For the Purpose of Litigation

Can the recorded governing documents be used as the basis for successful litigation against an Association member, by another Association member, when that member is not in compliance and refuses to comply and the board does not want to enforce the governing Docs, in this regard ?

What kind of power of enforcement does the HOA have? Do they have a fining schedule? The non-compliance item is it something just you or many people find out of compliance? If it's just you, then it becomes a neighbor versus neighbor thing. If it's something happening on Common property, then it usually becomes the HOA issue.

Your case would bring the suit against the individual and not the HOA. You can then use that documentation to prove the right to enforce compliance. Otherwise, keep in mind that suing your HOA is suing yourself and your neighbors. A lawsuit many may not appreciate because it's a you/them issue.

Melissa,

Who is to enforce is silent. It is assumed or implied that the Association has the power to enforce. There is no fining schedule and there is no Fining Committee. It is not me and I have no idea how many people would have the same complaint. I did not think it mattered. What if it were both an individual and also a violation of the governing documents, is it still a neighbor against neighbor thing ? Do you think you have to have more than one party complaining in order for the board to handle that single complaint?

Let's say for argument's sake the issue is the allowance of sheds. A neighbor put a shed on their property, and the CCRs say they are not allowed, but over the years that rules has never been enforced. Now, not only is his neighbor not in compliance, but so are 20 others. Generally in 9 out of 10 instances, their CCRs will allow them to take action if the Association doesn't.

Problem is that the person would have to go after ALL the others, not use the one, as it would be disminitory. The others could counter sue the Association for allowing the problem to exist in the first place.

Melissa,

As an aside, you mentioned that suing the association is the same as suing yourself. I am thinking that you mean the one bringing suit would have to also pay their share, if a special assessment was imposed to cover litigation costs, if the association lost the case.

A couple years ago a colleague living in an HOA in Florida had his association sued by an owner where the owner claimed that the Association acted improperly in enforcing a section of the governing documents against him. The Association fined him and when the fine was not paid and the alleged violation continued the Association took him to court. He prevailed against the Association and the court ordered that the Association reimburse his legal fees. The Association decided to appeal the lower courts ruling. Appeals are very expensive. He won the appeal and the Association was ordered to again pay his these legal fees plus interest. It cost the Association a little over $500,000. The Association did a Special Assessment in order to pay the bill. So they came up with the amount owed by dividing that amount by the number of Association members. They also sent the Special Assessment to the prevailing party. The prevailing party refused to pay the Special Assessment. The Association took him to Small Claims court. He prevailed with the judge indicating that the prevailing party does not pay the Special Assessment, as that party won the case at all levels. The judge then ordered the Association to pay the Small Claims legal fees of the prevailing party. So the Special assessment had to be redone subtracting out one person. My colleague is just so thankful that the Association did not try to appeal the Small Claims decision. Yes...... the membership was very angry when they got the Special Assessment bill but not at the complaining party but at the board.

Just an interesting story to share.

Since YOU appear to be an expert;

why are you busting them ?

The answer is yes. Now as to if one should, is another question.

Not in Florida.

FS 720.305(1)...

"A member prevailing in an action between the association and the member under this section, in addition to recovering his or her reasonable attorney fees, may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation."

Augustin,

Yes. Does have a Declaration.

This is another example of the necessity of reading documents and not assuming. As Geno pointed out,

Q "Who is to enforce is silent"

A "If that is true you may have a problem. There have been cases in Florida where the governing documents do not grant the power to enforce to the association."

That is the case with my HOA, there is no authorization for a private HOA to enforce. (Boards of the past have balloted the issue twice and owners have said NO!)

Indeed, there was an owner to owner complaint in court and the judge's decision was there was no authority in the Declaration for Rules therefore, the owner's complaint based on later-adopted rules was not lawful and binding and were unenforceable. Our CCR's are a cartoon example of "the emperor has no clothes".

Additionally, my HOA no authority to fine. There is mention in RULES that the Association can cause cures of unkempt exterior property but, based on the above decision, the Association would be unlikely to prevail in a challenge and has no authority to place a lien.

HOA can only sue another homeowner for any damages or costs for owner damage to common property however, the owner can bring suit against any other homeowner for violation of covenants.

This brings up an interesting question: Florida has specific criteria for defining WHAT a homeowner association is statutorily subjecting it to the Homeowner Act FS720. *One of the three criteria that statutorily defines a homeowner association is that it must have enforcement authority.

Does an HOA who has only the right to file a complaint in court like any other person have enforcement authority? Does it meet the intended criteria of HOA enforcement authority? (There is currently a lawsuit against the HOA and State of Florida in appellate court posing this question.)

*The other criteria are 1- must be mandatory and 2-must have lien/foreclosure authority (which my HOA also does not have).

HOA is 3 subdivisions 1972, 4 & 5. There is NO MASTER HOA. The original scheme of Development was a campground of owner site parcels. There was an express prohibition for "permanent structures". The CCR's are recorded and the restrictions run with the land. Despite the prohibition, owners "roofed over" trailers and took up residence to get around the "permanent structure" prohibition. We have many, many "structures" with tailights!

The Rule that was the basis of the lawsuit was not in the CCR's. This was a slight 3" roof overhang encroachment onto an adjacent lot. The setbacks in the CCR's only addressed the GROUND--not aerial. The County pays no attention to aerial encroachments unless they interfere with utilities and says owners have to figure it out. The aerial encroachment did not interfere with the complaining owners' "use and enjoyment" and the lawsuit was retaliative. It is widely believed that the owner was acting as a proxy for the board, who had a long-standing grudge against the owner who was under 55 years old.

The Judge was correct, of course, both on the narrow and the broad application of the law. While it was acknowledged by the offending owner that his roof overhung 3" in the vertical plane, it was impossible to cure without moving the entire house 3 inches. The Judge refused to rule the owner to take any action--now or in the future--, while acknowledging the existence of the encroachment. The whiny Plaintiff, who technically prevailed in his complaint, did not get attorney fees awarded for his "win". The judge basically swatted that Plaintiff to go get a life.

But the incidental and broader ruling rocked the Board to its foundations because the Judge said there was no provision in the Declaration that owners were bound to any Rules and Regulations adopted! The authority of R & R were in CORPORATE documents--and those documents do not "run with the land" and bind owners.

The homeowner whose roof overhung his neighbors property now has a lawsuit on appeal against the HOA and State of Florida agency that approved a revitalization of covenants. The appeal is against the FL agency that approved the revitalization and against the HOA. The lawsuit alleges that the HOA is not a statutorily valid HOA and does not meet the requisite conditions of a FL HOA.

There is quite a contorted legal history in my HOA because it has developed in a way that is contrary to its original theme as a campground. It has evolved, over time, into a "retirement" community with "permanent structures" permitted by a county PUD change. So, even though the CCR's prohibit permanent structures, the County PUD permits permanent structures. At this time, many new doublewide manufactured homes are situated on parcels and the sales in the community range from the mid-teens to the mid-100K's. Most sales are CASH using a quitclaim deed and bypass County taxes, realtors and attorneys.

The CCR's simply do not relate to the reality of the current development which is now burdened with aged and very complex "resort-type" amenities. The HOA owns the roads and the wastewater plant. The CCR are useless, irrelevant and cause misunderstandings and exhorbitant legal expenses. Most original owners are dead or departed and the current (mainly Canadian) absentee owner-snowbirds are oblivious...

If that is all your covenants say, it appears that your association does not have fining authority.

Does your Declaration have Kaufman language?

Dan,

The short answer is yes.

In fact, anyone can bring legal action for violation against the owner for a violation of a deed restriction.