A lengthy thread about our HOA

Where do I begin? I am new to this, so please be patient. I live in Florida in a 17 parcel development governed by a nonprofit homeowners association. In 2002 the association was incorporated, the CC&Rs created, and the lots were sold to different people. Hereis a map to illustrate the layout,

http://www.mediafire.com/imgbnc.php/3ac18f8b45cb8c60c48c1dd2d683b8826g.jpg

The only common property that exists Is Holloway Creek Drive and the property of common responsibility which is the water management system shown on the map for water runoff by the dotted lines. Holloway Grove Way is a private dirt road owned by the owners of lots 14-17. Not all lots have homes of them. Lots 1-3 are vacant. Lots 4-13 all have homes on them with the exception of lot 8 which is also a vacant lot. Lots 14 and 15 do not have homes, but 16 and 17 do. Since the association has been transferred from the developer to the homeowners three years ago, not much has been done. The restrictions have not been enforced, there never has been a planned budget, minutes were not kept for the last two annual meetings,... Sorry for the lengthy post, but if you're still with me at this point, you've got an idea of what's going on.

Not knowing what all is involved, my wife recently became president, our neighbor VP, so I decided to take secretary/treasurer to help them out. So we inherited this mess...

We live in a rural area surrounded by strawberry and blueberry farms, the lots are all one acre, and the homes are nice. Lots 14 and 15 used to be pasture, but the owner who lives in a house next to those lots (not in the association) has since put in irrigation and blueberry plants. Nobody in the association cares that they are there, but the declaration reads as follows:

Article VI. Use Restrictions for the Common Good
Section 1. Single-family residential use.
Each lot shall be used for residential use, pastor, or for citrus grove.
-and-
Section 3. Commercial use. None of the lots shall be used in any way directly or indirectly for any business, commercial, manufacturing, mercantile, storing, vending or any other purpose incompatible with single-family residential use except that dwelling rights may be the least as permitted by Section 1.

Clearly he is in violation, but nobody wants to see him have to take the loss if there is any way around it legally. I personally don't care if the guy wants to grow blueberries, but if that is ignored, then how can you enforce any other restriction? You can't. On the other hand if you can get 75% of the homeowners to amend the declaration to allow the blueberries, that opens the door for anyone to run a business from anywhere in the development (not desired).

So how would the situation best be handled? We would like to enforce other rules to have a homeowner find somewhere else to park his RV and another neighbor to maintain his yard.

Sorry for the lengthy post, but any thoughts or suggestions?

ETA:. The budgeting and record keeping isn't going to be a problem as it's in the works now.

I'm confused (as usual).

If the person who is planting blueberries on lots 14 and 15 is not in the association, then how can he actually do that? I mean, plant and tend to vegetation on someone else's property?

If the person who owns the lots has granted this person easement, then it seems you have a fair question to ask: are you planting blueberries for yourself or are you planting them commercially?

It seems that if they are planting commercially, especially if the person planting is not a member of the association, but planting on lots in the association, then the thing to would probably be to enforce against the owner of the lots.

He/she should not be subletting out to commercial enterprise. He/She could probably sublet out or lease his lot to someone else, but not for a purpose that is contrary to the CC&Rs.

At least that's my take, but I'm sure others will weigh in.

You are correct in that the gentleman with the blueberries owns the two lots that are in the association, and lives in the house adjacent to those lots on property that is not part of the association. The blueberry plants are in rows throughout both lots except in the 30' easement which is Holloway Grove Way. It does not look bad and I don't see how it would be any more offensive than a citrus grove which is allowed. However, if somebody wanted to be nitpicky in the CCR's it violates Section 1 as it is not a single family residence, pasture, or citrus grove. Does it violate Section 3? I don't know. When the plants start producing fruit it will yield an awful lot of blueberries for personal consumption, but then again he could be donating them to a church. If he is selling them however, even from another location, he would then also be violating Section 3 by indirectly using those lots to operate a business.

