Legal Articles

Pet Perspective
Controlling pets in a homeowner association can be a wild goose chase that leaves you barking up the wrong tree. It’s important that you deal with the issue in a way that is controllable and minimizes potential for confrontation. Posting the rules is fine although problematic. Rules signs are often more intended for the non-pet owners just like locks keep your friends out.

You think you have animal control problems in your homeowner association? Forget the barking dogs and stray cats! Just look at this notice posted by of Brevard County Florida’s Suntree Homeowners:

Alligator Safety Tips

Don't bother them and usually they won't bother you.
Don't swim outside posted swimming areas or in waters that might contain large alligators.
Don't swim at night.
Don't feed alligators. It causes them to lose their natural fear of humans.
Don't throw fish scraps into the water or along the shore.
Don't allow dogs to swim in areas used by gators. Many dogs are killed by alligators.
Don't kill, harass or attempt to move an alligator.
Don't try to make a pet of a gator.
Don't play with baby alligators. The mother probably is nearby.

[It’s interesting that Suntree Homeowners actually worries about their residents doing these things. I’m more worried about the residents than the gators.] (

The three main pet issues are:
1. How they impact the common area
2. The noise and smell they create, and
3. The threat to safety they pose.

While most pet owners are sensitive, some get immune to the negative aspects of their pets. Example: A dog that is allowed to bark all day and night when its owner is home. So, a pet policy is always needed. As you shape a policy for your community, make sure it’s compassionate. People and their pets have an extremely close bond that is sensitive to criticism. Make sure it’s fair. Rather than ban pets, look for ways to make them work. Most pet owners will respect the rules. The few that remain may need special "encouragement".

Pets are here to stay...or sit...or rollover. So keep a healthy perspective on the issue. Woof! Meow! Hissssssssss! BACK

Signing Off
One of the bones of contention in homeowner associations is the ability to display signs. Free-speechers feel it’s protected speech under the Bill of Rights and their sign rights should never be infringed while the community censors advocate "sign free zones". The ideal is somewhere in the middle.

One of the attractions of living in a homeowner association is the ability to control the look and feel of the community. This is achieved by adopting standards that all residents must follow. In homeowner associations, uniformity reinforces value while extremes generally detract. This principle applies to signs as well. When sign size, subject matter, look and location are not controlled, they detract from the community’s residential character.

When it comes to size, the basic 18" x 24" real estate sign usually passes muster. Smaller is better but bigger is not. There are several types of signs that are generally permitted: For Sale, For Rent and Garage Sale. Where they are placed is an issue. Nailing signs to trees and fences is destructive and shabby looking. Requiring them to be mounted in metal frames like used by real estate agents is a reasonable standard. The numbers of signs should be controlled. In difficult to navigate communities, multiple Burma Shave like directional signs may plot a path through the neighborhood to the goal. One directional sign with the address on a main arterial street will suffice.

Sign type, size and placement restriction is good policy. While free speech has many forums, posting opinions on signs is not proper for homeowner associations. First Amendment advocates may fight the restrictions but most owners will understand and comply. Establish a reasonable compromise and deal with the rest on a case by case basis. BACK

Resale Revelation
A buyer exploring the complexities of home acquisition is often in for wild ride. It is a place of mystery where few should venture alone. Most opt instead to use a guide called "Realtor" accomplished in both hand holding and Dream Home location. To "seal a real deal", buyers typically need financing and the Three Ls (location, location, etc.). Yet there is an equally important consideration known as "resale disclosure". Without it, "caveat emptor" (buyer beware) is a frightening reality.

Resale disclosure means divulging information that any prudent buyer would want to know. Such as: Are there any known structural, wiring or plumbing problems? Does the basement resemble an indoor swimming pool during the rainy season? Does the house have a Chernobyl-like glow? Is there evidence of radon or lead base paint? (Inquiring government watchdogs want to know!). Was this location ever a "crack" house or drug lab? Single family house sellers are required to disclose a host of information that may result in buyer back out. And no wise real estate agent allows a transaction to close without "full" disclosure because it’s often the agent that suffers the buyer’s wrath for seller omissions.

