of arbitrary rules.

Part of my chuckle is arises from the hard-liners' insistence that they are maintaining property values by harassing their neighbors over enforcing rules. How much does your property value rise when the seller is required to disclose that his association is involved in one lawsuit over a shed and in another over the color of roof shingles? This forum has had a lot of discussion about the Olde Belhaven HOA in Virginia, where trying to enforce arbitrary rules plunged the association into bankruptcy. Just how much did that increase the value of their homes?

Grow up, people.

Here in Florida a shed can become a projectile during a hurricane. It does not matter if anyone thinks the rules are silly or inconsequential. They are the rules of that particular association and the folks that purchased homes there did so knowing the rules. There are ways to amend the rules if the majority wish to do so. The main job of the board besides overseeing the daily operation of the association is to maintain or increase property values. When rules go by the wayside, property values suffer. Whether its a shed or a roof or a fence, its a violation of the rules that must be dealt with. And a new board trying to overcome the reputation of the previous board must make sure that the residents know it is not going to be business as usual. There are ways to deal with things in a friendly neighborly but firm manner without having to resort to law suits. I do not think of myself as a hard-liner but I take my job on the board seriously and I respect the rules we all must live by. Who am I to give anyone permission to violate a rule? Does the next door neighbor having to look at the shed have rights as well?
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By LarryB13 on 07/06/2015 5:05 PM
Just chuckling over the hard-line stance regarding sheds and a roof.

The same question keeps coming up in my mind: Who gives a damn?

Well, the people who wrote the CCRs and every homeowner since that agreed to abide by the same restrictions. You either believe in contract rights or you don't.
SheliaH (Indiana)
Posts: 6,964
Posted:
Quote:
Posted By LarryB13 on 07/06/2015 5:05 PM
Just chuckling over the hard-line stance regarding sheds and a roof.

The same question keeps coming up in my mind: Who gives a damn? I look around my neighborhood and see sheds in every yard, including my own. I see roofs in many colors. But here is the kicker: I was up early today and the sun rose in the east! How is that possible? Sheds and multi-colored roofs should have caused a rift in the temporal space-time continuum, according to the hard-liners. The earth should have spun off its axis if what they say is true.

Those of us who live in the real world do not care about other people's sheds, fences, roofs, or garbage cans. We have enough real things to worry about without going on the hunt for violations of arbitrary rules.

Part of my chuckle is arises from the hard-liners' insistence that they are maintaining property values by harassing their neighbors over enforcing rules. How much does your property value rise when the seller is required to disclose that his association is involved in one lawsuit over a shed and in another over the color of roof shingles? This forum has had a lot of discussion about the Olde Belhaven HOA in Virginia, where trying to enforce arbitrary rules plunged the association into bankruptcy. Just how much did that increase the value of their homes?

Grow up, people.

You’d be singing a much different tune if a neighbor put in something YOU didn’t like and it was against the CCRs, but the Board did nothing……

I agree some boards do go a bit overboard with CCR enforcement, but as Allison and Geno have said (along with a few other people)– you moved into a HOA community and its rules aren’t like a cafeteria (pick the salad and dessert, but ignore everything else for whatever reason). At some point, the Board has to draw a line in the sand and grow a pair – either enforce the rules or let everyone do whatever. In that case, what’s the point of a HOA?

As to Gregg’s question, I would say “yes, you’re correct, the previous Boards didn’t enforce the rules consistently or at all and that’s why THIS Board is taking a different approach. As someone said to me recently, the “but Billy’s doing it too” argument didn’t work when you were a child and it’s not going to work now.”

In fact, this may be a good time to look at the CCRs and walk the neighborhood to see if anything else has been allowed to run amok. Pick the top two or three problems (like the sheds) and remind everyone of what the rules are and how the Board will approach this going forward. Brace yourselves for some pushback – a few years ago, one of the associates at our attorney’s firm (who specialized in this stuff) commented that when Boards first get serious about enforcement, they will hear a lot of “my two neighbors have it, why can’t I” and threaten to sue, complain about their Constitutional rights being violated and all that stuff, but if you enforce the rules fairly and consistently, people will come around. If they’re really pissed off, they can always vote you out – at least you tried and now it’ll be THEIR problem.

