Penalty For Violating CC&R's

Is this the first time anyone has ever refused to cooperate with the CC&Rs? If so, that is an awesome track record!

Do you have an attorney that you use for any HOA business at all?

If so, I would recommend having the attorney draft a "please comply" letter to the resident, again pointing to the CC&R that she is violating and then suggesting that if compliance is not made within XXX days, that he will have no choice but to file legal action on behalf of the association to enforce the governing documents. "As we prefer not to spend association funds in such a manner, your cooperation would be greatly appreciated. However, if compliance is not made voluntarily, we would have no choice but to begin legal action to enforce the Deed Conditions, Covenants and Restrictions."

Then, if she STILL doesn't comply, you have to make good on your threat. Chances are very high that once she receives the summons by the sheriff that she will contact an attorney who will encourage her to comply as CC&Rs are upheld in the majority of lawsuits brought forward.

The only fly in the ointment would be that if you have not in the past been consistent with your CC&R enforcement, a case COULD be made for selective enforcement. However, if you have enforced consistently, this should not be a problem. Even if you haven't always enforced, if you can show a pattern of consistent enforcement once a violation is reported, then you should have nothing to worry about.

MelissaP1............In the State of Florida you MAY NOT enter a persons property and TOW a vehicle UNLESS you have a court order signed by a Judge...No tow company in their right mind would dare to enter and attempt to illegally tow a $300,000.00 Rv and be held responsible for any damages.We have RV'S parked on owners property in violation of our CC& R's and the violators are paying a fine of $5.00 per day till the matter is resolved thru mediation with DPBR....The big problem is that our BOD allowed these violations to exist for over 13 years and now because more people are moving into our subdivision they are trying to enforce the deeds...........BUT the courts will not look favorably on our BOD in light of the fact that for 13 years it was never a problem and now it is ???? And our lots are 3 acres in size not a standard lot where the RV is the focal point of the property.... We are located deep in the country with a gazillion trees on the property and YES I know the DEEDS say no RV unless enclosed BUT the fact they have allowed these to exist for all these years is of no consequence to MOST of us here...seems to bother the snooty people who have nothing else better to do with their time.....I am sticking up for the RV people as the 2 violators are my neighbors and I would rather look at a RV that can be moved than a 16 ft high 40 x 44 building that blocks my sunset views......Have a great weekend..........LindaC

I agree with the entering the property for towing purposes. Our county attorney's office said that in spite of CC&Rs that say we can, we cannot without a court order.

Having said that, it's unfortunate, Linda, that previous boards over the past 13 years did not do anything about the RVs. However, that does not mean that a board cannot pick up its enforcement and resuscitate its CC&Rs. You're right that it may be a tough row to hoe for them, but if done correctly, they could well prevail.

I'm also sorry you feel it's simply a bunch of snooty people pushing the issue who have nothing better to do with their time. I roll my eyes every time here this chestnut.

Unfortunately the supposed "petty" items that people pursue are not actually about the specific infraction itself, but really about the bigger picture. Do I really care what color someone's mailbox is? Do I really care if someone puts awnings on the sunny side of their home? Do I really care that a trailer has to be stored in a garage and not behind someone's house or fence where we really can't see it anyway?

Not really. I don't really personally care about any of those particular things, nor probably about a slew of other "petty" items in the CC&Rs. But if we want the right and ability to enforce the more egregious issues, we must also enforce the ones that we personally may find "petty."

If you and several of your neighbors feel the same way about the RVs, that, given your location, the sizes of your lots, the ability to somewhat make the giant metal, and sometimes very colorful, boxes "disappear," then the appropriate thing to do would be to get the CC&Rs changed to allow RV storage/parking without the "screen" that apparently currently exists in your CC&Rs.

Best of luck. Hope this all works out without hard feelings anywhere.

JimR4, Florida Statute 720.305 says:

720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights; failure to fill sufficient number of vacancies on board of directors to constitute a quorum; appointment of receiver upon petition of any member.--

(1) Each member and the member's tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against:

(a) The association;

(b) A member;

(c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and

(d) Any tenants, guests, or invitees occupying a parcel or using the common areas.

The prevailing party in any such litigation is entitled to recover reasonable attorney's fees and costs. This section does not deprive any person of any other available right or remedy.

(2) If the governing documents so provide, an association may suspend, for a reasonable period of time, the rights of a member or a member's tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine shall not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney's fees and costs from the nonprevailing party as determined by the court.

(a) A fine or suspension may not be imposed without notice of at least 14 days to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed.

(b) The requirements of this subsection do not apply to the imposition of suspensions or fines upon any member because of the failure of the member to pay assessments or other charges when due if such action is authorized by the governing documents.

(c) Suspension of common-area-use rights shall not impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park.

(3) If the governing documents so provide, an association may suspend the voting rights of a member for the nonpayment of regular annual assessments that are delinquent in excess of 90 days.

(4) If an association fails to fill vacancies on the board of directors sufficient to constitute a quorum in accordance with the bylaws, any member may apply to the circuit court that has jurisdiction over the community served by the association for the appointment of a receiver to manage the affairs of the association. At least 30 days before applying to the circuit court, the member shall mail to the association, by certified or registered mail, and post, in a conspicuous place on the property of the community served by the association, a notice describing the intended action, giving the association 30 days to fill the vacancies. If during such time the association fails to fill a sufficient number of vacancies so that a quorum can be assembled, the member may proceed with the petition. If a receiver is appointed, the homeowners' association shall be responsible for the salary of the receiver, court costs, attorney's fees, and all other expenses of the receivership. The receiver has all the powers and duties of a duly constituted board of directors and shall serve until the association fills a sufficient number of vacancies on the board so that a quorum can be assembled.

That Florida Statute requires homeowners to comply with their governing documents. Read part (2) carefully. Several Associations which do not have the ability to fine specifically in their governing documents (very few if you read closely) have taken it to mean that the Statute grants the Association that power. Notice it only mentions the governing documents for the suspension of rights for the common areas and voting. It does not specifically require governing documents to be able to vote and so some have used that as the basis for their fine schedule.

Specifically, this is to MicheleD and for others in the loop. Michele,
yes we do have attorneys that represent the Board and the Association. In
reviewing the responses to my orginal Blog, I noticed I did not clarify the attorney question. I will say that in my experience with attorneys
I have become poignantly aware that the meter cycles rapidly, but also
that they can be a necessary evil or in the PC version, necessary resource. Chow!

JeffreyB, thank you for your input and comments. In our case, I feel we are well within a
reasonable time frame to address the issue. Hopefully, when the Board's options to effect compliance with our CC&R's are outlined for the resident, she will reconsider her refusal
and the issue will be resolved amiably.