Home Owner's Rights

Started by CarolA2 • 22 replies • 1852 views

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CarolA2 (Florida)
Posts: 8

Posted:

I moved to a deed restricted community 3 years ago. There are 2,700 homes in our Master association and 13 sub divisions within the Master. I have a neighbor who built a structure that violates the CCR. It is built closer than 30 feet from our rear yard line. Our Achitectual Committee reviewed the matter with the Master's attorney and said that the committee cannot enforse having this structure removed because the developer never registered the set backs with the City. The CCR was filed with the county, though. I am looking for suggestions on how I can get the CCR to uphold and have this structure removed. I would have never moved to a Deed restricted community had I known that the CCR's were invalid.

I would appreciate any help or suggestions anyone could give me to get this matter resolved.

Thanks

RogerB (Colorado)
Posts: 5,067

Posted:

Carol, something smells fishy. I would first ask for a copy of the letter where the attorney said the CC&R restriction is not enforceable. My guess is there is a miscommunication by one of the several parties involved.

CarolA2 (Florida)
Posts: 8

Posted:

Roger,

Thanks for your response I could not agree with you more. I have asked for a copy from the attorney which they sought counsel from. I don't know if they will give that to me, they are really vague with the information they are providing me.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Carol,
Make sure you copy and file any correspondence with anyone involved. Always try for paper requests and answers. E-mails are good for this followed up with personal contact to insure correspondence was received.

Ask you subdivision association for any files they have concerning any court cases in the past. Ask to review them and see if there is any mention of court cases and the resolution involves the legitimacy of your CC$r's.

Also check your courthouse to see if your association is registered, your state business license office to see if you are incorporated, and don't forget to search your local court house for all court cases that has your association name as a party. Most of this, if not all you, can do on line.

You might include in the last item, a search of your Master Organization.

Also, look at your CC&r's to see how you are tied to the Master and check Master covenants to see how the Master covenants address the sub-divisions.

All the above would be public information in SC.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Carol,

If the CCRs are "filed with the County (meaning recorded with the CO recorder?) that is probably all the developer was required to do as far as recording the CCRs. The city would have had to approve the s/d so I don't know how the developer could have gotten away with building a home that did not conform to the city's set-back requirements. IMO, the home would not have passed inspection! If the CCR setback requirements are less than the city's then the CCRs are not enforceable. You don't mention what the city's set back requirements are. Are they higher or lower than those stated in the CCRs?

Why would you want the assn to require that this home be torn down? If an error was made, it's not the fault of the h/o. And, really, what's the big deal if the home is closer to the rear lot line than it should be? If the city is not concerned, what's the big deal?

It would not be unusual to find that certain restrictions contained in your CCRs are in violation of city code or even federal law, thereby making them unenforceable. That does not mean your CCRs are invalid. It only means that city code and federal law may take precedence over your CCRs and these codes and laws may have been adopted after your CCRs were written.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Mary,

Carol wrote that she wants a "structure" torn down that was not approved. You may have assumed it was the home but I am assuming that it was a shed or temporary structure. Only Carol can tell us what she ,means.

Having gone thru this with my Florida HOA, once the ARC determines that any construction of any nature was either not approved or did not follow the guidelines as in this case, the setbacks, it is up to the Board to take over from the ARC, and either get the structure within compliance or have it removed. Perhaps the Board is either scared to flex it's powers or they don't care. We don't know that from Carol either .

CarolA2 (Florida)
Posts: 8

Posted:

The home owner never asked for prior approval from the ACC to build a screened in porch which has an aluminum roof. None of the homes in our subdivision have aluminum roofs on their screened in pool enclosures. Our CCR's state that structures must be built no closer than 30 ft. from the rear yard line. This structure that was built does not asthetically look like the tome nor does it follow anthing we have in our subdivision. They also never got a building permit. When this issue were brough to the ACC's attention they had the HO get the building permit and told them that all they would need to do to keep this new screened in porch was to paint it. We challenged this decision and they stated that they would seek counsel on the matter. The came back to us and stated that the attorney said that it was a good decision to have the structure painted. The city also has a 30ft rule, but it considers the structure to be a porch which has different rules this would follow. Our CCR states only screened in pool enclosures and fences are allowed and stated that since the CCR's were never registered with the city, then the city supercedes our CCR's.