Having said that, at this point, those with sheds should be grandfathered in and everyone else should be told they can’t have one because that’s the way the CCRs are currently written. If they want to change them, the Board can charter a committee and THEY can do the work of walking around the community to see who has what, come up with some design standards (which could address safety issues, as Ann pointed out), draft the rules (the association attorney should review it first), poll the homeowners to see what they want and then encourage people to vote. Lett’s see how much people really want this when they see what will be required to change the rule.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
ND (PA)
Posts: 792
Posted:
I agree with most others. You cannot grandfather known violations. Sure it's the easy way, but definitely not the right way. Also, you don't want to go in with guns blazing and create a lot of upset. That will make your remaining time on the Board difficult, especially if you're looking to keep it positive and get things done.

Definitely start with communication to all homeowners. Introduce yourselves as the new Board (if not already done). Outline major initiatives, ideas, and plans. Don't get too carried away too early though.

Remind folks of the procedures for requesting approval for exterior improvements. Indicate the likelihood that you will be looking into improvements which exist but did not follow the process, but caveat that with an initiative to explore each of them and work with homeowners (both individually and collectively) to decide the proper and best paths forward.

I like the suggestion of forming a committee of homeowners to look into the issue of architectural review and unapproved improvements. Request participation in your communications to all owners. Ensure that some on the committee are ones that have unapproved improvements. The Board will still make the final decision, but a committee of homeowners will provide a different viewpoint and will increase the trust that others homeowners have in the outcome. It will also give the Board good perspective as to what the community wants versus what the documents may currently require.

You'll probably wind up with a few things: improvements which you will be able to allow/approve retroactively; improvements that are definite violations that cannot be allowed; and improvements for which you will want to change the documents so that they can be allowed.

Unfortunately there is no way to make everyone happy. But establishing a good process for considering past improvements that didn't follow procedures and reinforcing existing procedures for how things will happen in the future should appeal to the majority of homeowners. It's difficult/impossible to satisfy those few homeowners who never want to follow the rules and then get mad at you for calling them out. But it has to be done, otherwise you don't have a leg to stand on with enforcement of the other rules. It's the Board's job to enforce the documents. IMO, there is no prioritization of the rules such that certain ones can be ignored while others must be enforced.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By ND on 07/07/2015 6:36 AM
It's the Board's job to enforce the documents. IMO, there is no prioritization of the rules such that certain ones can be ignored while others must be enforced.

Our docs don't allow at-home businesses - We don't enforce that rule.
Our docs don't allow more than 2 pets - We don't enforce that rule.
Our docs don't allow trash cans outside - In our townhouse community, some houses don't have garages. We enforce the rule against homes that have garages but not against homes that don't have garages - unless a neighbor complains.
Our docs don't allow street parking during snow clearing - We enforce that rule without exception.
Our view is that rules shouldn't all carry the same weight. If there's a safety issue involved, we have informed the community that there is no lattitude - we enforce.
Not only do we prioritize, we let the community know what our priorities are.


Sikubali jukumu. Read all posts at your own risk.
ValK2 (Tennessee)
Posts: 65
Posted:
Quote:
Posted By TimB4 on 07/05/2015 11:09 AM

I also think that you may be trying to do too much too soon.

Our board took the "good old boy" approach for nearly a decade...perhaps longer. Now that the development is building out, it becomes apparent that the lax attitude over enforcement of very reasonable covenants has consequences.

On top of that, we are in an "independent" ( I got my rights) part of the country.

On balance, the community is generally desirable and people are respectful...but we deal with the un-mowed empty lot, the commercial vehicles in the driveway, the garbage cans visible to the street and the untrimmed shrubs and trees impeding the neighbors view (of a lake) sort of thing.

Given the tenor of many of the residents who have never lived in a strict HOA community (they have NO idea what a real HOA community is like in terms of compliances and enforcement) the Board has taken a slow but steady approach. Deal with an "issue" to completion, and then move on to the next one. NO attempts to change CCR's (yet) and less aggressive treatment of historical violations.

