Post by Admin on Oct 18, 2013 12:00:33 GMT -5
Associations seeking to enforce vague covenants must show how covenant was violated
by: Jean Winters, Esq. October 10th, 2013 | 10:35 PM
The title of this post seems intuitively obvious. The plaintiff in any court action must always prove its case. However, it may not be as obvious as it seems. In Boyle v. Hernando Beach South Property Owners Assoc., Inc., the Fifth District Court of Appeals reversed a portion of the summary judgment because the Association did not prove its case.
The problem started with a covenant that was too vague (a common problem). The covenant required “[l]ot owners . . . keep their lots in a neat, clean and orderly condition. . .” What does “neat, clean and orderly” mean? By whose definition? The Association only compounded the problem by submitting the affidavits of five officers and directors in support of summary judgment – each said that Boyle, the owner, “failed to properly maintain his lot within Hernando Beach, Unit 13-B. Specifically, the landscaping and trees need to be trimmed and properly maintained. Additionally, mold on the home needs to be cleaned/removed.” The obvious question that comes to my mind is, “What is the standard for proper maintenance?”
At the lower (trial) court level, the Association obtained an injunction mandating that Boyle comply by “properly maintaining and trimming the landscaping and trees and cleaning or removing the mold on the home.” Boyle appealed this ruling, stating that material issues of fact were unresolved and the affidavits were insufficient. Boyle said that uncertanties existed – how does he know what to do to comply? What does “properly maintained and trimmed” mean? Was the grass dead or uncut and were the trees or shrubs dead or untrimmed and to what extent?
Upon appeal, the appellate court observed that the affidavits merely parroted the allegation of the complaint that “Boyle’s [the owner's] landscaping and trees were not properly maintained and trimmed.” Addressing the uncertainties, the court agreed with Boyle and said it could even “add to the list of imponderables.” The court held that the Association failed to provide evidence to establish its claim, because it was unclear how Boyle violated the covenant and what steps he must take to comply. Only on the issue of mold could Boyle reasonably know what he must do and hence, the court upheld summary judgment on that one point.
This case should be a warning to associations wanting to amend covenants or rules, or to enforce those that do exist. Covenants and rules should be clear and specific, so owners know how to comply with them. One would think that attorneys for developers would know better, but sadly associations are often stuck with vague language that is entirely too open to interpretation. This is not an opportunity for boards to selectively enforce by changing the bar for different owners. Instead, it is even more reason to establish objective, quantifiable criteria and let homeowners know what that is. When suing to enforce, the Association had better be able to say exactly how the homeowner violated the covenant and what he must do to comply. I remember our own HOA board wanting to amend covenants a decade ago, to require owners to keep their yards “neat”. At the time, I thought that ridiculous. Obviously, so did this court.
The only shock about this case, in my opinion, is that a trial court ever granted summary judgment in the first place.
by: Jean Winters, Esq. October 10th, 2013 | 10:35 PM
The title of this post seems intuitively obvious. The plaintiff in any court action must always prove its case. However, it may not be as obvious as it seems. In Boyle v. Hernando Beach South Property Owners Assoc., Inc., the Fifth District Court of Appeals reversed a portion of the summary judgment because the Association did not prove its case.
The problem started with a covenant that was too vague (a common problem). The covenant required “[l]ot owners . . . keep their lots in a neat, clean and orderly condition. . .” What does “neat, clean and orderly” mean? By whose definition? The Association only compounded the problem by submitting the affidavits of five officers and directors in support of summary judgment – each said that Boyle, the owner, “failed to properly maintain his lot within Hernando Beach, Unit 13-B. Specifically, the landscaping and trees need to be trimmed and properly maintained. Additionally, mold on the home needs to be cleaned/removed.” The obvious question that comes to my mind is, “What is the standard for proper maintenance?”
At the lower (trial) court level, the Association obtained an injunction mandating that Boyle comply by “properly maintaining and trimming the landscaping and trees and cleaning or removing the mold on the home.” Boyle appealed this ruling, stating that material issues of fact were unresolved and the affidavits were insufficient. Boyle said that uncertanties existed – how does he know what to do to comply? What does “properly maintained and trimmed” mean? Was the grass dead or uncut and were the trees or shrubs dead or untrimmed and to what extent?
Upon appeal, the appellate court observed that the affidavits merely parroted the allegation of the complaint that “Boyle’s [the owner's] landscaping and trees were not properly maintained and trimmed.” Addressing the uncertainties, the court agreed with Boyle and said it could even “add to the list of imponderables.” The court held that the Association failed to provide evidence to establish its claim, because it was unclear how Boyle violated the covenant and what steps he must take to comply. Only on the issue of mold could Boyle reasonably know what he must do and hence, the court upheld summary judgment on that one point.
This case should be a warning to associations wanting to amend covenants or rules, or to enforce those that do exist. Covenants and rules should be clear and specific, so owners know how to comply with them. One would think that attorneys for developers would know better, but sadly associations are often stuck with vague language that is entirely too open to interpretation. This is not an opportunity for boards to selectively enforce by changing the bar for different owners. Instead, it is even more reason to establish objective, quantifiable criteria and let homeowners know what that is. When suing to enforce, the Association had better be able to say exactly how the homeowner violated the covenant and what he must do to comply. I remember our own HOA board wanting to amend covenants a decade ago, to require owners to keep their yards “neat”. At the time, I thought that ridiculous. Obviously, so did this court.
The only shock about this case, in my opinion, is that a trial court ever granted summary judgment in the first place.