Rules, Proof of legal vote (Florida HOA)

Who is responsible to produce the proof that a rule was legally established by a vote of the board? I believe the burden in upon the HOA board.
and
If there are no official records that a rule was voted in by the board, can the rule be enforced? I believe, no backup, rule cannot be enforced.

My board will not produce any documents that they enacted a rule in years past. They are making me go through boxes and boxes of papers just to find out when they enacted a rule. They have not singled out and kept together any minutes regarding rules. If available it is in a "big pile." They are falling back on the right of an owner to review official records.

Florida Statute 720 says they have to have a "list" of current rules - they do not have a list and cannot produce one when asked. They just say a rule is in effect.
Also, the statute says they must keep "all records...related to the operation of the association." I believe this would go beyond the 7-year rule for maintaining official records as they may relate to an active rule "related to the operation."

The board has nothing that they can produce to show a rule was enacted. They do not even have a list of their rules. They just quote them one at a time when an issue comes up.

When I said the board will not produce any documents, I meant that they will not give me any hint as to when the rule was voted on. I feel sorry for this board; I realize that there has been poor record keeping in the past. But is not the burden of proof to prove that the rule was passed on them. They have placed the burden on me when I requested the proof by providing boxes of all paperwork for years. The present board has no idea if a rule was passed or not. The rules have been passed from board to board by word of mouth.
You said that even through a vote can't be proven, the rule is still may be in force. I don't understand why. That indicates a board can say anything is a rule without ever voting on it and that carries on for years.
Does it really matter what the rule is? It's the principle no matter how important a rule may be.
What additional info do you feel would be helpful?

I'm going through the boxes. If I'm going to be a problem, I'll be part of the solution.

I have the covenants, by-laws and refer to them all the time. Anything that is in those documents I am not questioning.
With the president’s approval, I did make a list of all the rules that I had heard spoken throughout the years. I researched each and sited where the backup was, covenants, by-laws, county ordinances, whatever. Those that did not have any backup, I suggested a committee go over them, present to the board, and take a reconfirming vote. It was very time consuming. When the final was given to the president, she "trashed" the list and my suggestion.

BINGO!

Great advice, and should be pretty easy to do, given what Brenda has shared with us.

I'd still like to know what some of the "rules" are that are in question.

Even if the board DID enact some "rules," if they are in conflict with the covenants, they would be unenforceable anyway.

To answer some questions presented by several
-It is a Florida HOA board (Florida Statute 720)
-The present president took over 4 years ago from the "good old boy." Unfortunately this current president does not know the statute, and gets very frustrated and yes sometimes acts just like the good old boy.
-The size of the association is 236 single family homes, over 55 community.
-The rule does not go against the covenants or by-laws as the rule pertains to what is considered a common area -- the grass from the walkway to the street which also serves as drainage which is why they want to protect it. They say they have a present rule and will tow without warning. I'm asking for their backup to prove that the board at anytime did approve. They did do a resolution a few years ago that said they would tow under the guidelines of the county ordinance. The resolution did NOT state under what circumstance they would tow. They just want to give themselves the ability to legally tow when they felt it necessary.

So, I'm asking,
--if they cannot prove a rule was enacted, can it be enforced.
--And do I have to go through boxes & boxes of material to prove them correct...or is it their responsibility to provide that information.
I have had one response that says 'yes' they can enforce even though they cannot provide proof of ever making the rule. So what do you all say.

Okay, from the answers I've gotten, it appears that a board ‘should’ be able to produce backup on a rule being voted in. Out state statute does say they are to keep those records…but a board can enforce any old rule until "legally" challenged – go to court. It is useless for me to go through boxes of papers. If I can't find where they voted on it...too bad. They can still enforce the rule. I get it, don't like it, but I get it. As has been said, they are calling my bluff. I am going through the boxes and no matter what I find or don't fine, I will report publically at the next board meeting.

Michael,
The rule is: No tires on the grass swale. A car will be towed without warning. (A grass swale is in front of everyone's house and is the grassy area between the walk and the road.)

-The covenants have NO parking restrictions, just say that the board can make rules regarding the common areas. They consider that area of grass a common area, even though I must maintain it. Yes I know, this is another whole debate on whether they have the right to make a rule about that grassy area. (There is no mention of limited common area in our covenants.) Understand that the surveyed property lines weave in-and-out of the swales. As an example, my property line only goes to ½ of this area Some own no part of the swale, others own the whole area. That is why it is considered a common area. It does keep the area looking well maintained when not torn up with tire ruts. So I don’t have a real concern about tires on the grass, just was it legally enacted. Understand, as stated before they have no listing of their rules, no backup to present. This one rule is basically a test case, hopefully to get their act together.

