Post by BagLady on Mar 4, 2014 9:36:36 GMT -5
TWO homeowners are planning to bring in manufactured homes to be sited on their lots.
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ONE of them has already gotten BOTH a Permission Slip from the principal..uh I mean the..uh Manager, as well as Polk County Building permits. Sure hope they get that house clear of that tree before the ground shifts! Yikes!
The second owner reportedly has a Polk County permit in hand and is seeking a "permission slip" from IT. IT is reportedly REVOKING her previously-issued permission slip for owner #1 and withholding a permission slip for owner #2. The owners have sent correspondence to the BOD seeking variance and consent to site their new homes.
From Mar 4, 2014 Workshop Agenda:
Board correspondence
Requests from 66 Silversides and 30 S-bag Trail South
The Board is having a rough go of things! The Covenants do not permit these homes but the Board has been ignoring the Covenants for decades. Rules concerning any structures other than sheds and permitted accessory structures to allowed recreational vehicles are null and void. The BOD cannot logically raise a RULES basis for making the decision to either allow or deny the manufactured homes.
By ratifying the Rule change on the ballot recently, BOD has taken one more step to solidify the WAIVER of the Covenant against manufactured homes because it has approved an accessory structure to an SLohA-disallowed manufactured home!
The only rational basis to base any action on the above owners' "requests" is past behavior. As long as these homes are OK with Polk County, the Board has only its own past behavior to guide future behavior. It has waived the right to enforce even a Rule that is similar because a Rule cannot be in conflict with the Covenants! And the Covenants do not allow the Manufactured homes! A real pickle!
The defenses of the involved homeowners are in these two areas i.e. Selective Enforcement and Waiver, according to the below excerpts from an attorney blog:
BOD has obviously flagrantly exhibited both capricious enforcement and waiver of enforcement--and--its agent (IT) already agreed to the siting for Owner #1 giving her the #3 "unclean hands" defense! Here's another kicker--there is no provision in our Covenants for the board to enforce anything EXCEPT in equity. Board has to take a violator to court! There is no other remedy provided in SLohA documents. Owners have rejected enforcement via fines on multiple ballots--for good reason. Notwithstanding the fact that MANBOD wants to try to shove that (Hate Committee and Fines) down owners' throats, it is against our own governing documents AND unconstitutional.
But, the owners have only one remedy if BOD refuses to permit manufactured homes in here--OWNERS have to take SLohA to court!
Interesting parallel, Eh?
Disclaimer: I am not an attorney and the interpretations above are my opinion and offered for informational purposes only. These interpretations should not be relied upon if you are contemplating legal action. Consult an attorney for legal advice.
Attachment Deleted Attachment DeletedAttachment Deleted
ONE of them has already gotten BOTH a Permission Slip from the principal..uh I mean the..uh Manager, as well as Polk County Building permits. Sure hope they get that house clear of that tree before the ground shifts! Yikes!
The second owner reportedly has a Polk County permit in hand and is seeking a "permission slip" from IT. IT is reportedly REVOKING her previously-issued permission slip for owner #1 and withholding a permission slip for owner #2. The owners have sent correspondence to the BOD seeking variance and consent to site their new homes.
From Mar 4, 2014 Workshop Agenda:
Board correspondence
Requests from 66 Silversides and 30 S-bag Trail South
The Board is having a rough go of things! The Covenants do not permit these homes but the Board has been ignoring the Covenants for decades. Rules concerning any structures other than sheds and permitted accessory structures to allowed recreational vehicles are null and void. The BOD cannot logically raise a RULES basis for making the decision to either allow or deny the manufactured homes.
By ratifying the Rule change on the ballot recently, BOD has taken one more step to solidify the WAIVER of the Covenant against manufactured homes because it has approved an accessory structure to an SLohA-disallowed manufactured home!
The only rational basis to base any action on the above owners' "requests" is past behavior. As long as these homes are OK with Polk County, the Board has only its own past behavior to guide future behavior. It has waived the right to enforce even a Rule that is similar because a Rule cannot be in conflict with the Covenants! And the Covenants do not allow the Manufactured homes! A real pickle!