We do have copies of all of the correspondenses we have had on this matter and before we seek counsel, didn't know if there was anything we could do to force the matter to be resolved. The structure is very unappealing from my rear yard and am affraid it is detracting from my homes value, since every other screened in pool enclosure is stick built in the neighborhood. It quit honestly looks like it belongs in a trailer park, not in a deed restricted community.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Carol,

You will need to have legal council resolve this but I must correct you on one item.

You said "Our CCR states only screened in pool enclosures and fences are allowed and stated that since the CCR's were never registered with the city, then the city supercedes our CCR's"

The City does not supercede your CC&Rs. Who ever is telling you that is very misinformed. City Building Codes and Regulations must be adhered to when building any structure but the city doesn't care if you are allowing, not allowing or following CC&R guidelines, as long as they are up to code with the City.

Your CC&Rs must be in the hands of the members and Board otherwise what would you be following? And Cities normally DO NOT have copies of the CC&Rs. In Florida, the County has the copies. What County are you in?

Now back to the covered porch. It is not allowed according to what you posted. Your Board can play hardball and have it taken down or they can demand that it is modified to be more in design and material with the other homes already built with screens or lanai's

CarolA2 (Florida)
Posts: 8

Posted:

Donna,

I am in Hillsborough County. I feel that the HOA is not wanting to correct this violation. They have repeadedly dismissed the facts surrounding this issue and said it is their discresion on how to handle this situation. I was hoping to avoid the costs associated with an attorney and wanted to know if I had any other alternatives to getting this matter resolved.

I appreciate your help.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Carol,

If the Board is dragging it's feet on addressing this, sometimes a simple letter from an attorney, reminding them that they are required to enforce the CC&Rs , might get them motivated. Or perhaps you might have to hunker down and prepare for a long battle over this. IF the City has said that the screen does not have to have a 30 foot setback from the lot line, then you have no other choice but to attempt to motivate your Board into complying with your demands or you will have to live with it. Sorry

CarolA2 (Florida)
Posts: 8

Posted:

In their mind they are not dragging their feet. They sought counsel, but did not supply me with any documentation from this meeting other than stating that all that would need to be done is paint the roof of the new structure.

I have asked for some more detail from that meeting they had with the attorney to find out how they justified allowing the structure to remain standing, but have not received anything yet. Do you know if they are required to supply me with that information?

MicheleD (Kentucky)
Posts: 4,491

Posted:

They are probably using their broad discretion to define certain things in the documents (not all CC&Rs give the board that discretion, but many do) and are probably following the same or similar arguments that the city has for not recognizing a porch (which is attached to a home) as a separate and distinct "structure," thereby not subject to the 30-foot setback.

That doesn't mean they aren't enforcing the restrictions, only that they have applied a decision different from what yours is.

I'm very curious as to exactly how close to the rear property line the end of the screened-in porch is?

CarolA2 (Florida)
Posts: 8

Posted:

Michael,

The structure is 22 ft. from my rear yard line. There is no discretionary clause under this section of the CCR.

GlenL (Ohio)
Posts: 5,491

Posted:

Carol it might take something as simple as a letter from your attorney to the BOD to get them to enforce the covenant or it might require an all out expensive battle on your part. As I read your posts your main concern seems to be that it's ugly and you don't want to look at it; would you consider as a compromise if they planted and maintained a screening hedge?

Studies show that 5 out of 4 people have problems with fractions

CarolA2 (Florida)
Posts: 8

Posted:

We already have a fence between the two properties. The roof is sloped and that is what we are looking at. We have already asked them if they would replace the sloped roof with a flat roof and they said that they wouldn't, nor is the ACC requiring the to do it.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By CarolA2 on 10/26/2009 2:24 AM
We already have a fence between the two properties. The roof is sloped and that is what we are looking at. We have already asked them if they would replace the sloped roof with a flat roof and they said that they wouldn't, nor is the ACC requiring the to do it.

I wouldn't do it either. But I would still guess that your governing documents give your board some discretion. Most do. Some don't, so it's not unheard of. But still, there might also be something like this in there:

Section 7. Board's Determination Binding. In the event of any dispute or disagreement between any owners relating to the property subject to this Declaration, or any questions of interpretation or application of the provisions of this Declaration or the Bylaws, the determination thereof by the Board shall be final and binding on each and all such owners.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Carol,

Forgive me, but I must ask: "What's wrong with a sloped roof?" I certainly would want a flat roof, which holds water and is high maint. Could it be that you really don't like this person and that's why you're being so stubborn? Are you really prepared to spend thousands of dollars (perhaps tens of thousands) to bring suit against the HOA for something as inconsequential as a sloped roof?

