Neglecting Your HOA: Legal Implications and What You Need to Know

The Law and Your HOA: What They Can and Cannot Do

Most Homeowners Associations (HOAs) have the legal authority to force you to abide by their rules and regulations as long as they have correctly followed the procedures set out in Florida Statutes Chapter 720. They also have the legal authority to enforce the collection of assessments that you have agreed to pay to your HOA pursuant to the governing documents. They usually have the ability to go after you if you ignore your obligations to pay assessments. Ignoring your HOA’s rules and its demands for payment may not be a good obstinant strategy for common sense reasons but also for legal reasons.
Florida Statutes Chapter 720 governs the conduct of HOAs and what rules HOAs may have. In general, the statutes allow an HOA to adopt rules regarding the use of the Common Area, which are enforced with penalties. Both the rules and the penalties must be "reasonable". The statutes also allow an HOA to assess fees for particular services, enforce penalties for not paying fines for rule violations and initiate legal action to collect assessments and other fees . There are many other provisions in the statutes that affect what an HOA can do including expanding definitions of "Common areas", allowing fines and suspending an association member’s ability to use certain amenities for not paying assessments or other fees, and describing members’ rights that HOA must abide by. However, for purposes of this discussion, the HOA has legal authority to adopt rules. As a result, HOAs must act according to what their governing documents allow and follow the procedures that are required, such as correct notice, opportunity to attend a meeting on certain topics, correct voting procedures, etc. If the HOA fails to follow the required procedures, the HOA’s actions may not be enforceable. For example, if the HOA failed to give adequate notice of a rule, even though the rule was adopted, it may ultimately not be enforceable. Floridians are generally given a lot of procedures and rights under Florida law to contest wrongful actions. With proper representation you should be able to contest any abuses vigorously.

The Lawful Repercussions for Ignoring Your HOA’s Rules

A homeowner who chooses to ignore rules imposed by his or her HOA may be hit with a significant fine. Usually, the fine is imposed after some preliminary communication and it is meant to get the attention of the homeowner. Fines are also usually progressive in nature; meaning that they are cumulative and the amount usually increases after each subsequent infraction. If a fine fails to convince a homeowner to adhere to the rules, or if the infractions continue, a homeowners association may issue a lien. A lien essentially means that a charge will be assessed against the homeowner’s property – much like a second mortgage. A homeowner with a lien must satisfy the lien before they can sell or refinance their home.
If a homeowner ignores a lien, the HOA can initiate a foreclosure action to collect the delinquent amounts. A foreclosure action is a legal proceeding. The HOA will usually hire an attorney to prosecute the foreclosure action on its behalf. This process can be lengthy and costly, and therefore usually results in homeowners getting stricter in their adherence to the rules.
Would-be purchasers and lenders who ignore the rules that are imposed by HOAs tend to get stuck in similar situations. If a purchaser fails to disclose and address violations, he or she may find themselves exposed to extensive fines and potential foreclosure. If a lender fails to disclosure and address liens, and a foreclosure action is commenced, the lender may be stuck foreclosing on a piece of real estate that has an extensive lien against it, lessening the value of the property and effectively reducing the lender’s ability to sell the property.

Can You Ever Legally Ignore Your HOA?

Although we’re not lawyers, there is a situation involving homeowners associations which may make complying with the rules impossible or unreasonable. In such scenario, a homeowner may find it necessary to ignore its homeowners association.
Suppose that an HOA has adopted rules about parking in the community. Unfortunately, the association decides to enforce the rule by towing non-compliant vehicles from any parking space, even though some residents do not have reserved spaces. It could be that someone is injured while being towed, or that property damage occurs when a vehicle ends up being scratched or damaged while being towed. If the offender is the HOA itself, then it’s possible for the courts to find they are liable for the resulting damages.
If a homeowner finds themselves in a situation where they have been discriminated against or singled out for enforcement of the rules, or the rules themselves are unenforceable, it will be important to talk to a lawyer to find the best possible solution.

Case Studies: Insights from HOA Legal Battles

One of the most publicized HOA conflicts, according to Nolo, occurred in 2009 when the HOA of Arbeen Conditioning Corp. slapped the home of 75-year-old John Harris Sr. with multiple violations for a single Christmas decoration that hung from his eaves. John, his wife, and their five adult children took down every Christmas decoration after 10 years of very littler pushback. According to their HOA, it didn’t want to appear arbitrary to selective enforcement because the association viewed it as discrimination against a display that was controversial in the community . Discrimination was far from the intent. The HOA just wanted the greens on the wreath to match the house’s eaves as is common practice in the area. John Harris won his battle with the Homeowners’ Association in 2011 when a New Jersey jury declared he did nothing wrong. The Harris lawsuit fueled a public relations nightmare for the association. The HOA spent $200,000 defending a $1,200 lawsuit (only to lose), and the case received national media attention. The message was loud and clear: Your HOA can’t arbitrarily enforce its rules.

Resolving Disputes With Your HOA

Resolving conflicts with an HOA generally starts by following the same protocol we laid out in a previous blog. You should:
Assume the HOA Initiatives are Rational and Properly Noticed Under the circumstances, we should assume the HOA’s initiatives are the product of the HOA Board’s reasoned decision-making process. The governing documents should explain the extent to which the Board is required to share its deliberations and those of committees, working groups, and task forces. If the notices and meeting minutes do not demonstrate the HOA’s efforts to make rational DOP’s and advises, you may want to ask for clarification.
Ask the Question: What’s the HOA’s Demand? What Are the Grounds for It? When a notice or communication from your HOA contains any form of DOPs (including, fines, special assessments, rules, restrictions, architectural control) that go beyond basic business matters, such as the minutes and financials, it should contain a description of the HOA’s action and the evidence and reasons it orders the dispute addressed in ways that you can understand. For example, if the HOA’s DOP requires you to plant petunias rather than begonias in your garden, it should explain why the Board believes petunias are better . Are they a native plant that requires less water? Do they bloom longer?
Pursue Negotiation or Mediation When an HOA insists on its position, despite asking questions to understand its position and explaining the reasons it appears to be unreasonable or inconsistent with the evidence, it may be time to pursue negotiation or mediation. For example, an HOA board can insist on a DOP that requires a homeowner to plant petunias at their expense, because that will improve the aesthetics of the HOA to the benefit of all members and the protection of property values, but the neighborhood nurseries don’t have any petunias in stock.
Ask the Board to Certify or Revisit the Dispute or Take the Dispute to Court When negotiation or mediation do not result in change, the homeowner might ask the HOA board to revisit the DOP, it can insist on its position, and/or the homeowner can take the dispute to court. If this course is followed, it is critical that the homeowner’s attorney ensures that the litigation progress is documented in ways that help the homeowner at trial or appeal by others, including future owners of the homeowner’s home.
Consideration must be given to the HOA bylaws’ or rules’ provision for attorney fees and fines. Prevailing parties, inside of when seeking punitive damages, must follow the Hawaii Supreme Court ruling in Ass’n of Apartment Owners of Newtown Meadows v. Venture One. 137 P.3d 1185 (Haw. 2006), cert. denied, 549 U.S. 1329 (2008). A party that prevails in making a point may win the battle yet lose the war over costs.