The result is a slow, but sure, renewal of the authority and respect for the HOA, the BOARD and the Covenants. It has not been divisive, and when people see their neighbor complying, they slowly but surely, fall into line.

I have to say that I am WAY more of a hawk, and would hold people's feet way more aggressively to the fire, but here in the genteel south such behavior is not typical. And to be honest, we still have a long way to go, but gradually the "he's okay; he'll do the right thing" mentality is being replaced with a more strict approach which is having the desired consequences.

We are about to deal with the "shrubs and trees which haven't been trimmed for a decade and impede views" issue, and that isn't going to make people happy; and it is going to be costly for the homeowners to replace trees that are 20-30 feet tall. We'll see how long "genteel" prevails....but so far, the slow steady approach has borne fruit for the entire community.

ND (PA)
Posts: 792
Posted:
Quote:
Posted By NpS on 07/07/2015 8:50 AM
Posted By ND on 07/07/2015 6:36 AM
It's the Board's job to enforce the documents. IMO, there is no prioritization of the rules such that certain ones can be ignored while others must be enforced.

Our docs don't allow at-home businesses - We don't enforce that rule.
Our docs don't allow more than 2 pets - We don't enforce that rule.
Our docs don't allow trash cans outside - In our townhouse community, some houses don't have garages. We enforce the rule against homes that have garages but not against homes that don't have garages - unless a neighbor complains.
Our docs don't allow street parking during snow clearing - We enforce that rule without exception.
Our view is that rules shouldn't all carry the same weight. If there's a safety issue involved, we have informed the community that there is no lattitude - we enforce.
Not only do we prioritize, we let the community know what our priorities are.


Perhaps my word choice "prioritization" wasn't the best . . . My view is that you can't have a set of established rules and then pick and choose which ones to enforce. Certainly some are more relevant or important at certain times than other rules. However, simply ignoring a rule is a slippery slope that I'd rather not be on. IMO it would be best to change the rule so it better fits the association and what the community wants rather than simply ignore it.

In your situation NpS, if the community wants more than 2 pets per home, then let them decide. But when a homeowner complains about their next door neighbor having 8 dogs, does that rule suddenly start becoming important and getting enforced? What about folks who have had 2 pets for many years? You can't suddenly in good conscience say they aren't allowed to have that pet anymore (or maybe you can). And you can't put off enforcing rules so a future Board can deal with it. All will result in the same situation as the OP.

Either enforce the rules or change them to fit what the community wants and needs.

NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By ND on 07/07/2015 9:35 AM
Posted By NpS on 07/07/2015 8:50 AM
Posted By ND on 07/07/2015 6:36 AM
It's the Board's job to enforce the documents. IMO, there is no prioritization of the rules such that certain ones can be ignored while others must be enforced.

Our docs don't allow at-home businesses - We don't enforce that rule.
Our docs don't allow more than 2 pets - We don't enforce that rule.
Our docs don't allow trash cans outside - In our townhouse community, some houses don't have garages. We enforce the rule against homes that have garages but not against homes that don't have garages - unless a neighbor complains.
Our docs don't allow street parking during snow clearing - We enforce that rule without exception.
Our view is that rules shouldn't all carry the same weight. If there's a safety issue involved, we have informed the community that there is no lattitude - we enforce.
Not only do we prioritize, we let the community know what our priorities are.


Perhaps my word choice "prioritization" wasn't the best . . . My view is that you can't have a set of established rules and then pick and choose which ones to enforce. Certainly some are more relevant or important at certain times than other rules. However, simply ignoring a rule is a slippery slope that I'd rather not be on. IMO it would be best to change the rule so it better fits the association and what the community wants rather than simply ignore it.

In your situation NpS, if the community wants more than 2 pets per home, then let them decide. But when a homeowner complains about their next door neighbor having 8 dogs, does that rule suddenly start becoming important and getting enforced? What about folks who have had 2 pets for many years? You can't suddenly in good conscience say they aren't allowed to have that pet anymore (or maybe you can). And you can't put off enforcing rules so a future Board can deal with it. All will result in the same situation as the OP.

Either enforce the rules or change them to fit what the community wants and needs.


