HOA not enforcing clear violations

Started by NoahA • 33 replies • 966 views

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NoahA (Florida)
Posts: 212

Posted:

I live in a 300 home community where dues is really cheap and not your typical HOA.

Usually HOA brings thoughts of "overboard" or "too controlling" we on the other hand have a HOA that refuses to enforce just about anything.

I found out this week the state does not get involved with home owners that have brick / block homes, but somehow find the time to regulate cdondemneutnem timeshares and mobile homes.
I have no idea why a trailer park would have the state using money to supervise and not brick/motor homes?

1. I was wondering what my options were. One example is the next street over has a man who has been brought up at 3 previous meetings for putting all his household trash including soiled toilet paper "as that man does not want anything but liquids going into his septic tank.

2. We have in our HOA rules that no livestock of any kind are allowed, but the former president told a new house owner could "have 3 hens", this was not at a meeting or voted on but just in person talking to the new people. This clearly does not make it "o.k". but the point is the new president that was never voted on that was passed the position at a officers meeting which blindsided the whole community as nobody was told this would occur. The new president is even worse than the last, as he will point blank ignore anything that he does not have any vested interest in pursing.

What can be done if the state will not help? We have more and more people going to meetings but they just keep saying "we can't enforce any rules, until we re-write the rules" which the reason he wants to do that is so he can allow rule breakers to be "Grandfathered in" as the very people that moved in with the chickens are now on the board as "officers".

This is disgusting and turning a nice residential zoned area into a stinky farm. Right next to the people with chickens , is another guy that has chickens and a rooster, in which the rooster is against the county rules as you have to be in AG zone area with 10+ Acres, the new president won't address that either.

This is disgusting and I have no idea what can be done. I've tried to get more people to go to the meeting and the new president just yells and trys to act psychically intimating to try to get people to not give him suggestions.

NoahA (Florida)
Posts: 212

Posted:

This is in Florida if that makes any difference.

NoahA (Florida)
Posts: 212

Posted:

This is in Florida if that makes any difference.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Whenever I hear "My HOA won't enforce violations"... I want to ask "How if you were tasked with the responsibility would you do it?". It's basically neighbor enforcing neighbor to act accordingly. So if you want to enforce these violations so badly, then get on the board and be the "enforcer". Otherwise, realize no one wants to be the "bad neighbor" enforcing rule violations unless it's their job to do so.

Former HOA President

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By NoahA on 03/04/2018 8:51 AM
I live in a 300 home community where dues is really cheap and not your typical HOA.

Usually HOA brings thoughts of "overboard" or "too controlling" we on the other hand have a HOA that refuses to enforce just about anything.

I found out this week the state does not get involved with home owners that have brick / block homes, but somehow find the time to regulate cdondemneutnem timeshares and mobile homes.
I have no idea why a trailer park would have the state using money to supervise and not brick/motor homes?

1. I was wondering what my options were. One example is the next street over has a man who has been brought up at 3 previous meetings for putting all his household trash including soiled toilet paper "as that man does not want anything but liquids going into his septic tank.

2. We have in our HOA rules that no livestock of any kind are allowed, but the former president told a new house owner could "have 3 hens", this was not at a meeting or voted on but just in person talking to the new people. This clearly does not make it "o.k". but the point is the new president that was never voted on that was passed the position at a officers meeting which blindsided the whole community as nobody was told this would occur. The new president is even worse than the last, as he will point blank ignore anything that he does not have any vested interest in pursing.

What can be done if the state will not help? We have more and more people going to meetings but they just keep saying "we can't enforce any rules, until we re-write the rules" which the reason he wants to do that is so he can allow rule breakers to be "Grandfathered in" as the very people that moved in with the chickens are now on the board as "officers".

This is disgusting and turning a nice residential zoned area into a stinky farm. Right next to the people with chickens , is another guy that has chickens and a rooster, in which the rooster is against the county rules as you have to be in AG zone area with 10+ Acres, the new president won't address that either.

This is disgusting and I have no idea what can be done. I've tried to get more people to go to the meeting and the new president just yells and trys to act psychically intimating to try to get people to not give him suggestions.

There is probably a remedy contained in your governing documents most of which have something like this in them:

Each owner of any lot shall have the right to enforce these restrictions or covenants at law or in equity against the persons violating or attempting to violate any parts thereof. In other words each member of the association has the right to enforce the deed restrictions even if the HOA refuses to do so. As for rewriting the "rules" or covenants, that is not an easy process as it probably requires a large percentage of the members of the association to agree in writing to such a change. Ours requires a 3/5ths affirmative vote of our 233 eligible votes.

