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Richard
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 54986
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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We live in Pasco County, Florida and our HOA has ask 3 of

Customer Question

We live in Pasco County, Florida and our HOA has ask 3 of the homeowner to remove their Fern plants in their yards within 30 days because the HOA can not find where the home owners ask for an approval to put them in. Our ferns were planted in 2007 and I can not remember filing for an approval. Our By-laws state we can plant Xeriscape plants of which the ferns fall into this category but an Architectural approval is needed. There are 6 homes out of 63 that have these plants. A petition was circulated and 36 of the 63 homeowners signed the petition saying they approved of the plants and 16 of the homeowners were not available as some of the homeowners live only half of the year in the subdivision and some of them are on the Board. Can we be forced to do this if more than half of the homeowners approve of the ferns planted in the 3 yards. We are uncertain if all 6 of the homeowners even received letters to remove their ferns. There are many homeowners who plant things without getting approvals. Could this be selective enforcement?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Richard replied 1 year ago.

Good morning Leo. My name is ***** ***** I look forward to helping you.

The HOA is not going to enforce this against you. First, the Board works for the homeowners and not vice versa; The Board has a fiduciary duty to act in the best interests of the homeowners and if more than half of the homeowners have approved this, then the Board has no right to take a contrary position. Further, although the HOA generally has the right to enforce the restrictions in the CC&R's, there are two circumstances where this right is lost...i) where the restrictions have been ignored in the past, and/or ii) where the restrictions have been selectively enforced. If, in spite of the restrictions in the CC&R's, if there are other instances where the situation exists that should fall within the restriction, then one of the foregoing must have occurred, and thus the HOA cannot then legally enforce the restriction against you.

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