Curiously, resale disclosure is alarmingly absent when it comes to most homeowner association home sales. And this is very disturbing considering the substantial liabilities and financial obligations which are unique to owners of HOA property. Unfortunately, many real estate agents simply aren’t educated about the issues. And many associations do not maintain the kind of disclosure information buyers need to know.

So what kind of "liabilities and obligations" does an HOA owner have? Example: When a condo buyer gets a unit inspection, good or bad it reveals nothing about the buyer’s financial responsibility for all the neighbors’ condos and the common area buildings, amenities and grounds as well. If the other units are riddled with dry rot, the buyer will have to pony up a share of the repair costs. A home inspection won’t forewarn these problems. If the owner, property manager or board aren’t quizzed about known defects, the buyer often won’t know until after closing. This invariably results in Unhappy Camper Syndrome. What should be a happy event turns into a disaster. Avoidable? Absolutely!

HOA homeowners are also personally liable for lawsuits to which the association is a party. While the association should carry a substantial liability policy, many don’t leaving board members and owners exposed to potentially large personal judgments. Don’t you think buyers would like to know about the association insurance and any litigation that is being bandied about? Indubitably!

Here’s a Resale Disclosure Checklist that an informed HOA buyer should have to reveal a true and complete picture:

A statement of any special assessment approved or anticipated;
A statement of regarding the status of the owner’s account;
A statement of the status of the reserve account for repair and replacement of common area components with useful lives of 3-30 years;
A copy of the association's current budget, year end balance sheet and income statement for the previous fiscal year;
A statement concerning any litigation or judgments to which the association is a party;
A summary of the association insurance policies that includes the insurance carrier(s), types of coverages, policy limit of each coverage and deductible, if any;
A statement that the unit and its limited common elements are not in violation of the architectural guidelines due to alteration or addition.
A copy of the current bylaws, declaration, resolutions, rules and regulations and architectural guidelines adopted by the association plus any amendments.
Approved minutes to past year’s Board and Homeowner meetings.
Newsletters for the past year.

Some HOAs are reluctant to provide this information even if they have it as it may be incomplete or inaccurate. Most courts rule that the association has no financial interest in the outcome of a sale so has no duty to disclose. However, many associations, wishing to be helpful, provide certain information to purchasers and their banks. Ironically, once a disclosure is voluntarily made, courts have found that the information provided must be accurate. Therefore, the association, legally speaking, is better off providing no information than to provide any. To overcome this problem, some HOAs use a custom disclosure form with a "weasel clause" which states something like "This information is believed to be correct, but the lender/buyer should independently verify all information".

The board is caught between a rock and a hard place: If information is provided to the buyer that causes the sale to fail, it may be sued by the seller to whom it owes fiduciary duty. If it fails to disclose information to the buyer that might have prompted the buyer to back out, the new owner may attack like a rabid pitbull because of omission or concealment. To navigate this fine line, some associations provide information only if the seller and buyer authorize the release of it and agree to indemnify (protect and defend) the association for any information it releases. If the buyer and seller don’t agree, no information is forthcoming. Further, information provided to lenders is on an association form and conditioned that the information will not be disseminated to third parties.

Thus, the quandary: How does a HOA buyer get the "straight scoop"? It’s wise to talk with several knowledgeable residents about what’s going on. Knocking on a few doors will often produce a huge amount of insider information in very little time. Since these folks don’t have a direct interest in the sale, they are usually quite candid.

In the final analysis, the better informed a buyer is before closing, the better owner will result. Uninformed buyers become naturally disgruntled when post sale revelation hits. The next time a For Sale sign sprouts up in your community, make sure both the agent and owner are prepared with the association’s Resale Disclosure Checklist information. BACK

The Great Flag Flap
In 1992, a WWII vet hung a US flag out the window of his second story condo in Connecticut in violation of the community’s covenants. He was ordered to remove it. He refused. In 1996, a WWII vet put up a flagpole in the back yard of his home in Arizona in violation of the community’s covenants. He was ordered to remove it. He refused. In 1999, a Vietnam vet put up two "temporary" flagpoles in the front yard of his home in Virginia, then replaced them with a permanent flagpole, all in violation of the community’s architectural guidelines. He was ordered to remove it. He refused. In....well, you get the picture.

