Ignoring Architectural Control Provisions Can Be Costly
.jpg)
The governing documents for many community associations provide that the Association must review plans and then issue written consent for construction of improvements or modifications - especially if those improvements or modifications will be visible to other owners, involve the common elements or association property and/or impact utility services to the property.
We learned long ago from the case of Hidden Harbour Estates, Inc. v. Norman, that condominium residents give up a degree of their individual freedoms for the benefit of all unit owners. Similarly, by virtue of detailed, recorded covenants and restrictions, single-family homeowners give up freedoms they might otherwise enjoy, were they not living in planned communities. These restrictions are an area in which individual autonomy is subrogated to the common good.
All too often, however, property owners ignore the architectural control provisions of the governing documents. When timely and consistent enforcement action is taken by the Association against an owner who has made unapproved changes, the appropriate remedy awarded by the court is a mandatory injunction. The courts have broad discretion to fashion an appropriate remedy, but usually a court's order requires the offending owner to remove unauthorized changes and to restore the original condition of the property. In several cases the courts have required removal of balcony enclosures, storm shutters, decorative features, fences, patios, and newly painted colors. Some homeowners in Pasco County, Florida recently learned this lesson the hard way. Bay News 9 showed demolition of recently constructed expensive docks that were built without HOA consent. One homeowner said she paid Sixty-Five Thousand ($65,000) Dollars to build the dock - only to watch it being dismantled after losing a court battle with the Association.
- A homeowner thought that since he obtained a permit for the installation, HOA approval was not necessary - not true.
- Another homeowner thought that since the HOA didn't own the property underneath the dock that HOA approval was not necessary - not true.
- Another homeowner thought that approval by the Environmental Protection Agency (EPA) overruled the HOA - not true.
HOA leaders need to be cognizant of Section 720.3035, Florida Statutes, which became effective on July 1, 2007. This law does not eliminate an association’s ability to regulate alterations to a lot but does require that authority be specifically stated or reasonably inferred from the written covenants or other published guidelines and standards authorized by the declaration of covenants. Home or Unit Owners need to learn and understand what procedures are in place in their community association to avoid costly problems.
What if the converse of this topic - i.e. the HOA fails to enforce covenant provisions nothwithstanding demands of some members that it do so. Can it be held liable for damages and attorney fees? Can a mandatory injunction be imposed against the HOA requiring enforcment?
Response: Please look through this site - especially the post entitled "Covenant Enforcement an Option for Property Owners"
http://www.floridacondohoalawblog.com/2009/04/articles/qa/covenant-enforcement-is-an-option-for-property-owners/
Some HOA's become dictatorial as in my asosiation. They denied a homeowner the right to build a block fire/hurican proof generator shed 10 feet from the home to house gas and a generator. It can not be seen by any other home owner. and s recomended by the fire deartment.
HOA- restrict a delinquent owner from using the guest panel at a gated community; is it legal?
in addition he is running a business from his garage; tire shop.
we understand the owner cannot be denied access into his home. But how about making it difficult for the owner whos guests are clients for the owners tire business?
RESPONSE: HOA's can suspend use rights if the governing documents contain that remedy. The appellate courts have not answered the question whether an HOA can suspend the use of the entry control access device. Many associations do require delinquent owners (in excess of 90 days) to use the guest gate to access the home. The Association certainly has remedies for violations of the governing documents.