Subject to Enforcement ?

Started by DanN3 • 8 replies • 880 views

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DanN3 (Florida)
Posts: 91

Posted:

Florida HOA Declaration amendments were properly voted on and passed by the voting interest about 12 years ago. They were recorded and distributed. Current board attorney tells the board that those amendments violated state law then and now. Board voted to not enforce them. However they were not expunged or removed from the public record.

1- Is it valid that a board can choose to not enforce properly adopted and recorded amendments if the board attorney says he thinks they are invalid ?

2- The statute of limitations regarding challenging the amendments in court has long passed. Can they still be expunged by other lawful means?

3- The nature of the amendments makes it virtually impossible for the membership to remove them by vote.

4- Is the decision to not enforce by the board only good for that board or are is that binding on all subsequent boards?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Many Covenants/Bylaws have sections that have been ruled illegal and/or superseded by new laws and the association has never taken the time money to modify such. There are some old Covenants that say homes can only be sold to white people and no people of color allowed. Try and enforce them and see what happens.

Unless you are willing to spend the time/money to remove such, I suggest you just follow the attorney's advice and ignore them.

AugustinD
Posts: 5,144

Posted:

1- Absolutely. Furthermore, if the (volunteer) Board chooses to disregard the advice of counsel and enforces the covenants, then it could be said to be breaching its fiduciary duty to follow the advice of experts.

2- Yes. The HOA can attempt to get enough votes from members to amend the Declaration so as to delete the prior amendments.

3- Oh well. If the amendments as they stand put the Association in jeopardy of some kind, have the present Board put out a statement that, on advice of counsel, it will not enforce these amendments.

4- The decision not to enforce is only good for the board refusing to enforce them.

I would keep in mind that if the amendments are egregiously unlawful, then other than the HOA looking bad for not getting the members to remove them, there is probably little harm.

If push comes to shove, and some members want the board to enforce these egregiously unlawful amendments, then I think a judge in a court would understand. Sometimes a board has to roll the dice on its attorney knowing what he or she is talking about.

By any chance do these amendments involve discrimination on the basis of race, religion, sex, disability or another legally protected class?

GeorgeR8 (Arizona)
Posts: 182

Posted:

We added a "Statement Of Resolution" to each of our documents since laws always change.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By DanN3 on 10/30/2017 10:33 AM
Florida HOA Declaration amendments were properly voted on and passed by the voting interest about 12 years ago. They were recorded and distributed. Current board attorney tells the board that those amendments violated state law then and now. Board voted to not enforce them. However they were not expunged or removed from the public record.

1- Is it valid that a board can choose to not enforce properly adopted and recorded amendments if the board attorney says he thinks they are invalid? YES ... State Statutes change ... A prime example is in past many HOA's did not allow flags; however, most states have passed laws which state the HOA must allow flags. In essence, if the State Statues notes that it does not matter (a.k.a. Verbiage such as nothwithstanding what is stated in CCR's) the State Law will supercede.

2- The statute of limitations regarding challenging the amendments in court has long passed. Can they still be expunged by other lawful means? You just need to ignore any items in CCR's which violate your State Statutes (they become "null and void"). In the future if or when you amend or update your CCR's you can make these changes if desired.

3- The nature of the amendments makes it virtually impossible for the membership to remove them by vote. You do not need to remove by vote if the State Statutes dictates not valid. Again, in future if update CCR's you can change and note to membership that this section is no longer valid due to State Statute XXX.

4- Is the decision to not enforce by the board only good for that board or are is that binding on all subsequent boards? It is valid until your State Statute dictates otherwise. Do you seriously believe a new board could supercede your STATE STATUTES?

DrC1 (South Carolina)
Posts: 18

Posted:

Quote:

Posted By JohnC46 on 10/30/2017 10:51 AM
Many Covenants/Bylaws have sections that have been ruled illegal and/or superseded by new laws and the association has never taken the time money to modify such. There are some old Covenants that say homes can only be sold to white people and no people of color allowed. Try and enforce them and see what happens.

Unless you are willing to spend the time/money to remove such, I suggest you just follow the attorney's advice and ignore them.

NO recorded law is law. Amend any section/title of the bylaws that need changed, updated or deleted.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By DrC1 on 11/02/2017 6:54 AM

NO recorded law is law True. Amend any section/title of the bylaws that need changed, updated or deleted. False ... The HOA is not required to amend their documents (unless so choose) ... instead they just need to follow the State Law which has potentially superceded that particular section of their CCR's as JohnC46 and others have noted..

GenoS (Florida)
Posts: 4,276

Posted:

Janet is right. We have a homeowner who wants to run for the board in January who insists that "the state will fine us" if we don't update our governing documents to elminiate obsolete provisions that conflict with new laws that have been passed since 1994. That is false, of course, but she has her fans who believe just about anything she says. It's tiresome having to tell everyone who regurgitates this claptrap that she is wrong. But she is wrong. We would like to amend our documents to get rid of the cruft, mainly to avoid confusion, but we are under no obligation to amend them. Federal and State law takes precedence and anything in our documents that's now at odds with the laws of the land is simply null and void.

DanN3 (Florida)
Posts: 91

Posted:

Quote:

Posted By AugustinD on 10/30/2017 10:54 AM
1- Absolutely. Furthermore, if the (volunteer) Board chooses to disregard the advice of counsel and enforces the covenants, then it could be said to be breaching its fiduciary duty to follow the advice of experts.

2- Yes. The HOA can attempt to get enough votes from members to amend the Declaration so as to delete the prior amendments.

3- Oh well. If the amendments as they stand put the Association in jeopardy of some kind, have the present Board put out a statement that, on advice of counsel, it will not enforce these amendments.

4- The decision not to enforce is only good for the board refusing to enforce them.

I would keep in mind that if the amendments are egregiously unlawful, then other than the HOA looking bad for not getting the members to remove them, there is probably little harm.

If push comes to shove, and some members want the board to enforce these egregiously unlawful amendments, then I think a judge in a court would understand. Sometimes a board has to roll the dice on its attorney knowing what he or she is talking about.

By any chance do these amendments involve discrimination on the basis of race, religion, sex, disability or another legally protected class?

As to 1: As to experts, when there is more than one, which one ?
2: Agree, but extremely difficult in this situation. One owner owns 67 units and the subject amendments benefits him. Cannot get 2/3 affirmative votes as needed to undue.
3 : Do not know if the amendments put the Association in jeopardy. One attorney says 'No' the other has no opinion. Present Board has not put out a statement that it will not enforce the subject amendments.
4: Experts talked to agree with your statement.

Amendments do not involve discrimination of any kind as you mention.

In Conclusion: Although the subject amendments may not put the Association in jeopardy, banks shy away from financing mortgages and government backed mortgages are thus not available i.e Fannie Mae, Freddie Mac, etc.

Thanks for taking the time to comment.

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