Q: I live in a gated community of houses. Our community has bylaws, the usual ones, and our board of governors historically has been fair, balanced and friendly.
We now have a situation with a homeowner who will not comply with the bylaws pertaining to home maintenance (we maintain our own homes and yards.)
He neglects his lawn, while also overplanting his lot with all kinds of fruit trees and palm trees. He has decorative items everywhere and has been landscaping and removing shrubbery from behind his home. This area behind his home is a common area, and he has encroached about 20 feet into it. He also built a very large swing set behind his home without approval of the architectural committee or the board of governors.
He has been sent many, many violation letters and has accrued a fortune in fines, all to no avail. Our HOA lawyer says there is nothing we can do but place liens on his property. But he just keeps doing whatever he wants.
What can we do? His neighbors are upset because his property affects the curb appeal of their homes. He is a nasty man and refuses all efforts to discuss this or obey the bylaws.
Must we put up with this? Fining him does not work ... he refuses to pay them and so they sit.
– Frustrated in Paradise
A: Dear FIP, you are not alone. Most communities at one time or another have to contend with owners who willfully fail to comply with the restrictions that they agreed to when they purchased their homes. I am not sure what motivates these individuals, and I suppose there can be all kinds of reasons. Some may believe that the rules simply do not apply to them, or are unenforceable.
Others may have been bullies in school and suffer from a case of arrested development. Some may suffer from some form of mental illness that affects their actions. And some may have a real problem with authority, and when asked to comply will respond with a figurative (or even literal) "make me!" I pity any board that has to deal with someone who may have some or all of these factors in play, but it happens all the time.
What is clear is that an owner who ignores repeated requests for compliance and even seems to escalate their actions in response to the requests is not someone easily reasoned with.
"Talking it out" over coffee and apple pie is probably just never going to happen. So what to do?
Readers often ask me to address the issue of an owner who has been violating the rules for years, despite repeated requests for compliance. My first thought is to question what the board has done to fix the problems. If the board threatens action but never takes it, the owner may rightfully believe that the board is nothing more than a paper tiger.
Enforcing restrictions is not fun, inexpensive or easy. A community has a number of tools in its tool box to compel enforcement and recover its costs and attorney's fees, but none of them are perfect.
You mentioned that your HOA has an attorney, who has recommended further action. Meet with the attorney and develop a plan of action. Inaction will keep you how you are, frustrated with a recalcitrant owner who throws your attorney's "sternly worded" letters into his circular file, ignores the fines that are never collected, and thumbs his nose at the community every time he drives in.
THE ROLE OF HOAS
I received an email this week from a reader who believes that condominiums and HOAs are a "curse on the public" and a "subterfuge for counties and cities to unload their responsibilities."
Because he believes these communities create private enclaves and transfer the expensive costs of the community's infrastructure from the government to the residents, they should be called "Fortress Flori-duh!"
I respectfully disagree.
Although the reader believes that planned communities require volunteer boards to administer their properties and that "many who serve are legal and tech illiterates," would government control be better?
The late Tip O'Neill, former speaker of the U.S. House, famously said, "All politics is local."
The more local governance is, the more accountable it is. Planned communities have helped make Florida what it is, for better or worse. Would you want to get a tax bill that includes the expense of maintaining others' beachfront properties? Turning over the operation of private communities would cripple a government that is already too big and often inefficient.
It also would cripple communities whose representatives have to make responsible decisions for their constituents, including themselves.
I would rather have my neighbors decide when our building should be painted and when the grass should be mowed than have the government do it, even if government representatives told me they really are "here to help."
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