Most CCRs give the board the discretion to interpret the covenants, and as regarding ACC disputes, the decision of the board is final.

CarolA2 (Florida)
Posts: 8

Posted:

Michael,

Thanks for the example, I read through the CCR's and don't see anything that is even similar in meaning. Where is this normally in the CCR's?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Aesthtically, a sloped roof looks more like a permanent structure than a flat roof, I do agree on. But back to Carol's original issue is that there was no approval or permit for the structure and there lies the problem.

Carol, I would forget about how the roof looks, it's not for you to judge how it looks but I would work on the fact that the Board is not handling this at all. They said to paint the roof and the H.O has refused to do that.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By DonnaS on 10/26/2009 9:09 AM

Aesthtically, a sloped roof looks more like a permanent structure than a flat roof, I do agree on. But back to Carol's original issue is that there was no approval or permit for the structure and there lies the problem.

Carol, I would forget about how the roof looks, it's not for you to judge how it looks but I would work on the fact that the Board is not handling this at all. They said to paint the roof and the H.O has refused to do that.

I'm not sure that is accurate from what I can tell. This is all I can find that Carol has had to say about that:

Quote:

When this issue were brough to the ACC's attention they had the HO get the building permit and told them that all they would need to do to keep this new screened in porch was to paint it.

I can't tell from this that the homeowner has refused to do anything. Only that the ARC has weighed in that all that needs to be done is for a permit to be obtained and for them to paint "it" -- and by that I'm guessing "it" refers to the porch and not necessarily the roof.

But I do agree that a sloped roof (or a roof with a pitch) is more aesthetic than a flat roof (one without a pitch).

NancyD7 (Florida)
Posts: 6

Posted:

CarolA2,

Whoever said that the city or county superseeds your CCR's is correct. Look at The Sunshine Laws in Florida. They only pertain to HOA's when it concerns Architectural situations. The builder does not have to register anything with the individual citys in Florida. The CC&r's are filed with the county then approved with the state. If the city statute says this is the code, then whatever your CC&R's say is void because the homeowner has to comply with code.

In Florida the Architectural laws were changed in FLS720. Check these also. FL720 now gives the homeowner a lot of latitute if the exact requirements, colors, style, etc. is not spelled out in the CC&R's. What 720 comes down to is: if it's not spelled out exactly in the CC&R's the homeowner can do whatever he wants, as long as it is in code.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By NancyD7 on 10/30/2009 5:54 PM
If the city statute says this is the code, then whatever your CC&R's say is void because the homeowner has to comply with code.

Nancy, with all due respect this is only partially correct.

The CC&Rs must comply with city/local code in that they cannot allow something that the code restricts.

On the other hand CC&Rs can be, and often times are, more restrictive than city/local code. So the CC&Rs are not void if they don't match.

Only those parts that permit things that the local code disallows is void.

The parts that are more restrictive can still be enforced by the HOA.

So the screened-in porch and pitched roof may well be to local code, in which case that is a good thing.

However, if the CC&Rs specifically state that screened-in porches are not allowed, then the HOA can still enforce and have a screened-in porch removed.

In regards to this particular case, I think the CC&Rs are apparently either somewhat ambiguous, or allow for the ARC to approve the porch, which they did as long as it's painted.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Nancy,

One more correction to go along with Michele's "on the money" remarks.

Although the CCRs are recorded with the co recorder, in AZ at least, they are NOT approved by the State. In fact, the CCRs are not approved by any govt entity; the developer can write anything he wishes in them. Do you know for a fact that the CCRs are approved by the State of FL???

You stated that according to FL720, if it's not spelled out in the arch guidelines the owner can do as he likes as long as it is in code. I think you are referring to 720.3035(3), posted below, which really only pertains to set back requirements for placement of home on lot. There is nothing else in the statute referring to city code.

720.3035(3) Unless otherwise specifically stated in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, each parcel shall be deemed to have only one front for purposes of determining the required front setback even if the parcel is bounded by a roadway or other easement on more than one side. When the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants do not provide for specific setback limitations, the applicable county or municipal setback limitations shall apply, and neither the association nor any architectural, construction improvement, or other such similar committee of the association shall enforce or attempt to enforce any setback limitation that is inconsistent with the applicable county or municipal standard or standards.

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