A rewrite of our rules is probably in order. We've been talking about it for over a year. But we have limited time and it just isn't that important to us. Rather than do total rewrites, we update sections as issues arise that bring the old rules into question.

Our top priority is safety. If a board member sees an infraction, we take action. If the issue doesn't involve safety, we do not take action unless we receive a complaint.

We've never received a complaint about too many pets, so we haven't had to deal with the issue. If someone complained, we would notify the homeowner that we received a complaint.

We've tried to strike a balance between "live and let live" and "your neighber is entitled to certain expectations." Regardless of what the docs say, we need to be credible to our homeowners.

BTW, we know who our chronic complainers are. Mostly they want to tell us how we should tell others to live their lives. For them every infraction, except for their own violations, require strict enforcement. For example, we have an 8am rule for contractors beginning work. Everytime a contractor begins work before 8am near one HOs house, he calls me to let me know. He thinks that if he's going to be disturbed, he's going to make sure that I am too. He thinks that every thing that he doesn't like that goes on the community is the board's responsibility. I think that he's not the kind of person who should ever have bought in an HOA.

One of the things we always consider is "how widespread is the problem." We can't respond to every complaint as if it's a crisis - because we would wind up with one or two people controlling our agenda and eating up our time. We have a broader responsibility than being policemen getting called in to do dirty work for chronic crybabies.

Sikubali jukumu. Read all posts at your own risk.
ND (PA)
Posts: 792
Posted:
NpS, I suppose we will have to agree to disagree.

I can certainly appreciate the “live and let live” philosophy and I wish it were that simple; however, in due time I think it will come to bite you in the rear . . . perhaps not you personally, but a future Board based on the precedents set before and during your tenure. This is exactly the OP’s situation.

IMO, operating as you recommend is the exact definition of selective enforcement: acting arbitrarily by enforcing some covenants and knowingly not enforcing others; and enforcing the same covenant differently against different owners.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By ND on 07/07/2015 1:01 PM
NpS, I suppose we will have to agree to disagree.

I can certainly appreciate the “live and let live” philosophy and I wish it were that simple; however, in due time I think it will come to bite you in the rear . . . perhaps not you personally, but a future Board based on the precedents set before and during your tenure. This is exactly the OP’s situation.

Interesting ND. But I think you overly simplified what I said. I do not have a "live and let live" philosophy.

What I said was that we try to find a balance between "live and let live" and "your neighbor is entitled to certain expectations." That's a far cry from how you described it.

What we do works for us. We haven't sent out a threat letter (other than dues delinquencies) in over 2 years and our community is more compliant that it ever has in decades. Goodwill is at an all time high.

Quote:
Posted By ND on 07/07/2015 1:01 PM
IMO, operating as you recommend is the exact definition of selective enforcement: acting arbitrarily by enforcing some covenants and knowingly not enforcing others; and enforcing the same covenant differently against different owners.


Here we will have to disagree.

As far as I am concerned, selective enforcement means applying a set of rules differently to one person than to another. We don't do that. We apply the rules the same way to everyone. But we don't guarantee that we apply the rules the same way as every prior board.

Some didn't enforce anything. Others were accused of gestapo tactics. We don't want to be locked into either position.

In an earlier post, I said that our docs don't allow home businesses - a rule that we don't enforce. At least 20% of our homeowners run some kind of business activity from home. If we were to follow your thinking, we should send cease and desist letters to each of them today. Even if we would want to change the rule, it still exists today. So obviously we should put people on notice of their violations - at least that seems to be your view.

Or mayby the no home business issue is where the "live and let live" perspective and the "your neighbor is entitled to certain expectations" perspective are in alignment - No one is objecting to home businesses - And no one runs a retail business from home.


Sikubali jukumu. Read all posts at your own risk.
AllisonD (Florida)
Posts: 449
Posted:
Quote:
Posted By ND on 07/07/2015 1:01 PM
IMO, operating as you recommend is the exact definition of selective enforcement: acting arbitrarily by enforcing some covenants and knowingly not enforcing others; and enforcing the same covenant differently against different owners.


Here we will have to disagree.

As far as I am concerned, selective enforcement means applying a set of rules differently to one person than to another. We don't do that. We apply the rules the same way to everyone. But we don't guarantee that we apply the rules the same way as every prior board.