ArtL1 (Florida)
Posts: 140

Posted:

There are multiple problems here. First, if your HOA has ignored clear and open violations for many years, if the HOA suddenly starts trying to enforce everything, a member can claim the HOA waived its right to enforce X by ignoring violations of X for Y years.

If the Y hasn't been long enough, there's still the question of how to enforce. The board can't just wave a magic wand of enforcement and cause members to comply. In FL, depending on how your restrictions were written, you likely have two remedies.

1) Levying fines for CC&R violations. Your Restrictions should lay out a procedure for what's required in order to do this, and FS 720 adds some stipulations...that your fining committee must be composed of at least 3 volunteers who can't be employees of the HOA, HOA's management company, current board members or HOA officers, or immediate family of any of the above. You still have the issue of how to collect fines if the member refuses to comply and refuses to pay.

2) File suit in county court seeking either a judgement (for unpaid fines or assessments and legal fees) and/or injunctive relief, which is basically a court ordering the member to do or not do certain things applicable to your restrictions. If they still refuse to comply, you can file a motion asking the court to find them in contempt, which can lead to fines (to the county) or jail time.

You still have the issue of "professional deadbeats". These are people with nothing to lose who are basically judgement-proof and/or serial bankruptcy filers. I'm dealing with one now, where various entities (HOA and lenders) have been trying to foreclose on a home on and off for the past 4 years. The owner(s) have filed for chapter 7 bankruptcy 5 times in 2 years, and again more recently last year. Each time, the bankruptcy is dismissed for failure to file papers, but the auto-stay granted by the bankruptcy filing cancels the foreclosure auction set by the county. i.e. They haven't actually gone bankrupt. They just keep starting the process and not completing it. I figure I'm going to know how to handle this sooner or later, but if anyone knows how to get the bankruptcy court to stop serial filers from abusing the bankruptcy court to stop foreclosure, I'd love to know.

NoahA (Florida)
Posts: 212

Posted:

Thanks for fast reply and I'll be getting all that paperwork if I do not already have it. I do have the HOA rules and their stamped by the county.

NoahA (Florida)
Posts: 212

Posted:

Thanks for tips . The HOA lawyer I talked to said that they could get ambitious as "driving past a cop 9 times without a ticket does not make the 10th one unenforceable", but your first sentence makes me think that this development was lazy so long, that their might be no hope for it after all.

ArtL1 (Florida)
Posts: 140

Posted:

AFAIK, there are ways to cure the issue of many years of non-enforcement. If you're already working with an HOA lawyer, they should be able to provide guidance.

AFAIK, the HOA can send a letter to all the members letting them know that they plan to start enforcing rules that have gone unenforced for many years. The catch is, (AFAIK, I'm not an attorney) some rules will still be unenforceable against some members. Something like requiring members to care for their lawns, mow, remove weeds, etc. would probably be enforceable for all. Something like a shed or other structure that's not permitted, unapproved house paint color, etc. that's already in place "because everyone else was doing it" and there was no enforcement for >=5 years would likely have to be grandfathered in for existing violations, but new violations would be subject to enforcement.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Noah

Just because violations were not enforced does not mean they are not enforceable. Give the violators a written notice they are in violation and if not corrected the BOD will take action. Use the speeding analogy when questioned.

NoahA (Florida)
Posts: 212

Posted:

The specific rules that are not being enforced are:

RV in drive way hooked up to water and electric 365 days a year, with 5 cars on the lawn and 1 rv in the backyard being unused.

2. House that have roosters and / or hens. which the HOA has no livestock in it, and the county says no roosters on lots smaller than 10 acres which also have to be zoned AG.

there are other voiliatons but those 2 are the biggest ones that will make property values go down.

NoahA (Florida)
Posts: 212

Posted:

Also the new president when asked to address the RV living in the driveway sitation his answer was.

"Are we going to tell someone that has lived in this area for 30 years to NOW start following the rules"

I told him yes. He did not like that response.

The new president also said he was going to try to make a "Grandfather" clause to make it to where all violators will not have to comply with the rules, which shows the lack of education and understanding this troll has.

KerryL1 (California)
Posts: 14,550

Posted:

Good advice from many others, Noah. But why is the prez the one who will or will not enforce your covenants and rules? What's the rest of the Board doing??

