HOAleader.com - Tip of the Week - November 16, 2018
Published: Fri, 11/16/18
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HOA Asks: We Know We’re Prohibited from Doing This; Can We Do It Anyway?
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In this week’s tip, we answer a reader’s request that goes something like this: We have whitetail deer on our HOA grounds, and we need to cull the herd, but our governing documents don’t permit that. Mother, may we do it anyway?
Generally, our experts advise that it’s unwise to waive enforcement of a provision in your governing documents.
“I tend to agree with the attorney’s opinion that if this provision regarding hunting and protection of the animals that are part of this development is a material aspect of the ambience of the association and the lifestyle, you can’t waive those kinds of provisions,” asserts Greg Scott, a partner at Nason, Yeager, Gerson, White & Lioce in Palm Beach Gardens, Fla., who has represented about 150 community associations over his 30-year practice in the field.
“Florida statute says that if you want to make a change to the material nature and essence of the property and the way it’s been advertise and marketed to homeowners, and that’s discussed in your documents, you have to go through the amendment process,” he adds. “And in some instances, you can’t amend without unanimous consent.”
Is having these animals material to the nature and essence of this HOA? Hard to say. “Right now, I’m dealing with a golf course issue, where our client is looking at purchasing the golf course portion of a property,” explains Scott. “The question is whether the owners who abut the golf course property have some right to prevent the sale and discontinuance of the golf course as part of the ambiance of the property.
“Over the years in Florida, there have been many developments where a golf course was part of the hook for developers to offer buyers, but they’re not so much a hook anymore because of the expense,” he says. “Many buyers have finally wizened up and said they don’t want to pay a five- or six-digit fee for a golf membership.
“But in the case I’m dealing with, the association documents didn’t make the golf course a part of the documents,” says Scott. “Those owners, however, are arguing that through some kind of legal concept like estoppel or an equitable argument, the developer duped them into buying long ago and the board can’t change the amenities now—that they have a right to keep this amenity that they don’t pay for but is right next to their neighborhood.”
It’s funny Scott used the word “duped.” Though she’s not an attorney, a Texas manager offers similar advice and uses the same word. “I’d say that you should as a general rule never waive the provisions in the governing documents,” notes Mary Arnold, CMCA®, AMS®, the Austin, Texas-based national director of training and community association management support at RealManage, an association management firm headquartered in Dallas, Texas, that oversees properties in Arizona, California, Colorado, Florida, Louisiana, Nevada, and Texas.
“When people are looking at buying a home, some homeowners are astute enough to ask for the governing documents and actually read them,” she says. “Maybe the governing documents say that commercial trucks aren’t allowed. That homeowner says, ‘Good, I’m not going to look at commercial trucks if I live there.’ If the board ignores enforcement of that provision, that homeowner may feel like she’s getting duped. If you start waiving governing document provisions, I’d think the board has some exposure there.”
But there can be exceptions. And one of our experts says this entire debate may be moot with some creative lawyering. Find out more in our new article:
https://www.hoaleader.com/members/3817.cfm
Best regards,
Matt Humphrey
President
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Recent articles posted at HOAleader.com:
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When Can You Waive Provisions in Your Condo/HOA Governing Documents (to Allow Hunting)?
A board member asks, The short version of this is that our CC&Rs prohibit hunting on our properties, being more restrictive than the county rule, which allows hunting if you own 10 acres or more. Our association has exotic animals along with whitetail deer. We trap our exotics as necessary; there are no state rules on exotics.
Click here to read full article:
https://www.hoaleader.com/members/When-Can-You-Waive-Provisions-in-Your-CondoHOA-Governing-Documents-to-Allow-Hunting.cfm
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Easier Enforcement of Your HOA's Rules: Steps to Create Enforceable Rules, Effective Fines, and a Fair Violation Process
Did you miss yesterday's webinar on HOA Rules? If you did, you missed a great session -- but it's not too late! You can still order the on-demand version and watch the recorded webinar at your convenience.
Enforcing rules doesn't have to be a pitched, tense, and unpleasant battle between your homeowner association board and your homeowners. With some smart planning, you can make enforcing your HOA's rules fairer, quicker, easier, and less stressful. Watch this in-depth webinar led by two community association experts: a lawyer with more than a decade of hands-on experience in advising associations on how to create and enforce rules, along with a veteran association manager and recognized educator with insights on the day-to-day operations of rules enforcement. You'll get practical ideas, systems, and processes you can begin to take advantage of at your association the minute the webinar ends.
Click here to read full article:
https://www.hoaleader.com/products/easier-enforcement-of-hoa-rules-b.cfm
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6 Steps to Safeguarding the Personal Info Your Owners' and Residents' Give Your Condo or HOA
In this week's tip, we ask if you're doing enough to protect your owners' and residents' personal information. Here's the deal: You likely have your owners' and residents' email addresses. Phone numbers, too. Certainly mailing addresses, right? And you may have more than that depending on the amenities and services your condo or HOA offers. For instance, you may also have a credit card on file to pay for incidentals at your clubhouse.
Click here to read full article:
https://www.hoaleader.com/public/6-Steps-Safeguarding-Personal-Info-Your-Owners-Residents-Give-Your-Condo-or-HOA.cfm
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Privacy Laws and Your Condo/HOA's Data: 6 Steps to Protect Owners' Data
You likely have your owners' and residents' email addresses. Phone numbers, too. Certainly mailing addresses, right? And you may have more than that depending on the amenities and services your condo or HOA offers. For instance, you may also have a credit card on file to pay for incidentals at your clubhouse.
Click here to read full article:
https://www.hoaleader.com/members/Privacy-Laws-Your-CondoHOAs-Data-6-Steps-Protect-Owners-Data.cfm
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