Some didn't enforce anything. Others were accused of gestapo tactics. We don't want to be locked into either position.

It does not matter if the violation was created 2 years ago or yesterday; if a violation exists on your watch, it is your obligation to act on it. And if you let it go, and another homeowner wants to do the same violation and you deny the request because it is occurring on your watch, then you are engaging in selective enforcement. Just because the prior board chose to do the wrong thing does not make it right that you continue the wrong thing. I think you know that this course of action is correct but your statement 'we don't want to be locked into either position' tells me that you think the only outcome will be the 'gestapo tactic' thing. Your logic that either you do not enforce anything or you enforce it with such aggressive vigor that you are seen as the gestapo is black and white and you are not considering the many possibilities that exist in-between.
GenoS (Florida)
Posts: 4,276
Posted:
Just to add my two cents' worth, we have a fairly broad catch-all clause in our CCRs that says,

"Any failure of the Board of Directors to enforce any of the restrictions, rights, reservations, limitations, agreements, covenants and conditions contained herein shall in no event be construed or held to be a waiver thereof, or acquiescence in, or consent to any continuing further or succeeding breach or violation thereof, and the Board of Directors shall, at any and all times, have the right to enforce these restrictions by injunction and/or damages against the party or parties violating these restrictions and shall be allowed to recover attorney's fees and costs from the person or persons in violation of these restrictions."

That was written over 25 years ago and I have my doubts about how it would hold up in court if push came to shove. It reads to me as if it's giving the board the authority to selectively enforce the CCRs according to whatever arbitrary standards it wants to use, and it can take do it on any timetable that suits its fancy.

Over the years courts have become increasingly hostile toward "selective enforcement". There's also the issue of statutes of limitations, as others pointed out above. Another item on my "if we re-do our documents" TODO list.
AllisonD (Florida)
Posts: 449
Posted:
Quote:
Posted By GenoS on 07/07/2015 3:58 PM
Just to add my two cents' worth, we have a fairly broad catch-all clause in our CCRs that says,

"Any failure of the Board of Directors to enforce any of the restrictions, rights, reservations, limitations, agreements, covenants and conditions contained herein shall in no event be construed or held to be a waiver thereof, or acquiescence in, or consent to any continuing further or succeeding breach or violation thereof, and the Board of Directors shall, at any and all times, have the right to enforce these restrictions by injunction and/or damages against the party or parties violating these restrictions and shall be allowed to recover attorney's fees and costs from the person or persons in violation of these restrictions."

That was written over 25 years ago and I have my doubts about how it would hold up in court if push came to shove. It reads to me as if it's giving the board the authority to selectively enforce the CCRs according to whatever arbitrary standards it wants to use, and it can take do it on any timetable that suits its fancy.

Over the years courts have become increasingly hostile toward "selective enforcement". There's also the issue of statutes of limitations, as others pointed out above. Another item on my "if we re-do our documents" TODO list.

Geno I think this means that although some boards may chose not to enforce the rules, it does not constitute a waiver and that any board in the future may act on the violations. Do you think it means something different?
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Allison

Geno said:

the Board of Directors shall, at any and all times, have the right to enforce these restrictions

I say the at any and all times does mean present or future BODs
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By AllisonD on 07/07/2015 4:36 PM
Geno I think this means that although some boards may chose not to enforce the rules, it does not constitute a waiver and that any board in the future may act on the violations. Do you think it means something different?

No, I agree with you. To me it seems like it would permit the board to allow John Doe to put up a 20' statue of Elvis on his lawn, but turn around and tell Richard Roo that he cannot put up his own 20' statue of Toby Keith for the simple reason that allowing the Elvis statue did not consitute a waiver and they retain the right to enforce against a succeeding breach of the covenants. It's almost explicitly condoning arbitrary behavior on the board's part, giving the board the power to do whatever they want, enforce or not enforce whatever they want, whenever they want, and to change their minds whenver they want on anything they want.