The defenses of the involved homeowners are in these two areas i.e. Selective Enforcement and Waiver, according to the below excerpts from an attorney blog:
Homeowners are the victim of selective enforcement if either:
1) there are facts to demonstrate that the Community Association (HOA) has enforced some covenants but not others in an arbitrary and capricious manner; or
2) there are facts to demonstrate that the HOA has unfairly and unreasonably chosen to enforce the covenant against this owner but has not done so against another similarly situated owner.
3) Additionally, Owners can assert The claim of 'unclean hands' or 'equitable estoppel' which may only be raised if the owner reasonably believed that the person upon whom they relied had the power to make the decision and/or to bind the Association.
This is where the concept of waiver comes in. Waiver occurs when a board fails to enforce a rule for so long that it is deemed to have abandoned enforcement of that rule. If a board ignores a rule violation that is open and obvious for a significant amount of time, they have then “waived” the right to enforce the rule against that unit owner, and then, by extension, against anyone in the community.
The Association may be able to 'reinvigorate' the waived restriction for prospective enforcement if they properly notify the owners of their intent to enforce the restriction in the future. However, if a violation is too widespread, this reinvigoration process may fail.
So what’s a board to do? First of all, these principles are exactly why, even though it is not always the most pleasant task, it is a board’s responsibility to enforce every rule against every violator every time–or risk waiving the right to enforce the rule. If the board has any interest in enforcing a rule against any owners or residents, it must enforce that same rule every time against everyone who violates it. Only if the board absolutely knows that it NEVER wants to enforce a rule can it ignore it entirely. And, even if a board were to do so, it would arguably be violating it’s duty to the association to follow and enforce the covenants of the community
So the concepts of waiver and selective enforcement are critical for every board member to understand–if you, as a board, intend to enforce the rules of your community, you must enforce them consistently, against every person, no matter the situation or any extenuating circumstances.
1) there are facts to demonstrate that the Community Association (HOA) has enforced some covenants but not others in an arbitrary and capricious manner; or
2) there are facts to demonstrate that the HOA has unfairly and unreasonably chosen to enforce the covenant against this owner but has not done so against another similarly situated owner.
3) Additionally, Owners can assert The claim of 'unclean hands' or 'equitable estoppel' which may only be raised if the owner reasonably believed that the person upon whom they relied had the power to make the decision and/or to bind the Association.
This is where the concept of waiver comes in. Waiver occurs when a board fails to enforce a rule for so long that it is deemed to have abandoned enforcement of that rule. If a board ignores a rule violation that is open and obvious for a significant amount of time, they have then “waived” the right to enforce the rule against that unit owner, and then, by extension, against anyone in the community.
The Association may be able to 'reinvigorate' the waived restriction for prospective enforcement if they properly notify the owners of their intent to enforce the restriction in the future. However, if a violation is too widespread, this reinvigoration process may fail.
So what’s a board to do? First of all, these principles are exactly why, even though it is not always the most pleasant task, it is a board’s responsibility to enforce every rule against every violator every time–or risk waiving the right to enforce the rule. If the board has any interest in enforcing a rule against any owners or residents, it must enforce that same rule every time against everyone who violates it. Only if the board absolutely knows that it NEVER wants to enforce a rule can it ignore it entirely. And, even if a board were to do so, it would arguably be violating it’s duty to the association to follow and enforce the covenants of the community
So the concepts of waiver and selective enforcement are critical for every board member to understand–if you, as a board, intend to enforce the rules of your community, you must enforce them consistently, against every person, no matter the situation or any extenuating circumstances.
But, the owners have only one remedy if BOD refuses to permit manufactured homes in here--OWNERS have to take SLohA to court!
Interesting parallel, Eh?
Disclaimer: I am not an attorney and the interpretations above are my opinion and offered for informational purposes only. These interpretations should not be relied upon if you are contemplating legal action. Consult an attorney for legal advice.