Do you have a property manager who can help?

Can you round up several neighbors to go to open board meetings and demand the BOARD enforce the rules, etc.? In our and most Associations it IS the Board's job. Strat with the RV issue IF it's against your rules.

Is there anything in your documents that allows the Bard to remove certain common area privileges (if you have any worth removing

NoahA (Florida)
Posts: 212

Posted:

The rest of the board does not even know their responsibilities.

A new resident who is very "by the book" went to her first meeting and some of the officials liked the questions she asked and one board member asked her if she would want to join the board. She said well what are the responsibilities. Nobody was able to give any kind of description...which was odd as later on during the meeting 3 new board members were "Swearing on a oath they will uphold the duties that they DID NOT READ" as nobody has any to show them.

This outfit has been operating very "off the cuff" and have been doing so for a very long time. Even now nobody has gave her or me any kind of written responsibilities.
I forgot to also mention the other big issue going on is that one house is using a burn barrel to burn all their household trash including used/soiled toilet paper as the man "does not want to put any solids in his septic tank.

I tried to get the state to reprimand them, and from what I'm reading tonight it seems that a "volunteer" HOA that just files there minimum state corporation paperwork does not seem to have any implied expectations or rules to follow as there seems to be no governing force to make them do so.

I did not know til someone put on this forum tonight that any board member can enforce a rule, so I will be telling them that very soon.

Up til now they appear to have been letting the president do all the work and the rest just socializing and making votes here and there. Very unprofessional to say the least.

NoahA (Florida)
Posts: 212

Posted:

Also over 1/2 the board members do not want "outsiders" coming to their officer meetings. Some of them say "its nobodys business but officers", others say they don't like peopel that live here to comment at all.

It is very clear they don't read section 720 in the Florida statute. I can't imagine a HOA doing any good if they don't get useful input from the people paying the hoa dues.

They say that people should go to the ONCE a year meeting for a "open floor" discussion.

They also for 30 years have not allowed people that live here to go to meetings that only started 4 months ago. Once they put up signs saying "open to the public" they immediately started complaining about people showing up. Most the people that showed up were mad as tons of rules were being over looked, but they can't have it both ways.

I just wish the whole board would step down as some of them have been there for 7 or 8 years and even those members cannot point to a piece of paper that says "here are the officers duties" or here is the "Secretary" duties. It's all just a "we make stuff up as we go and hope it goes ok" kinda racket.

NoahA (Florida)
Posts: 212

Posted:

I don't know what common privilege areas means. I would guess that would be like guest building or something? If so there is none.

There should be a officers meeting in March, but they spring it on people that way nobody can plan to far ahead, which is why some people that would go to the meetings don't as they would want more than 2 weeks notice of which sometimes we don't even get that.

I'm just going to hope that turning up the heat makes those all to comfrotable to how it has been, just steps down. There are a few people that want to get on the board, but I even told those that getting on the board may just make them find that their is no "Real power" to begin with.

Seems a volunteer HOA has much less power than a mandatory HOA dues community.

BenA2 (Texas)
Posts: 1,273

Posted:

Every HOA is different and has different Covenants, Conditions, and Restrictions (CC&Rs) so it may be that yours are complicated. For example, ours say no livestock also but don't define livestock and the Texas agricultural code does not include chickens under livestock. They are poultry. Of course there are definitions of livestock that include chickens so people get upset when we tell them we cannot prohibit chickens. We also have no ability to fine. Our only enforcement, other than sending a letter, is suing in court, which can end up costing the association. I don't know your situation but it is not always as simple as enforcing what is perceived to be a violation.

I have to ask, do your CC&Rs really prohibit putting soiled toilet tissue in the trash?

NoahA (Florida)
Posts: 212

Posted:

The County has a rule that says you can have a burn barrel and the only thing you can burn in it is dead tree limbs and leafs as long as they do not produce white smoke.

The reason I explained what that guy was doing is he won't put anything in his toilet to flush, so he burns used toilet paper, the guy that lives next to him has been pleading with the HOA for 3 meetings now which is months long, to just fall on deaf ears.

I guess I'll have to ask to see if there is any more longer rules as the 6 page restrictions is what they just reprinted for everyone to have, as if to say "Were going to get serious for once".