When it comes to flag flying rules imposed by a community association, look out. Telling residents (almost always veterans or their families) that safety, noise, or aesthetic concerns restrict how they can display Old Glory is the quickest way to get them seeing red, white, and blue. And it plays right into the media image of the meddling, cold-hearted HOA.

The entire issue is steeped in emotion. A decision handed down by a federal court in 1989, Gerber v. Longboat Harbour North Condo Inc., expressed outrage at a Florida condo association for violating the 1st and 14th Amendment rights of a resident by ordering him to take down the flags he’d hung from his balcony: "This Court will not countenance treading upon the rights of those who would respectfully display the flag in front of their own home."

In actuality, there is no constitutional right to fly the flag. The oft-quoted Gerber case has been diminished by subsequent rulings because it was "an emotional cry for a patriotic result. On the basis of patriotism, no one can disagree with Gerber. On the basis of law, one can easily disagree with Gerber."

The greatest irony of community association flag disputes is that they’re rarely about the Stars and Stripes per se. The Terravita Community Association in Scottsdale, Arizona endured nearly two years of negative press coverage (sample headline: "Wounding the Heart of a Warrior") to get Adolph "Doc" Wussow (yes, a WWII veteran) to take down the pole in his back yard from which he’d hung a 5' by 8' flag that had draped the coffin of his brother who had been shot down over Germany during the War. It wasn’t the flag that was the problem (they’re permitted on brackets attached to houses) but the pole. Similarly, in 1998, a Pennsylvania condominium scrapped with residents who draped an American flag in the front window, because association bylaws required window treatments visible from outside the home to be off-white.

Most flag cases are about telling someone what they can or can’t do. Architectural review procedures and uniform-appearance guidelines don’t offer good rebuttals to invocations of mother, God, and country. At the Wyndham Foundation in Virginia, an owner erected a 20 foot flagpole in cement with a bronze plaque in his front yard. Wyndham allows flags to be flown from brackets off the front of a house, but Vietnam vet Richard Oulton has said that due to the size of his 1.7-acre property, such a display would be inadequate. In this skirmish, Oulton was portrayed as a war hero who just wanted to honor his fallen comrades. His case even inspired Virginia State Sen. Bolling to successfully champion the "Wyndham Flag Bill" guaranteeing association homeowners in Virginia the right to fly the flag.

Wyndham’s board simply maintained that, due to size and construction, the flagpole that Oulton put up is a "visual nuisance". The association’s attorney said, "We do not wish to ban the flag and, in fact, encourage it. The methods of flying such flags may vary widely. In the interest of architectural harmony, the association must regulate such methods, just as it does color schemes, landscaping and home additions."

Just about every flag dispute involves a veteran and a restrictive covenant. But the issue isn’t completely homogenous. Flags are less of an issue in HOAs where owners have their own lot and detached home. Condos tend to be attached to each other and that proximity, along with the fact that the association owns and maintains unit exteriors and common areas, demands certain considerations:

Noise. Fluttering, snapping, clanging flags can make quite a bit of it.

Aesthetics. Flags disrupt uniform appearance.

State Law. Virginia’s Wyndham Flag Bill gives HOA owners the right to display US, state and military flags "unless specifically prohibited in the association’s resale disclosure packet." Delaware passed legislation in 1995 that guaranteed owners the right to display the flag "on a pole attached to the exterior wall of the unit or common elements proximate to the unit." Other states have passed similar bills. But these laws are still subject to reasonable time, place and manner restrictions so the HOA still has say.

Other Flags. Old Glory isn’t the only flag your residents might want to fly. There are seasonal flags, holiday flags and college flags, too. Residents might grumble when told that their Easter Bunny flag or New York Yankees pennant isn’t allowed. But only the American flag inspires the emotion that leads to litigation.

Navigating this star-spangled maelstrom takes patience, reason and thick skin. It’s important to maintain a respectful attitude. The resident whose flag flying comes under fire is usually a veteran who has served the country well. Keep your perspective by asking "Is this doing any harm?" Consider compromise. Rather than fight flag flying, install an association flagpole and appoint a committee to maintain, raise and lower the flag in the manner prescribed by the Federal Flag Code. Take preemptive action by approving flag flying but imposing what, when and how limitations. Old Glory need not create a flap in your community. Simply point those that want to fly one the right direction. See you at the pole! Excerpts from article by Christopher Durso BACK

Velvet Hammer Rule Making
Homeowner association boards are granted authority to establish and enforce reasonable rules in the governing documents. Unfortunately, there is rarely many details provided about how and when to do it. So, boards often set rules reactively. Reacting to a problem is not necessarily bad but overreacting is. One of the biggest dangers of rule making is moving too quickly.