Seeing how I would hate to see this guy lose his investment (even if he is in the wrong), we also want to be fair and keep the community "neighborly". If 75% of the members vote to allow the blueberries and amend Section 1 that would be good, however, if Section 3 is being violated, to amend that would mean any homeowner could use their property for any type of business too, right?

It sounds awful nitpicky, but I want to know what's right in case somebody down the road wants to complain about every and any violation.

Article IX. General Provisions.
Section 2. Enforcement. Declarations, the Association, or any owner shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, easements, reservations, liens, and changes now or hereafter imposed by the provisions of this declaration. Failure by Declarant, the Association, or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. The liens granted by this Declaration shall secure, and the association shall be entitled to an award of, its costs of enforcing these restrictions, including reasonable attorney fees incurred for consultations and demands, for representation during the pendency of litigation, upon any appeals, and after litigation regarding the enforcement of the judgements. In any litigation regarding these restrictions the prevailing party shall have the right to an award of his or her reasonable attorney fees incurred for consultations and demands, for representation during the pendency of litigation, upon any appeals, and after litigation regarding the enforcement of the judgements. The court in any action pursuant to these restrictions shall have broad power to fashion an equitable remedy or to refuse any remedy to avoid an unreasonably harsh result, it being the purpose of these restrictions to provide a friendly neighborhood in compliance with these restrictions, as opposed to provide an instrument of revenge and retaliation.

Robert,

Mary offers a good suggestion as a starting place to cover the "commercial" issue.

But let me ask you this:

It appears you have 5 unbuilt lots, 1-3 and the blueberry patch. As between 1-3 and the blueberry patch, which would you say looks better from an aesthetic POV?

If the blueberry patch does, based on your Article IX, I'd say you (the BOD) could let it pass for now w/o losing enforcement possibilities in the future.

Thank you all very much for the replies.

IMO the blueberry patch looks better than the 3 vacant lots on the other side. I am going to see if we can't get the wording changed in Section 1 to allow that. That is the biggest violation and most sensible solution, IMO.

I agree Susan. I think the only reason citrus grove is mentioned is because the land the subdivision is on used to be an old orange grove. The reason pasture is on their (I'm guessing) is because the developer is a veterinarian and owns cattle.

If you are looking for a possible loophole to allow this property owner to retain his blueberries, you could say that by not allowing him to grow his blueberries, you would violate s720.3075(4).

That section regards prohibited clauses in association documents. It states that "Homeowners' association documents, including declarations of covenants, articles of incorporation, or bylaws, entered after October 1, 2001, may not prohibit any property owner from implementing Xeriscape or Florida-friendly landscape, as defined in s. 373.185(1), on his or her land."

Some blueberries are drought tolerant and can be used in Xeriscaping. You may have to check your local landscaping planning, but for instance, the city of Freeport, Florida lists "Blueberry, evergreen" as a drought tolerant plant. Not all blueberries are evergreen, and so by that wording, a deciduous blueberry may not be covered under those same rules. I would definitely consult your local government's requirements first.

I would also find out what type of blueberry the homeowner is growing, as well as talking with them to determine their intent. Maybe something can be worked out that everyone can agree upon.

Thank you, Kevin for that specific information. Before we have an annual meeting I am going to call the guy up and invite him over. It will be much better to have a face-to-face conversation with the neighbor first to explain where I'm coming from and what we are trying to achieve instead of just saying we are now going to start enforcing the covenants and have this one issue dominate the meeting.

RobertR, with all due respect, I think that is probably the gist of what this OP is trying to do: establish some sort of priorities for getting their ship in shape.

Part of that would be in determining how to address something that may well become a time bomb once they get into gear trying to enforce other restrictions.

I think his attempt here to analyze the approach, determine a strategy to deal with it, and then have alternate strategies available if negotiation or compromise is required, but still doing so within the scope of his CC&Rs.

I see this thread more as a "what is the WORST case scenario, and how should we address it, and what is the BEST case scenario, and how can we use that to our advantage"?

He appears to be seeking win-wins for as many of the residents involved as possible.