Them

image: James Hughes
image: James Hughes

That feeling when everything about the project is moving along smoothly, and then ‘Them’ show up. Them have their own ideas and opinions. Them have their own sets of rules and guidelines that must be given adherence. If only Them would stay out of this, the project would be a smashing success and everyone, including Them, would celebrate and admire. By ‘Them’, I of course mean HOA’s (Home Owners’ Associations).

HOA’s became prevalent out of the Post-War era in the rise of Suburbia. It was the Eisenhower-an period of America. A 5-star general in the White House, and over 8 million Veterans returning to civilian life. Suburbs sprang up to house the millions of returning Veterans and their families, with communities modeled from base housing. Efficient, clean, and above all else – uniform in appearance and function. It was a simple time of mass prosperity and bright futures. So naturally, in the mindset of that post-war culture, local governance was needed to maintain the order and aesthetic of these newly created communities. Right now, if you surveyed every single professional in residential service, I would bet that the issue of HOA’s comes up for the majority.

Navigating clients, city/county ordinances, State law, contractors, and the ilk are sometimes enough to give you heart palpitations (I speak from actual experience). Throw in the local HOA demigod clipboard-wielding neighbor and you have a recipe for… well, early retirement.  However, HOA’s are a reality which we must face.

I recently went toe-to-toe with an HOA over a project. The project had been submitted and approved to the HOA prior to construction. However, somewhere along the way someone did not like that the project was being built. Accusations were being thrown around, neighbors were angry, and one local kept calling code enforcement just in the hopes they could have the project shut down. Fortunately for us, all permits were current and the project proceeded.

Out of due professional diligence, I did my homework in hopes of avoiding any real legal conflict. I reached out to some attorneys who specialized in HOA law, spent 3 full days reading up on Florida law, and even pulled up as much case law as I could find. What did I discover?  The HOA was operating illegally in its attempts to enforce Covenants and Restrictions! More digging into public records found that the HOA actually knew they had no legal governing authority, yet here they were trying to throw their weight around on a project.

image: James Hughes
image: James Hughes

Under Florida law, HOA Covenants and Restrictions must be properly and specifically filed in the local county’s Official Record Books. Property deeds and plats must also specifically list the references to those Official Record Books where the Covenants and Restrictions are filed. To top it off, Florida has an automatic 30-year sunset on all HOA Covenants and Restrictions, unless the HOA legally preserves or revitalizes them. There are of course exceptions here and there, and I won’t bore you with the nitty gritty details. Yet suffice it to say, in this case, the HOA had no actual authority to even be having conversations about the project.

As professionals, it’s our duty to protect our projects and our clients. Threats to both come in all shapes and sizes. Local government officials, HOA’s, or even obstructionist neighbors can wreak havoc on even the best executed projects. I have made it a habit of educating myself on local laws and codes, both municipal and community. In the case of HOA’s, I often take time to establish relationships with their staff if it’s a community I often work in. Acquiring copies of their Covenants and Restrictions and carefully reading them will often be enough to avoid potential conflicts.

image: James Hughes
image: James Hughes

In one case, my firm was able to introduce new elements into a project that had previously not been addressed. We were able to convince the HOA to change their Architectural Control guidelines. This was possible because they knew we had taken the energy to understand the established vision of the community and get to know the staff – we had built a relationship.

Equipping ourselves with the knowledge of our surroundings is crucial. Knowing as many of the local laws and ordinances that apply to our various practices is, in my opinion, an important part of our role as professionals. Each State has its own sets of statutes and laws that deal with HOA’s and community governance. Get to know your own State’s statutes and laws or each of the States you practice in, because there’s nothing quite like that sinking feeling of running into trouble with ‘Them.’

by James Hughes, Affiliate ASLA, Residential Landscape Architecture PPN Co-Chair

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