Article Courtesy of Miami
Herald
By L. Chere Trigg
Published July 9, 2023
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In
the minds of many Americans, community associations have a negative image for
overzealous rule enforcement by board and committee members who love to raise a
fuss over the slightest transgressions. To avoid living up to this negative
stereotype, associations and their boards of directors should always pursue
violations and enforcement matters as reasonably, uniformly and transparently as
possible.
By their very nature, violations and enforcement matters can be very contentious
and therefore difficult to manage, making them a challenge for directors and
property managers. The associations that do it best are typically those that
make effective use of independent committees, open hearings and published
guidelines.
Among the most common disputes are those involving unapproved improvements and
alterations to properties in communities that require a board’s or committee’s
prior review and approval in order to maintain aesthetic standards. One such
example involves a lawsuit that was recently filed by the association for the
Fieldbrook Estates community in Boca Raton, Florida, against one of its
homeowners over the unauthorized removal and installation of a fence and the
painting of their home in an unapproved color.
The association’s lawsuit, which was filed in the circuit court for Palm Beach
County on May 9, states the dispute began this February when Umit Yigit, the
homeowner, and his tenant Michael Trussell painted the exterior of their home a
different color without first applying for approval from the community’s
architectural review committee. Matters then escalated in April when the owner
and tenant removed a safety fence enclosing their swimming pool, again without
seeking prior approval from the association’s architectural committee nor from
Palm Beach County, which requires swimming pool safety fences. As such, the
unapproved removal of the fence not only violated the association’s governing
documents and county regulations, but also posed a safety risk for the
community.
Shortly thereafter, the owner and tenant applied for approval for the removal of
the safety fence with the association’s review committee, but they then brazenly
moved forward with another significant unapproved alteration during the ensuing
30-day review period and allegedly began installing a new perimeter fence
comprised of unapproved posts and wire materials within the community’s 20-foot
maintenance/drainage easement area.
The owner and tenant were immediately advised by the association to stop the
unauthorized installation pending the submission of an application for review by
the committee, but the suit states they later proceeded with the installation of
the unapproved wire fencing material in direct violation of the association’s
governing documents. Included with the complaint are emails between the
association’s attorney and the homeowner, who writes that he is being
discriminated against by the board of directors and the matter would make for an
excellent local TV news story.
The lawsuit seeks a judgment against the defendants for damages to be determined
by the court as well as an immediate injunction ordering them to remove the
newly installed unapproved fence, replace the pool safety fence, and repaint the
home to the prior color. Otherwise, the injunction would allow the association
to have all of the restoration work performed at the owner’s expense.
As I indicated, disputes involving unapproved alterations and improvements are
somewhat common in sprawling HOA communities with large homes such as Fieldbrook
Estates. The best approach, which is often prescribed in their associations’
governing documents, is to utilize an architectural review committee of
volunteer owners who are independent from the current board.
As in this case, the association’s rules will typically require the prior
submission of descriptions and plans for the proposed changes to its
architectural review committee for consideration and approval. The committee
should meet regularly, especially when the community has numerous requests and
submissions for review and approval, and its deliberations should be open to all
interested owners and allow for their input, just as with the HOA board
meetings.
Assuming that the association in this case and its architectural committee have
acted irreproachably in administrating the community’s architectural standards,
the chances are high that it will prevail in lawsuits such as this against
owners who allegedly completely flouted the community’s review process. Owners
and their tenants should never try to disregard and circumvent their community’s
required review and approval process, and HOAs should strive to make their
reviews and decisions as transparent, reasonable and unimpeachable as they
possibly can.
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