Can an ARC violation be pursued?

Started by MicheleB7 • 9 replies • 805 views

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MicheleB7 (Florida)
Posts: 24

Posted:

We are a 63 home HOA. All changes/additions to the exterior of a home or property need to be submitted to and approved by the ACC prior to work being done. We have found that owners have submitted and were approved for fences and then went and added items needing an approval but never submitted for one. We have pools, patios and sheds that are not approved and our management company says we can't do a thing because it's behind their fences. We are in the process of creating a fine schedule but if we can't go after someone who adds stuff behind a privacy fence, what do we do?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

This sounds more complicate than fining will solve.

Your management company is wrong ... unless your docs provide the basis for their statement.

On modifications over seven years old, you’ve probably lost the battle ...

Sounds like the processes have been ignored for years, by multiple board ... lots of blame to lay.

What actions are you taking?

You mention “we” ... are you on the Board? Do you have legal counsel? Is there agreement on the Board to act? Is there strong support in the community? Is your management company competent?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By MitchellD3 on 04/12/2020 9:34 AM
There is a lot you can do. You can make a big deal about people breaking rules about structures that are hid behind their fences and start with a long drawn out lawsuit that will only enrich the attorneys. If people made improvements and did not pull permits you could report them to the local municipality. In essence you can make life difficult, expensive, and hard for the violators and the association. Lots of these improvements may have passed a statute of limitations but that is for a lawyer to answer (more expense). Or you could leave it alone and let people live and here is why.

I believe that community associations have rules and that these rules should be obeyed. Yet, you had some owners ignoring the rules, and at the same time the management company and board sat on their hands. Although I am not a lawyer there is a concept called common law:This part of law is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law. In essence that means that if something was done against the rules and nobody acted that violation could be considered null and void because it was permitted for a long time. As a matter of fact you may get in front of a judge and he will rule not in law but in equity if you ask him to order a person to remove a ten year old pool. Then you will not only have your legal bills to pay but the prevailing attorney's bills to pay.

You asked what you can do, but the real question should have been, why did we not do something earlier. The choices are easy: Live and let live and if these ARC violations are not interfering with another owner's property rights get over it. Then you can have a board meeting and resolve that this has happened and from a certain point in time that ARC rules and regulations will be enforced. Send out this resolution to all the members and that should end it. Or you can open up an expensive can of worms and spend two years in court helping your attorney to pay for his new Tesla.

Sound advice.

MicheleB7 (Florida)
Posts: 24

Posted:

I am the president of a three-member BOD and have been since turnover from the developer in late 2017. Since the beginning of the development being built, there has always been strife in the neighborhood. The owners were upset that the builder sold the homes here and didn't really tell them what they were getting into. 3/4 of them stated they never received the CC&R's from the builder either before or after closing. This caused multiple problems and still is an issue for some. We have gotten past that. We were not happy with our original management company and changed to another last June. Seems we went from the frying pan into the fire with them. Most owners abide by the rules and do submit ARC requests. Others feel they can do what they want and not. As stated before, we had no fining committee or fine schedule and we are working on that, taking them to court is not worth the money spent. They got upset when we told them we had to start a reserve account as we never had one!

In our city, most items that need an ARC approval also need a permit from the city. If something was being constructed and didn't have a permit, we could report them to code enforcement. Now, code enforcement no longer has teeth. They state if they can't see the violation from the street, they can't do anything about it. This is what our management company feels too. Owners call and text me to tell me they think a neighbor did something that needed an ARC and others work so hard to make sure they meet the requirements for an ARC, we feel this is very unfair to not go after the folks not complying. We have an attorney and for the most part he is excellent, in this case, he's sided with the management company. Two owners reported that we needed to go to the county website and view the aerial photos of the properties in here (new pics from the county each January) and when we did, we see some of the additions others have told us about. We are at wit's end trying to do the right thing.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Mich

We are small patio homes with backyards surrounded by 6ft privacy fence. We do not care what one does behind the fence. We only get involved if something exceeds the height of the fence. Out of site, out of mind.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Michele,

If your Board is unwilling to go to court to enforce, then you may as well get accustomed to what is occurring, or move.

Without teeth (and, fining in Florida has no real teeth, as it requires court agreement of some form to actually collect), there is no enforcement.

MicheleB7 (Florida)
Posts: 24

Posted:

Our documents clearly state that all items need ARC forms, we, the BOD feel we are not protecting the other owners' rights by not going after these folks and t the management company isn't helping. Our attorney will get involved if necessary but his costs are $225 per hour whereas the management company is paid monthly to tend our business. We are looking at replacing them as soon as we can. These are new violations, less than three months old. Owners don't feel comfortable talking to the management company and will text or call those of us on the board with these issues. I thank you for your replies.

GenoS (Florida)
Posts: 4,276

Posted:

Do you have a board elected by the homeowners? In other words, in late 2017 the developer turned over control of the association to the homeowners? A good question might be, is the property manager the same one the developer was using right up until the end of 2017? If so, the property manager might be looking at how the developer wanted them to operate, versus how your CC&Rs say the association must operate. It might be time to get a new property manager and send the developer's hand-picked manager packing.

MicheleB7 (Florida)
Posts: 24

Posted:

Yes, we are an elected board. Yes, we had the developer's management company but we canned them last May and hired a small company that came highly recommended to us by multiple HOA's. We have a great neighborhood and as I said most owners submit forms and like that they live in an HOA. There are a few owners who have bucked the system right from the start and have actually cost us a bunch in attorney fees already (getting guidance from our attorney in how to deal with them because the management company didn't). We are looking for another management company but in the meantime, the issue here is our documents state all modifications or additions need to submit an ARC form for approval. Folks are putting items up behind their approved fences and other owners see them and report them. I believe we can go after them. I just wanted to know if here in Florida we are correct to go after these offenders. Sadly, city code enforcement no longer goes after anyone.

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