Imagine coming home one evening from work to find a certified letter from your Homeowner Association. Enclosed is a notice of violation informing you that the Association’s Landscaping Committee performed a review of the landscaping in your front yard and determined that you have unauthorized shrubs and trees in your yard. The letter further advises that the plantings are to be removed at your expense within 30 days. Attached to this letter is diagram and itemized list of all the plants and trees that are to be removed. It’s hard to believe that anyone in control of a Homeowner Association could be so petty, but it actually happened.
How does a homeowner who has resided in his home for 7 years and had not planted or removed anything in his yard during this entire time end up with this day making valentine? He never received a notice of violation for anything. He was, in fact, a model homeowner.
It turns out there had been a significant change of power on the Homeowner Association Board of Directors. As part of that change a new board member, who also happened to be a landscape architect, decided to take charge of the community landscaping and aesthetics. He essentially charged himself (with board approval) the task of reviewing all the landscaping in the community to be sure it was aesthetically pleasing and “conforming” in order to protect the real estate values of the community. Wait, this gets better.
It was his opinion as a landscape architect that there were a large variety of “non-native, exotic, or invasive” plant species in the community, most of which he pointed out in his report were planted by homeowners themselves. It should be noted that a “non-native” plant species is one which is not indigenous to a particular horticultural zone. This is not to be confused with “exotic” or “invasive” species, the latter of which are also non-indigenous, but also threatening to the eco system because they eventually crowd out the native vegetation. Florida enacted a law many years ago banning invasive and certain exotic species of plants.
Naturally, the Board of Directors embraced this man’s recommendations and without hearings or the ability to comment by the residents, certified letters were sent to all the residents informing them of the Board's decision. About 60 days after this homeowner received the threatening missive, and despite a request for a hearing by the homeowner, the Homeowner Association had its landscaping contractor remove all of the vegetation they had designated in their violation notice from the property. When the homeowner arrived from work one evening, he found shrubs and other plantings removed and piled on the curbside. He also found a bill for the services taped to his door.
A Homeowner Association has its place and can do good things for a community if laws and common sense prevail. Unfortunately, as in this example, common sense and the law didn’t prevail. This homeowner’s private property was invaded and violated without any form of due process. The Board acted arbitrarily solely on the advice of an over zealous board member with an obvious personal agenda.
Unfortunately, homeowners have little recourse. Certainly a property owner can file a lawsuit against the Board of Directors and the Homeowner Association, but most homeowners do not have the resources to 'out gun' the financial resources of the Homeowner Association. In addition, property owners, no matter how heinous the actions of the Board, seldom win in court. And even if you do file suit, you're essentially suing yourself. Whether you win or lose, the costs of that battle are carried by all of the residents regardless of the outcome. And, the Homeowner Association has the power to levy assessments to cover any losses they may incur in the event you prevail.
Professional property managers and attorneys are no help, either. The livelihood of these folks depends on pandering to the whims of the Association Board of Directors. Attorneys and Property managers encourage actions like turning off resident gate access or deactivating electronic access to recreational facilities as penalty for non payment of dues. Siccing attorneys or collection agencies on homeowners who are delinquent on their dues further exacerbates financial difficulty by allowing outrageous fees and penalties which are often greatly disproportionate to the amounts in arrears to be added to the bill. Nevertheless, these actions continue because it is expedient and because it is encouraged by the very people who get paid to do it, which if not a conflict of interest and very unethical, should probably be illegal as well. Who's advocating for common sense here?
The fact remains that the playing field needs to be leveled. Homeowner Associations are not toys to be tinkered with at the whim of Board members. Providing procedures to redress grievances and to ensure due process for homeowners, especially in matters concerning fines, liens and other financial penalties are overdue. Reigning in the use of attorneys and reducing by statute fees that can be charged to handle tasks such as filing liens, handling foreclosures, or collecting overdue association dues need to be part of any reforms. Perhaps Condominium and Homeowner Association Boards should have at least one non-resident member who serves as an advocate voice for the property owners.
Folks who live in the city or suburbs have rights clearly defined by city or county ordinance. Commissioners or Board members can not act arbitrarily or conduct business outside the scope of the law. Residents who violate an ordinance are given an opportunity to be heard and to correct a violation before punitive action. And, no resident can be kept from his or her property simply because a violation occurs. Even cases involving serious violations such as those that endanger other residents, cannot be acted on without hearings and often times court orders. Why then should residents who live inside developments governed by Homeowner Associations be treated differently?
Private communities do add value. From a real estate standpoint, communities that are well managed, maintained and have nice amenities typically have higher real estate property values. An important thing to remember when purchasing a home in one of these communities, however, is to consider the governing documents and the reputation of the Board and management company. You should inquire as to how consistent the management has been. Are there any known legal actions between residents and the Association? How do residents feel about the Association and its management? Check to see how many amendments, bylaw or rule changes have been made over the years. Are there adequate financial reserves? Have dues continued to rise or have they remained stable over the years? And by all means, if you decide to become a board or committee member, remember that having power to do something doesn't mean you should do that thing.
If you have a story about abuse by your Condominium or Homeowner Association, I'd like to hear from you. You can send your comments to me at stephen.snow@century21.com.
