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Homeowners Association Legal Issues: More Common than You May Think!

October2015

by David M. Russell 

 

Many people live in neighborhoods where a homeowners association has rules in place. We recommend that you read your HOA contract carefully in order to ensure that you are abiding by the rules. Sometimes legal issues still arise between a homeowner and the HOA, and we are here to assist you if that occurs. 

We are currently in trial, defending a client against his homeowner’s association, which is seeking a permanent injunction to require our client to remove an improvement he made to his own property. In preparing for this trial, we came across a case, Young v. Tortoise Island Homeowner’s Association, 511 So. 2d 381 (Fla. 5th DCA 1987), which highlights the importance of understanding restrictive covenants before purchasing property in a deed-restricted community.

In Young, a couple purchased a plot of land in the Tortoise Island subdivision in Brevard County, Florida. Id. at 382. Prior to purchasing this property, the couple drove around the subdivision and carefully looked at the residences built there. Id. There were approximately 250 lots in the subdivision, and, at the time, about half of them had been developed. Id. Notably, there was no one common architectural style employed by the owners of the residences in Turtle Island. Id. Instead, there were a variety of styles, ranging from oriental to contemporary. Id. There was also a range in roof styles, from hipped and gabled to flat. Id.  The couple desired to construct a French Provencial-style home with a flat roof and submitted plans for this home to the Architectural Control Board of the Tortoise Island Homeowner’s Association. Id.

The reason the couple submitted plans to the Architectural Control Board is because Tortoise Island was a deed-restricted community. See id. Thus, lots in the Tortoise Island subdivision were subject to certain restrictive covenants that imposed extensive building requirements. Id. These requirements included, among other things, the following limitations: all homes had to be single-family residential units; the maximum height was two stories; homes could only have three-car garages; there could be no separate guest house or out-buildings; homes had to be a minimum of 2,000 square feet floor area; garage doors could not to face the adjacent street; there were setback restrictions; limitations on swimming pools, decks, patios and screens; the height and location of fences was limited; there were regulations of boathouses and docks; and there were prohibitions against filing or subdividing, signs, certain animals and clotheslines. Id. There was also a restriction regarding roofs which required that they be constructed from clay tile, heavy split cedar shake, or other materials approved by the Architectural Control Board. Id. 

In the couple’s case, the Architectural Review Board denied their application out of concern as to how the flat roof would fit into the development aesthetically. Id. at 383. After the Architectural Review Board denied the couple’s application, the Tortoise Island Home Owners Association commenced a court action to stop construction of the couple’s residence and a preliminary injunction was issued after the couple’s house was partially constructed. Id. At the conclusion of the trial, the trial court concluded that the Architectural Control Board had the authority to impose a prohibition against flat roofs and that it had timely rejected the couple’s proposed building plans. Id.

The trial court’s decision was subsequently reversed by the Fifth District Court of Appeal. Id. at 381. In reversing the trial court, the Fifth District noted that “[i]n the absence of an existing pattern or scheme of type of architecture which puts a prospective purchaser on notice that only one kind of style will be allowed, either in the recorded restrictions or de facto from a unified building scheme built on the subdivision, [an architectural control board] does not have the power or discretion to impose only one style over another, based purely on ‘aesthetic concepts.’” Id. at 384. The court then concluded that because the flat roof design of the Young’s home violated no recorded building restrictions, no objective rule adopted by the [Architectural Control Board], and no de facto common existing building style in Tortoise Island[,] . . . [i]t was . . . beyond the power of the [Board] to devise and impose a flat roof prohibition under the facts of [the] case.” Id. The court ultimately held that the Board’s actions “were unreasonable and arbitrary.” Id.

Although the couple in Young ultimately prevailed, it took a long drawn out legal proceeding before they were able to complete their desired home. Further, the main reason they prevailed was because Tortoise Island was not your typical subdivision with a consistent architectural style and there was not a specific deed restriction that prohibited flat roofs.

In order to avoid a legal proceeding like the one the couple faced in Young, it is important to remember that restrictive covenants which are clear will generally be enforced by courts. See Hagan v. Sabal Palms, Inc., 186 So. 2d 302, 309 (Fla. 2d DCA 1966). As a result, it is relatively easy for a Homeowner’s Association to obtain an injunction against a homeowner within its community. For example, something as simple as installing a satellite dish, when there is a clear covenant restricting the erection of television or other outdoor antenna, may lead to an injunction. See Latera v. Isle at Misson Bay Homeowner’s Ass’n, 655 So. 2d 144 (Fla. 4th DCA 1995). Accordingly, before purchasing property in a deed restricted community, it is important for a prospective homeowner to learn of any and all restrictive covenants that may impact their desired use of the land, and if they have any concern regarding how a specific covenant may impact a planned improvement to the property, they should contact a lawyer for advice.  

