By David Swedelson, Partner SwedelsonGottlieb; Condo Attorney and HOA Lawyer
A CC&R dispute that started 11 years ago over the condition of a Tampa Florida homeowner’s lawn, a lawsuit that involved dozens of court hearings, a weeklong jury trial, two appeals and a second trial, at a cost of hundreds of thousands of dollars is finally over, and the owner prevailed. While this lawsuit occurred in Florida, it could have just as easily taken place in California. Boards at homeowners associations need to be careful when imposing charges and recording liens on an owner’s property.
The lawsuit was between an owner at the Pebble Creek HOA, a real estate broker and retired Tampa police captain, who claimed that his homeowners association illegally took action to replace his lawn in January 2002 and then recorded a $2,212 lien against the home and property for the cost of the sod.
The Judge’s written decision which followed a nonjury trial was subtitled “Anatomy of an HOA Dispute Run Amok,” and it stated that the evidence at the trial did not support the association’s contention Simmons’ property “violated community standards of a green, relatively weed-free lawn.” The Judge indicated that the owner’s lawn was similar to many lawns suffering “murderous emergency water use restrictions” during a severe drought that continued through September 2003.
When Simmons received a warning letter from the homeowners association in April 2001, he replied by contending that replacing sod during a drought and once-weekly irrigation restrictions would be a foolish waste of time and money. At the trial, a Southwest Florida Water Management District witness testified it would be unreasonable to expect St. Augustine lawns to be lush and green during “the drought of the century.”
The Judge also determined that the association lacked authorization to record the lien because it violated several of its own rules, including a requirement that three deed-restriction committee members examine a property before issuing such a warning.
In addition, the evidence at the trial showed that only about half the sod for which the owner was charged was installed on his property, with the balance planted on county right-of-way between the sidewalk and street. Follow this link to read an article about the case.
The owner is still seeking $222,123 in attorney’s fees and costs. Ouch. Not many owners will spend that kind of money to prove a point. This owner did, and the association is likely going to have to pay up.
In California, homeowner associations are not permitted to record liens when the association takes steps to deal with an owner’s property that is not maintained. An association can only record a lien for reimbursement for repairing damage to the common area caused by an owner. Follow this link to Civil Code Section 1367.1(d).
That does not mean that homeowner associations cannot or do not sometimes go onto an owner’s property to deal with landscaping that is not being maintained, peeling paint, garbage that is not being thrown away, and the list goes on.
We do not typically recommend that homeowner associations enter a homeowners unit or go on to a homeowner’s property without advance notice and/or without a hearing. Usually, we recommend that the association seek a court order allowing the association onto the owner’s property. And caution must be taken. Many owners have guns. Be careful out there.
David Swedelson can be contacted at firstname.lastname@example.org