There are many reasons why people chose to live in a community governed by a homeowners association. For some, the chief reason is the strict rules that govern what you can and cannot do to your home. Paint color, decorations, and the general condition of the structure are all monitored and controlled. If a homeowner wishes to make a change to the outside appearance of their home, they must first obtain permission for the change. In most cases, this is done through an architectural committee.
More than one reader has informed me of issues with their architectural committees, and the rights and remedies that they have under the law. In Bonita Telford’s neighborhood, one homeowner had a meeting with the ACC board to discuss a project that was not approved. Eventually the board approved the project after a hearing, and everything seemed okay. Now the HOA wants her to pay the legal fees.
This brings us to the two questions that Ms. Telford wanted to be addressed.
1. The HOA and ACC, nor the grievance committee did not grant her an initial hearing as she requested and they should have done according to the CCR. They got the attorneys and the management company strong armed her and sent her letters demanding she pay the fees or a lien would be filed against the property. That is against the FS.
According to Lisa Magill, an attorney at the law firm of Becker and Poliakoff and Webmaster of the Florida Condo and HOA Law Blog, “each homeowners’ association operates according to its covenants and restrictions. In many cases a declaration of covenants will provide the association the power to maintain property that hasn’t been properly maintained and to remove unapproved improvements or changes at the expense of the homeowner. The declaration of covenants for this particular community may grant the association the power to lien for expenses associated with enforcement of the architectural control provisions. Please note that HOAs need specific authority to enforce architectural controls. Section 720.3035, Florida Statutes says (in part):
The authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.
The statute prohibits the HOA from unreasonably, knowingly, and willfully infringing upon or impairing the rights and privileges set forth in the declaration of covenants or other published guidelines. If that happens, the homeowner is entitled to recover damages caused by such infringement or impairment, including any costs and reasonable attorney’s fees. The HOA statute requires any party to a dispute regarding architectural control (changes to the parcel) and other covenant enforcement disputes to offer the other party the opportunity to participate in pre-suit mediation. Section 720.311, Florida Statutes spells out the procedure and includes the actual form of letter for the homeowner (or association) to use to demand for mediation. The mediation conference provides the homeowner the opportunity to sit down with a member or members of the board and attempt to resolve the dispute over the architectural control issue. “
2. What are her rights, without her obtaining legal counsel?
According to Donna Berger, Managing Partner at Katzman Garfinkel & Berger & Executive Director of the Community Advocacy Network (CAN), “most governing documents allow the association to recover its attorney’s fees against an owner if the association is the prevailing party in an action against that owner.
It is very rare for an association to have the right to collect attorney’s fees from an owner BEFORE a lawsuit has been filed or arbitration pursued. That’s not to say that there are never these kinds of clauses in documents but they are rare. It is also possible in the case you describe that the association has no legal authority to demand or collect its attorneys fees or to lien but is doing so in an attempt to further “strong arm” this owner.
Absent a “pre litigation attorney’s fee” clause, associations must understand that pursuing violations is a cost of doing business and one they must absorb unless they proceed to actual legal action.”
There will always be disputes between the board of directors/property manager of an HOA and it’s residents, but the important thing to remember is that the association exists to benefit all of its members. As the annual meetings for most associations in the county are approaching, board members should be aware that their actions will come back to haunt them, and they are not the kings of the development, but only it’s protectors.
Be sure to subscribe to this column, and stay abreast of issues involving you, the homeowners of Palm Beach County! If you’ve had any issues with your HOA that you’d like me to try and delve into, and possibly write about later, please let me know.