Ignoring Architectural Control Provisions Can Be Costly
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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.
can an hoa whose rules require that hurricane shutters be open except during a storm force the removal of a transparent, permanent plexiglass hurricane shutter covering a fixed window over a doorway
Hi - I'm in Pasco County, FL. Earlier this year, I applied for an architectural addition to my home, essentially a concrete slab with an aluminum screened enclosure and Elite panel insulated roof. The screened enclosure is open on all sides with the exception of the existing home wall to which the screen was added. Our HOA approved the enclosure with the roof; however, per their interpretation of our Guidelines approved it but require shingles. Our contractor told us that shingles could be added to this type of enclosure; however, that contractor disappeared before the work on the enclosure was completed. We've since had other contractors and roofers come out for an estimate and they all tell us that this structure is not designed for shingles and will not support shingles. Upon closer review of our HOA guidelines, roofs on screened enclosures are exempt from being shingled. Because the architectural committee approved this addition with shingles despite a bad interpretation of guidelines, am I required to shingle - even though it will compromise the integrity of my enclosure due to weight? The guideline that was misinterpreted is below:
c.Roofs (with the exception of screen enclosures) must be of the same style (shingle) and color as the original roof. In no case with the use of aluminum or other insulated roofs be permitted.
If the HOA documents include a list of the plant materials to screen a fence stating the plant choices "shall be limited to" and the fence was a builder-installed fence thus the Architectural Review Committee does not need to review the fence, isn't it a violation of Section 720.3035 for the ARC to require an application to "preapprove or deny" the homeowner's plant choice from the published list?
RESPONSE: The application is for the purpose of notifying the association what changes/installations/plantings the owner intends to use. If there are options written into the architectural guidelines, the owner is given discretion to choose from among those options.