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LawTalk
LawTalk, Attorney
Category: Real Estate Law
Satisfied Customers: 35406
Experience:  I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
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I live in a deed restricted community in Clermont, FL. The

Customer Question

I live in a deed restricted community in Clermont, FL. The rules say no freestanding out buildings. I requested to the architectural board to put up a small orchid shade house in my yard because I had seen a much larger glass greenhouse in a neighbor's yard. My request was turned down because of the no freestanding outbuildings rule. When I brought to their attention the existing glass house they said it was illegal and they would send a letter to the owner. It would appear that all they do is send letters with no follow up. I have since seen a freestanding garage and other violations. The HOA says they have inspectors that go through the neighborhood. I find it hard to believe that the inspector has been missing all these violations. I also reported to them a year ago that my neighbor's retaining wall was falling down. Nothing has been repaired there except my neighbor said he would get to it. Do I have any recourse?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

While I presume that what you are looking for is some way to force the HOA to allow you to build your structure in defiance of the By-laws/CC&R's, the fact is that short of forcing an amendment to the By-Laws, you won't be able to do that---or to convince a court to do that. Your only remedy is to deal with the present violations that the HOA is doing nothing about.

I will presume that the neighbors failed to get the permission of the HOA to make these changes you reported on other properties in the neighborhood.

Your first avenue of approach will be to file a formal complaint with the HOA board, and ask that they find the construction of outbuildings on HOA property a violation of the By-laws and immediately take measures to remove the offending structures, that they sanction the homeowner for the violation and that they immediately take action to sanction the owners involved and to lien their property if necessary.

Failing that you may institute a private suit against the owner and seek the help of the court to enforce the covenants of the HOA as you have a legal interest in seeing that they are upheld. The court can then order that the structure be removed or some made to conform to the HOA covenants in place.

The last option that you have, and I say last because it is likely to be the most expensive, is to actually file suit against the Board itself for failing to enforce the covenants. The allegation in the Complaint will read something like this:

As a result of the intentional failure of the Association to enforce the declarations and the guidelines and discharge its duties, as a result of the association’s failure to act, and as a result of the association’s defective and negligent performance, the (insert your associations name here) community has been degraded.

These sorts of suits have been successful in courts across the US.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you so that I can be compensated for helping you.

I wish you and yours the best in 2015,

Doug