As a rule, don’t adopt a rule unless there is a general consensus in the community that it’s needed. Why make one that punishes a lone trouble maker or that duplicates one that should be enforced by the police? Use these guidelines when composing a rule:

1. Fines and penalties should be "reasonable and customary". Don’t invite challenge by heavy handedness. For example, if the area merchants charge $25 for a bounced check, a charge of $100 would be unreasonable. If they charge 18% on overdue accounts, don’t charge 25%. Don’t invite challenge.

2. Punishment should fit the crime. $10/day may be reasonable for small infractions and not enough for major ones. The board should establish various levels of penalties for different infractions. In most cases, before any penalties are levied, the violator should be given written notice of the problem and a reasonable time to correct it. (An exception is parking in the Fire Lane. Tow immediately). When the deadline is reached, the fine kicks in.

It's also important to clarify that fines, interest and other penalties are considered equal to regular assessments for collection purposes. In other words, if the owner fails to pay the fines, it triggers a delinquency and collection process just like nonpayment of regular assessments.

3. Same rules for everyone. Be careful not to fall into the trap of unequal enforcement. There is no faster way to lose credibility and support then by playing favorites. This is a very good reason to have professional management which should be impartial and businesslike in rule enforcement.

If a rule is needed, use Velvet Hammer Principles which include these components:

1. Remember that you’re dealing with neighbors and not hardened criminals.
2. The wording and intent of rules should be respectful and not dictatorial.
3. Before any rule is enacted, circulate it for review to the owners and an attorney specializing in homeowner association law.
4. Take no pride of authorship.
5. Ask the owners if the rule is needed. Listen carefully to the responses. Kill it if it’s not clearly supported.

Minimize rules. Swing the rule hammer if you must, but "velvetize" the outcome. BACK

Rule Violation Notices
Enforcing rules in homeowner associations can be a precarious task when neighbors are lording over other neighbors. While verbal communications can be very effective, it’s important that significant violations be memorialized in writing and copies kept in the owner’s file. This is important because there is always a few owners that insist on being problem children and historical records are important for handling them.

Notifying owners of violations should be done factually, tactfully and in writing. Avoid legalese as much as possible. The object of a violation notice is to communicate the issue and solution clearly and to get cooperation, not to find reasons to smite thy neighbor. Here is a notice that has the appropriate elements:

April 1, 2001

Mr. Rowdy N. Wilde
666 Devil's Alley
Leisure City FL Phone: 666-6666

Regarding: Notice of Rule Violation

Dear Mr. Wilde,
Nottacare HOA has a long history of cooperation and peaceful coexistence. This is only possible if all residents practice the Golden Rule in daily interaction with their neighbors. A matter has come to my attention that requires me to tender you this Notice of Rule Violation. These are the circumstances:

On the evening of March 15, 2001, you hosted an "Ides of March Celebration" which featured a Tequila Slamming Contest, Viking Smorgasbord (no utensils permitted), Nude Dancers and Bacchanalian Orgy. Your exuberant guests made boisterous comments, lurid hand gestures, and unwanted advances to the numerous neighbors that respectfully requested that you "tone it down a bit". This event was clearly in violation of the Nottacare HOA Rules & Regulations section titled "Quiet Hours" which reads: "All residents shall respect quiet hours from 10 pm to 8 am to ensure restful sleep for all neighbors."

Violation of this rule carries a $25 fine. Please remit this amount payable to "Nottacare HOA" by no later than April 15, 2001 at the address listed below. Also, I ask for your particular attention to maintaining quiet hours in the future.

If you have any questions about this Notice, please call me at 777-7777. If you would like to appeal this Notice, please do so in writing to me at the address listed below. All appeals will be heard by the Board within 10 days.

Sincerely,
I.M. Encharge
Board President
Nottacare Homeowners Association
PO Box 1234
Leisure City FL 22333 BACK