 

 

 

 

Pappas & Russell Attend Power of the Purse Fundraiser

August 2015

The attorneys of Pappas & Russell recently had the pleasure to attend the Power of the Purse luncheon and silent auction. This fundraiser lends support to the United Way Women's Initiative of Volusia in order to support women and children in the Volusia and Flagler communities.The luncheon and auction were a great success, and we enjoyed spending time with other members of the Volusia and Flagler county communities. Thank you to the United Way and to the Women's Initiative for all of your hard work! 

 

 

Preparing for your Initial Consultation with an Attorney: A Legal First Date!

August 2015

by George Pappas

 

 

In the lifetime of most people, there comes a time when a visit to an attorney is necessary. The initial visit can be a stressful occurrence for some people, even if the visit is for something as benign as the preparation of a Will. It doesn’t have to be stressful. Remember, the attorney is there to help you. Below are some helpful tips for the initial conference between the attorney and client.

It’s important to remember that the communication between you and the attorney is confidential. That confidentiality is the bed rock of legal representation. It is sacred. This means you can and should be completely candid with the attorney. An attorney can only help you to the best of his or her capacity if he or she knows all the facts you know. Most importantly, since what you tell the attorney is confidential, you should feel at ease discussing the issue at hand at each consultation. Do not be afraid to ask questions. If it helps you to remember your questions, write them down before you go to your initial conference. No question is silly or stupid. The legal system is a very old system
(rudimentary negligence laws were established in the Old Testament), which means the legalese can be difficult. Sometimes the laws don’t even seem logical. That is why lawyers complete three years of law school, annual continuing education sessions and continue to “practice” their entire lives. It is impossible to have an in depth knowledge of all laws, and good attorneys continue to learn every day. So remember, no question you ask is unimportant. In fact, the more questions you ask, the deeper understanding the lawyer will have of the issue you are discussing. A good lawyer is a good listener.

Arrive at the initial conference (and all subsequent consultations) as prepared as possible. If you have documents you think are important, bring them. If you have been arrested and have possession of the police report, bring it. If you are seeking a divorce, try to bring the family accounts and property information. If you want a Will prepared, seriously consider who your beneficiaries will be, who your personal representative will be and how you want your property distributed. Whatever the issue may be, try to gather as much information as you can to bring to your initial conference. 

The initial conference with an attorney is an important conference - possibly the most important. It is the time when the attorney sizes up your case and you size up the attorney. If you are not comfortable with the attorney, do not hire him or her. The attorney/client relationship is an important relationship, almost as important as the doctor/patient relationship. No matter how qualified the attorney is, according to your friends or television advertisements, if you are not comfortable with that attorney, you will not be happy in the long run. If you are not happy with your attorney, find another one. After all, you deserve to have your legal rights represented by someone whom you can respect and trust.

 


 

 

 

 

Why Learn More About Pappas & Russell?

July 2015                            

 

Thank you for visiting the Pappas & Russell blog and news section! We are pleased to begin sharing exciting news and interesting articles and advice written by our attorneys in this section of the site. You can expect to learn about relevant and timely legal issues that you may hear about in the news, answers to common questions related to our areas of expertise and maybe even a top 10 list from time to time!

So why choose to visit the Pappas & Russell website and learn more about us when you could research one of the hundreds of other lawyers in the Volusia county area? Well, we like to think we’re pretty special! Our firm was established by David B. Russell and George Pappas in 1993 and handles a wide variety of legal issues ranging from personal injury and divorce to criminal and civil litigation. We believe in treating our clients with the respect and dignity they deserve while fighting for fairness, justice and equality in and out of the courtroom. With more than 45 years of combined experience, you know you can trust the attorneys at Pappas & Russell. We have the friendliest staff and even promise not to answer your questions in legal-ese!

We would also like to introduce our firm’s newest attorney, David M. Russell. David brings a youthful point of view yet a wealth of knowledge as he joins the firm after being employed as an Assistant State Attorney at the Seventh Judicial Circuit State Attorney office and as a judicial law clerk at the Fifth District Court of Appeal. His knowledge of patent law, appellate law and criminal law are an invaluable addition to the firm.

We encourage you to check back for updated blog posts and post comments and feedback. You can even let us know what you would like to read about in future blog posts! Contact us at  386-254-2941 or by completing the ‘Contact Our Office’ form that can be found on our website. We are sure you will be thrilled by our dedication and determination to succeed for you, and we would love to prove it to you by providing you with a free consultation. We look forward to hearing from you!

 

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