Posted on February 18, 2010 by Lisa Magill

Ignoring Architectural Control Provisions Can Be Costly

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.

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Posted on January 5, 2010 by Lisa Magill

HOA Leaders Need to Understand MRTA

  Associations May Lose the Ability to Enforce Covenants and Restrictions as a Result of the Marketable Record Title Act (MRTA). 

While the MRTA Statute was primarily intended to simplify real property transfers by eliminating “stale claims”, association leaders and homeowners must understand that the recorded covenants and restrictions governing their communities may be considered "stale" after a certain period of time.

I'm not referring to the duration of the covenants (usually a paragraph that says something to the effect that the covenants are effective for 50 years and then renew for successive periods of ten years) themselves.  I'm talking about a law that may nullify the duties and obligations set forth in the recorded documents during the initial period (or a renewal, as applicable).  

What would happen if your community didn't have enforceable covenants?  Would homeowners pay assessments or maintenance fees (maybe some would - most probably would not)?  Would homeowners build swimming pools (if permitted by code) in the front yard or build an addition that made their house look like a Victorian Mansion in a Key West style community (they may)?  How would that impact everyone else?  How would you feel if your neighbor had Al Goldstein's taste in art or the local Steelers fan decided his house must be black & gold and the association didn't have the power to do anything about it?

Section 712.02 of the Florida Statutes, in pertinent part, provides:


Any person having the legal capacity to own land in the state, who, alone or together with his predecessors in title has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate and land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in [F.S.] 712.03.
 

Accordingly, a person who has owned (or through his/her predecessors in title has owned) his/her land for 30 years or more has marketable record title free and clear of all restrictions (which includes Covenants) unless the restrictions are specifically disclosed and referenced in a document that passes title. The 30-year period commences upon the “root of title”, which (without being too technical) is basically the first deed to each lot that is transferred after the Covenants are recorded.

Don't worry  - there is good news. 

  • First, most of the time MRTA does not impact condominiums or condominium association covenants and restrictions, but there are some cases where MRTA may apply if easements or other restrictions are not referenced in the Declaration.  
  • Second, there are procedures set forth in the Statutes to preserve and protect covenants and restrictions that have not yet expired.  Handling this issue while the covenants are still in effect saves a lot of hassle (and expense) later on.
  • Third, there are also procedures for homeowners and homeowners associations to follow if the thirty (30) years has come and gone already to revive or renew the covenants and restrictions. 

 If you haven't discussed this issue with your Community Association Attorney yet, don't wait any longer.  Find out what steps you need to take to protect and enforce the recorded covenants.

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