I realize that its not as easy, but there is one guy that is on the architectural board that said the rules clearly said NO farm animals which include chickens ect. The problem is that the county has a rule that says you can have 10 chickens per 1 acre, which to me is total non-since for a residential area. I feel if people want to live on a farm then by all means move to a farm. But in this area the coyote problem is already bad enough without putting out coyote food to have them attracted to this area even more. Even the county forbids roosters on residential land, and even requires someone to have 10 acres or more in AG zoned areas. (I personally don't like roosters as they can be noisey if they do more than just crow in the morning).

ArtL1 (Florida)
Posts: 140

Posted:

That's pretty nasty that he's burning used TP.

Having just done/supervised this for a school science project, I'm curious, how does one burn dead leaves and not produce white smoke? Having just googled it, I guess the white smoke indicates the leaves were not sufficiently dried prior to burning.

Keeping chickens seems to be becoming more accepted in residential settings. I know there was some friction not far from here over a family with chickens in an HOA. I'm in a semi-rural setting (subdivisions on one side of the street, cow pastures on the other), and I can frequently hear roosters in the morning if I'm out at the right time. I assume their noise is why your county restricts where they can be kept. Nobody wants to be next door to someone else's rooster.

For the TP issue, your neighbor might have better luck complaining to the county about noxious fumes from the TP burner's property. They're in a much better position to enforce laws (if that violates any) than the HOA is.

KerryL1 (California)
Posts: 14,550

Posted:

You've mentioned "officers meetings," Noah. What are they? I've only heard of board meetings usually not all members of the board of directors are officers.

The section of all your documents that actually called Bylaws will tell you what the duties are of the officers.

Here's a thought. The new woman seems to know a lot about Associations, so maybe some of you can meet with her and ask her to help the rest of you understand your rights as homeowners in FL. What seems to work best is an organized group asking the Board at meetings to do their jobs.

Btw, what size is your Association?

KerryL1 (California)
Posts: 14,550

Posted:

NoahA (Florida)
Posts: 212

Posted:

the forestry said to only burn dead leafs, if you have a pile of fresh leafs they may have alot of moisture in them still hence the white smoke.

Even limbs are to be stored til there dead/dry so they don't make white smoke.

I'm not a expert at burning, but this is how the HOA around here has no vision. I already know there won't be a burn ban, but years ago the HOA took a vote to see if we wanted a burn ban and it was shot down to a 98% no vote.

The current present has all these wild ideas that have already been shot down, he wouldn't of got a vote as nobody knows or cared who he is, that is also why people around here are angry.

I emailed the guy that lives next to the "used toilet paper burning guy" saying he can have his wife write him up or whatever, but I have not got a response yet back from him, as I'm sure it was news to him that anyone on the board can make motions for disciplinarian action.

NoahA (Florida)
Posts: 212

Posted:

The new woman and I have been comparing notes, and she seems to be on target, but we feel outnumbered as the layout of this "board" is .

President
Vice President
board member 1
board member 2
board member 3
board member 4
secretary
Treasurer
Architectural Control Committee 1
Architectural Control Committee 2
Architectural Control Committee 3

That is alot of people that on the board to do a whole lot of nothing.

Also these officers meeting are for this group agove to meet to "discuss problems" with the neighborhood , talk about future planned events and more reasltially just socialize.

I also have been told that the only way to have a "closed meeting" is if a attorney is present to discuss a current situation that needs attention/action.

Which right now the HOA has no insurance OR lawyer.

So basically its a paper tiger.

ArtL1 (Florida)
Posts: 140

Posted:

Quote:

Posted By NoahA on 03/04/2018 6:28 PM
The new woman and I have been comparing notes, and she seems to be on target, but we feel outnumbered as the layout of this "board" is .

President
Vice President
board member 1
board member 2
board member 3
board member 4
secretary
Treasurer
Architectural Control Committee 1
Architectural Control Committee 2
Architectural Control Committee 3

That is alot of people that on the board to do a whole lot of nothing.

Also these officers meeting are for this group agove to meet to "discuss problems" with the neighborhood , talk about future planned events and more reasltially just socialize.

I also have been told that the only way to have a "closed meeting" is if a attorney is present to discuss a current situation that needs attention/action.

Which right now the HOA has no insurance OR lawyer.

So basically its a paper tiger.

Those ACC people are not part of the board. They're a committee, likely appointed by the board, likely just to offload member architectural change requests from the board.

