Estoppel - Undocumented violation

A home in our neighborhood was recently sold with a preexisting yet undocumented violation which consisted of an unapproved shed being installed 10 years earlier from the previous owner. At transfer, the new owner receives a clean estoppel from the HOA however a few months later, a new board of directors decides to fine the new owner for the shed. Is the shed grandfathered in by either a Florida statute of limitations, or by the clean estoppel certificate issued from the HOA?

720.30851 Estoppel certificates (this is not the entire statute, I just copied the portions I thought were relevant)

An itemized list of any additional assessments, special assessments, and other moneys that are scheduled to become due for each day after the date of issuance for the effective period of the estoppel certificate is provided. In calculating the amounts that are scheduled to become due, the association may assume that any delinquent amounts will remain delinquent during the effective period of the estoppel certificate.

Is there any open violation of rule or regulation noticed to the parcel owner in the association official records? (Yes)   (No)

An association waives the right to collect any moneys owed in excess of the amounts specified in the estoppel certificate from any person who in good faith relies upon the estoppel certificate and from the person’s successors and assigns.

Violation status is not one of the pieces of information that FS 720 requires to be included in an estoppel letter, but FS 720.30851 says The association, at its option, may include additional information in the estoppel certificate.. My take is that any such additional info would be legally binding.

If the estoppel explicitly said there were no violations, I think the association is bound by that. On the other hand, if violation status was not included, that does not imply no violations and the association can enforce existing violations.

When I was filling out estoppel letters, most closing agents sent their own form with questions like violation status. The association is not required to provide that info, but if they explicitly say "No violations", then I think the new owner is off the hook.

Did the estoppel letter say anything about violations or was the topic ignored?

As far as statute of limitations (or search on laches), I'm not sure sure, but if the association failed to enforce for 10 years, they might have a hard time prevailing if it goes to court.

Sorry, it looks like my post had misinformation. Augustin is correct, at a quick glance I thought this was optional, but it appears to be required:
7. Is there any open violation of rule or regulation noticed to the parcel owner in the association official records? (Yes)   (No) .

Thank you CarissaM, AugustinD, and DouglasK! Your feedback was fantastic!!!

To give a little extra context, stand alone sheds of any kind are not allowed per the CC&Rs but our neighborhood has lots of sheds since the late 80s and the HOA really only acts if someone complains (which is what recently happened). I am a board member and the homeowner is going to sue as he bought the home with the shed which was apparently even on the survey. I agree that the intention of the estoppel is to protect the new buyer and "estopp" or bar the HOA from seeking settlement on anything other then what was in the certificate. I think chances of getting any money from the previous owner are lost as this should have been done when they still owned the home and there was collateral on the table. Excellent point on the abandoned covenant! I am researching this now. THANK YOU again everyone!!

Casey

Being on the BOD, can you not convince them to withdraw the Violation they sent the new owner? Seems they want to shoot themselves in the foot.

Then as CarissaM brought up in her first post, and if push came to shove, and along with the estoppel certificate arguments, I sure would not want to spend money on an attorney in a wager that the HOA would prevail. This is due to the now strong signs (in my opinion) that this situation passes the tests for abandonment of the covenant. Said main tests being by my understanding: By driving around the neighborhood, it's manifest that no such covenant exists, and it has been this way for say ten years or more, give or take).

Even reading that the HOA sometimes tries to enforce the shed covenant disappoints and, as HOA Board actions go, alarms some. When the HOA tries to enforce the shed covenant, this raises a possible third defense by the owner so accused: Selective enforcement.

The odds seem to me to be so stacked against anyone trying to enforce this covenant at this point.

I think owners who complain do deserve an answer. I do wonder if the Board ought to put out a statement on this topic, like, "On advice of the HOA counsel, and given the decades that have gone by with many sheds sitting on owners lots, the Board feels pursuing enforcement of the shed covenant raises liability concerns for the HOA. This Board will no longer attempt to enforce the shed covenant."

Most likely, the covenants say any owner who feels strongly about someone else's shed may still sue and try to prevail against another owner. Who is thinking of going after the prior owner? The current owner? The HOA? Or is this just a speculation about all the possible outcomes here? Fuggetabout this. The HOA has a contract (via the covenants) only with current HOA members.

If you are having a hard time convincing the Board that enforcing the covenant at this point is a mistake, motion for a consult with the HOA attorney.

THANK YOU everyone for your feedback on this issue, this information is tremendous. I did speak with an attorney who says the abandoned covenant rule can be applied anytime an unenforced covenant has changed the overall nature of the community, which I think it has.

AugustinD, you ask a great question about going after the prior owner. One of our board member thinks the new owner's title insurance is on the hook for this and they will in turn go after the previous owner for the fines and cost to remediate the shed. Has anyone even heard of such an outcome? I think isn't a FAT CHANCE of this ever happening!

Thank you again for all the help guys!!

The title insurance would not be on the hook for squat.. Your HOA is on the hook. Your HOA can fight it, but they will lose and lose Biggly. It is one thing if there was an active violation on the property and your property manager sent out a clean estoppel letter, then your PM would be on the hook, You have two things against your HOA. One is an abandoned covenant, second is a variance. The HOA is just asking for trouble if you try to enforce it.