-I believe, the 'without warning' will get them in trouble with the county ordinance. I'll have to go through the ordinance more carefully, because I think they must give notification and there is a way to file a complaint without a lawsuit. Anyway that is another issue. I’ll be researching that further

-The streets are privately owned and maintained by the association.

-Any car would be towed. It is not a question of someone else going on private property...if my car, in front of my house, has just one tire on that grass swale that I maintain, they will tow without any warning to me.

Sometimes an issue seems so trivial – like who really cares if a tire is on the grass or not…but do it the right way.

Brenda,
I'm in Pasco County, Florida and we are in the process of writing a towing resolution. We have many residents breaking the parking rules. The Florida State Statutes 715.07 on towing gives the requirements for being able to tow. We are private streets.
Barbara

I'm going to end this. My original question was: Who is responsible to produce the proof that a rule was legally established by a vote of the board? I believe the burden in upon the HOA board.
and
If there are no official records that a rule was voted in by the board, can the rule be enforced? I believe, no backup, rule cannot be enforced.
And you may have seen my other topic on the Florida's 14-day rule for notification of owners when changing rules.

I believe all has been answered this.

But then the discussion went to the actual rule of parking on the grass swale and towing rule. Well, I found nothing in the "official records" of the association. But I did find a resolution filed in our Clerk of Courts virtual office on the Internet. So no proof of vote, but have the resolution that says two tires or more on grass and they will tow. I guess I can have one tire on the grass. Anyway, bottom line, there is a rule, they tried to change it and never did the 14-day notification to owners. So they can't change until they do that.

And by the way, I had to do all the research. I have researched the State statute on towing and my county ordinance (70 pages). I wouldn't touch towing unless it was a real serious problem. And then I would make sure that an owner got warnings. Of course my board just wants to tow without warnings. Oh I could go on-and-on. I'll be at their next meeting having fun!!!!
The end and thank you all.

No problem, Brenda. It happens all the time. It's the one "L" -- people misread it as Michael.

Anyway, I agree that the board should have the burden of proof, but, unfortunately, there is nothing with any teeth that will "make" them give you the proof, unless you take it to court. It's unfortunate, but true.

Also, for the record I agree completely with your assessment that they really really really need to stop the "without warning" thing.

Even if they DID have a properly created rule/resolution, properly filed, it would very likely NOT hold up in court the first time someone sues them for damages done to a vehicle that the owner alleges happened during the tow or the first time someone sues to recover the costs of the tow.

That's why, even though our own documents do allow us to tow, we don't do it UNTIL we get a court order allowing us to.

To date, we have not had to go that far.

Make some noise! Have some fun, it is the New Year, after all!

Well, it's not "problematic," depending on your definition of "problematic."

As I said, we've not had to bang that gong, yet, as by the time the resident has received the attorney's letter that a lawsuit will be filed, they have complied.

Now, it appears that we may be sneaking up on that from one homeowner as I just received another complaint about parking from someone to whom we've already sent the attorney letter, so I'll let you know!

It would basically be an issue of cost for the legal filing and trial.

The attorney does all the work.

All we do is provide the documents that show:

1) the covenant and restrictions regarding parking
2) the complaints that have been logged regarding the non-compliant parking at the address
3) the notices that have been forwarded to the resident requesting compliance (usually 2 to 3 notices from the board and at least 2 notices from the attorney)
4) any fine notices

The attorney would then make the request from the judge for an injunction and a request for a court order to tow.

The judge would then issue the injunction and court order (if all our documents are in order).

Then we would take that court order and the next time we receive a report of the non-compliant parking, contact a towing company to haul it off.

My guess is that if we DO get to that point, we would only have to do it ONCE.

Once word spreads that we are receiving court orders to tow, we would likely have fewer issues with non-compliant parking!

We have had a couple of lawsuits over the years regarding non-compliance of various restrictions.

One cost us about $2 grand, all told, and another cost us about $6 grand in the end. That was because we had to go back a second time when the homeowner refused to comply with the court order and request to have him found in contempt of court. We then had to get a sheriff to escort us to the property to execute the order.

Of course, we do have legal fees built into the budget.

Absolutely, Dwight, thanks for pointing that out.

But, at times, that can also be at the discretion of the judge. We were able to collect the entire amount for the $2K lawsuit, but the $6K one we only were able to recover half.

Still, it was well worth it in the long run. And it wasn't all "paid out" at one time, either. It was spread over a couple of years, so it wasn't a huge "hit," so to speak.