Technically, the board is only the people who have been elected [or possibly appointed by the board to fill vacancies] as directors of the HOA. The officers (president, VP, secretary, treasurer) might or might not be members of the board. i.e. my HOA requires that the president and VP be members of the board of directors...so after a new board is elected, the directors have to agree on which directors are going to be president, VP, and then decide how to fill the remaining officer positions.

None of those groups are supposed to have closed door meetings. i.e. FS 720 requires that board meetings (and any committee meetings) be open to the members. The exception is when the board meets with the HOA attorney to discus litigation or personnel issues. Any meeting that includes a quorum of your board of directors discussing HOA business is a board meeting.

NoahA (Florida)
Posts: 212

Posted:

Well I'm glad I got a ton of factual great info today. I'm going to pass on this info to a few people that want to make this community in line to be legal , effective and run possibly for the first time correctly.

I find it funny that one of the newly elected "officers" is very mad that people are showing up to the meeting "not on the board" which by what was posted indicates he wouldn't be there either if non "board members" are not to show up.

I really wish these meetings were on youtube, you guys would just laugh or cringe depending on your view of what HOA's should be. It's like a bunch of people flailing in the dark to find a light switch.

BenA2 (Texas)
Posts: 1,273

Posted:

That does sound nasty but is there anything giving the HOA authority to enforce the county burn regulations? We get similar complaints on everything from improper burning to potholes and speeding on public streets. It's not that we don't care, it's just that we have no authority to control these things.

We had a similar situation with the chickens. Some board members said that they were not allowed but when someone got chickens we were forced to consider exactly what the restrictions said, which were unclear at best.

My point is that not all bad behavior can be controlled by the HOA. Some HOAs have well written governing documents that give them a lot of authority, but many do not.

JoniL (South Carolina)
Posts: 47

Posted:

Noah I thought we had it had till I heard you with your BOD situation. I have no solutions these others can help more.I do hope you can get things in order where you are. I know what it feels like to hit brick wall trying to make things right. I wish you well.

KerryL1 (California)
Posts: 14,550

Posted:

Noah wrote: "...one of the newly elected "officers" is very mad that people are showing up to the meeting "not on the board" which by what was posted indicates he wouldn't be there either if non "board members" are not to show up."

I know this gets confusing. Usually officers ARE members of the board; they are directors. But many bylaws also state that non-directors might be selected by the board to be officers. If you will read you actual Bylaws, Noah, you learn what the case is in your HOA.

By the way, so what if this person gets mad!? In FL and many other states, by LAW, board meetings MUST be open to Owners, and there must be a period for Owners comments & questions.

NoahA (Florida)
Posts: 212

Posted:

I don't care if the board is mad or if people show up mad, usually people want to go to the meetings not to watch a show but to voice something there mad about.

I also know that a few of the board members are trying to figure out a way to limit people showing up to meets or greatly diminish their ability to interact. One even said they should be writing a letter and that way they can deal with it when they want to. I'm trying to find a lawyer that might be able to set them straight.

NoahA (Florida)
Posts: 212

Posted:

The way some of the rules are are very vague like.

NUISANCES, TRASH , ETC.
No noxious or offensive trade show be carried on upon any lot, nor shall anything be done theron which may be or become an annoyance or nuisance to the neighborhood.

That would basically be anything at all that could bother anyone.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By NoahA on 03/05/2018 3:11 PM
The way some of the rules are are very vague like.

NUISANCES, TRASH , ETC.
No noxious or offensive trade show be carried on upon any lot, nor shall anything be done theron which may be or become an annoyance or nuisance to the neighborhood.

That would basically be anything at all that could bother anyone.

This is where it would be helpful to know how your state courts have ruled on HOA cases. In some states, ambiguous language would make the restrictions unenforceable.

NoahA (Florida)
Posts: 212

Posted:

The only success I've heard about in a court case was a small claims court case to clear up something but that was probably 20 years ago.

I don't have any faith in the HOA after reading all these posts, and your only as good as the "top" and he's totally incompetent.

KerryL1 (California)
Posts: 14,550

Posted:

Your HOA is only as good as you acting together with like-minded neighbors to vote out the bad apples. Our HOA has done that and so have those of other posters here. Gett that experienced woman to join in with you--ask for her help.

forget about court s of any kinds until you've TRIED to work with other owners to kick the bums out.

NoahA (Florida)
Posts: 212

Posted:

Well since there is no power....unless its a county ordinance or a criminal act there does not seem to much ability , but well see how it goes. The woman should be going to the next meeting.

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