Boards do have a lot of power and I wouldn't necessarily want to change that, but I would like to see it defined in greater detail that makes it clear that the covenants the board deems fit to enforce (any board, at any time) must be enforced in a consistent manner. If the Toby Keith statue meets with disapproval, then the Elvis statue has to come down, too, even though the violation it constituted was overlooked in the past.
GenoS (Florida)
Posts: 4,276
Posted:
It's hard to explain and maybe I'm not doing a good job of expressing myself. I interpret that paragraph in our CCRs to say that just because a board chooses not to enforce certain covenant restrictions today does not preclude the board's right (any board at any time) to start enforcing them tomorrow (or next month, or next year, or 5 years from now). From what I'm reading in other comments here, if too much time goes by between 'today' and 'tomorrow' then the board will effectively lose its right to begin enforcing covenant restrictions at some point. I understand that, and that, in my opinion, is a weakness in the language of our CCRs.

From what I've learned in the last year, I think it's a board's duty to enforce all the covenants and restrictions. If some of them are outdated or no longer desirable then the CCRs should be amended, but that shouldn't absolve the board of its responsibility to enforce them as currently written. The paragraph I quoted from our CCRs seems to give the board the ability to say, "we don't feel like enforcing this right now, but we can change our minds any time we like in the future". It's a little too open-ended for my liking.
AllisonD (Florida)
Posts: 449
Posted:
Quote:
Posted By GenoS on 07/07/2015 6:46 PM
It's hard to explain and maybe I'm not doing a good job of expressing myself. I interpret that paragraph in our CCRs to say that just because a board chooses not to enforce certain covenant restrictions today does not preclude the board's right (any board at any time) to start enforcing them tomorrow (or next month, or next year, or 5 years from now). From what I'm reading in other comments here, if too much time goes by between 'today' and 'tomorrow' then the board will effectively lose its right to begin enforcing covenant restrictions at some point. I understand that, and that, in my opinion, is a weakness in the language of our CCRs.

From what I've learned in the last year, I think it's a board's duty to enforce all the covenants and restrictions. If some of them are outdated or no longer desirable then the CCRs should be amended, but that shouldn't absolve the board of its responsibility to enforce them as currently written. The paragraph I quoted from our CCRs seems to give the board the ability to say, "we don't feel like enforcing this right now, but we can change our minds any time we like in the future". It's a little too open-ended for my liking.

Interesting, I did not read this meaning but I understand your interpretation. You would think that if a board does not like sheds, that they would always deny sheds but they could approve sheds only for their friends and for no one else under this paragraph. I would say, however, that selective enforcement is not something that needs to be written into the documents so even if the rules allow the board to do so, it probably would not pass the muster in court. My opinion is that you never lose the right to enforce restrictions, but if the homeowner can prove the board knew about the violation and 10 years later the same board wanted to enforce that restriction, they might have a hard time getting that done. Maybe that is the difference- a new board has a clean slate, so to speak, and can enforce restrictions on old violations.
GenoS (Florida)
Posts: 4,276
Posted:
My thoughts are similar. You want a new board to be able to recover from the actions (or inaction) of an apathetic or incompetent board that has had the reins in their hands for a period of time. A new board should have the power to undo whatever "damage" has been done in the past. That's one of the key things almost everyone here advocates for: getting involved and taking over your board when things have gotten out of hand; to rescue your HOA from a rogue board or tyrant directors and officers. To the greatest extent possible and consistent with the law, I think all boards should be able to right the ship and correct whatever mistakes have happened in the past. The same goes for the OP's issue about the sheds.
PitA
Posts: 1,416
Posted:
Those of us who live in the real world do not care about other people's sheds, fences, roofs, or garbage cans. We have enough real things to worry about without going on the hunt for violations of arbitrary rules.




A HOPA community, on the other hand .....

NpS (Pennsylvania)
Posts: 4,216
Posted:
For PitA

https://www.youtube.com/watch?v=4VLyHXPaBvc

Sikubali jukumu. Read all posts at your own risk.
PitA
Posts: 1,416
Posted:
O ~ M ~ G

DIVERSITY

I LOVE IT

PitA
Posts: 1,416
Posted:
ps.

My HOPA neighbors despise me as I attempt to actually show signs of life.

Hopefully I will 'pass' before dementia sets in.

Albeit one could argue .........

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