Regulation rare for homeowners associations

A Gaelic good-luck charm draws a $2,250 fine.

Six yard decorations are deemed three too many. The penalty: more than $2,000 in fines.

Residents dispute the legality of monthly maintenance fees.

These are just a few examples stemming from unregulated homeowners associations in Manatee County.

There are an estimated 1,000 homeowners associations in Manatee and Sarasota counties – the exact number is unknown because they are not required to register with the state.

They operate virtually free of state oversight. The state only gets involved in homeowners association issues when they involve recall of officers or election of officers.

In 99 percent of cases in Manatee and Sarasota counties, homeowners associations go about their business of enforcing deed restrictions and taking care of common property in a quiet, smooth fashion, said Sarasota attorney Dan Lobeck. His firm, Lobeck and Hanson, represents roughly 500 associations in Manatee and Sarasota.

But then there’s that 1 percent of cases where an issue spins out of control within a homeowners association, causing a firestorm of controversy that tears neighborhoods apart, places the community under the unwanted glare of public scrutiny and usually casts the association as the heavy.

In many of these cases, strong personalities on both sides have poured gasoline on the fire, said Eileen Sugg, a board member at Tara. That neighborhood became a “1 percenter” last year when its homeowners association angered a group of residents who were against a renovation of the golf course and country club.

Those residents unsuccessfully tried to recall the board, including Sugg, and halt the renovation.

“It’s human nature,” Sugg replied when asked why a homeowners association sometimes explodes.

“Sometimes when people who are not used to exercising power and authority are given the opportunity, they become a little over-reaching,” Sugg said. “It is always best to settle these things in an amicable way instead of getting to the point where people are drawing lines in the sand.”

Such firestorms are exactly what’s happening in neighborhoods throughout Manatee County.

In Lakewood Ranch, Summerfield/Riverwalk not only has fined resident Joani Ellis more than $2,000 for having more than three decorative items in her neatly groomed Summerfield front yard – it has also, in the opinion of Lobeck, who is now her attorney, overstepped its bounds by preventing her from taking a seat on the board’s neighborhood committee, even though her neighbors voted her in.

Ellis, who got into trouble for having a handful of sea shells on a metal grid placed in a planter in her front lawn, plans on attending a March 25 Summerfield/Riverwalk board meeting where she will learn if her appeal to have her fines dismissed was approved.

If she doesn’t get satisfaction, Lobeck said his client will head to court and ask that her fine be dropped and her attorney fees be paid by the association.

Refusing to pay dues

Casa Loma, a community off State Road 70 west of Oneco, may soon be a “1 percenter.”

In that community, several residents charge that the board of directors is operating as a homeowners association when they are not.

David Montgomery, a Bradenton attorney representing resident James Peronti in a lawsuit, says Casa Loma has no deed restrictions in force because they expired in 1999.

He further contends that Casa Loma, whose board has been collecting fees from residents for years, is a successor to a developer and a corporation that owns a recreational facility, but not a homeowners association.

Janet Montague, a treasurer, indicated that the board holds regular meetings like a homeowners association. She described Casa Loma as a “corporation.”

Montgomery’s client and others in the community, including Donna and Ken Coill, have refused to pay their monthly maintenance fees, saying that the board is masquerading as a legal government body.

“If the board of directors at Casa Loma can convince the Florida Legislature that it is a homeowners association, then my client will feel good about being protected under the legal rights that come with being under a true association,” Montgomery said.

The Coills say they refused to make payments to protest having “no voice.” The Coills say meetings are not announced and that the board does what it likes.

Montague said the meetings are posted in the clubhouse for all to see.

Coill disagrees, saying, “That’s baloney.”

The Casa Loma Corporation has put a lien on his home for the back payments, which is roughly $1,300 plus late charges.

When Ken Coill and Montague pass each other walking in the community, they ignore each other, Coill said.

Why no regulation?

Condos are regulated closely by the state, so why not homeowners associations?

“There is state oversight in the matter of elections and recalls of directors and that is it,” Lobeck said. “It was a matter of compromise in the Florida Legislature when the Homeowners’ Association Act came to pass. Developers of homeowners associations did not want them regulated like condos because developers wanted greater flexibility and less control by the state. So, only the barest of regulations were created. Over the years, the homeowners association rules have come closer to condos with the control over elections being the most recent thing.”

“HOAs don’t even have to register with the state,” Lobeck added. “There is nothing moving anywhere that would create additional state regulations.”

But should there be?

State Rep. Ron Reagan, R-Bradenton, speaker pro tempore of the Florida House of Representatives, says “No.” Reagan feels that association problems are something that residents need to work out, and that the state should stay out of it.

Florida Attorney General Bill McCollum agrees.

Through his spokeswoman, Ryan Wiggins, McCollum told the Herald last week that he has received virtually no complaints from residents of homeowners associations in the state asking for help, and so he is planning no actions.

State Sen. Mike Fasano, who represents New Port Richey, is proposing a bill this legislative session preventing condo owners who don’t pay their association fees from using amenities at the condos, but he has nothing in the works for homeowners associations.

Fasano said there are just too many to try establishing oversight.

“There are few laws because there are so many of them,” Fasano said. “It would be difficult. Some are deed-restricted and some are not. I just don’t know if it’s a good idea to regulate. You are talking thousands and thousands of associations.”

An American tradition

Homeowners associations date back to the 1960s, when developers began building subdivisions and including deed restrictions. Homeowners associations started because residents were tired of having to sue each other if one neighbor was unhappy with what another was doing next door.

Homeowners associations usually have by-laws and covenants. They are the same as a contract, Lobeck said.

“It’s a contract and also a covenant that runs with the land,” Lobeck said. “In other words, when you buy you are under contract to follow the covenants and when you sell your land, future owners are bound as well.”

In the last 50 years, Lobeck said, homeowners association by-laws and covenants have woven themselves deeply into the fabric of American life, perhaps suggesting the unwillingness of politicians to mess with them.

Reagan recently got a letter from his homeowners association in Braden Woods, taking him to task for parking his motor home too long in his driveway.

In reality, the person who noted that Reagan’s motor home was in the driveway missed the fact that Reagan had it out of town for a week. The resident only saw the day Reagan was loading it and the day it returned and thought it had been in the driveway seven days, Reagan said.

But Reagan has not drawn a line in the sand over the incident.

“I didn’t have any bad feelings about getting the letter,” Reagan said. “I think when people sign documents to live in a deed-restricted community they have signed on to follow the rules. However, I do believe there should be an appeal process and there should be opportunity for change.”

In the 17 years he has lived in Braden Woods, Reagan remembers only one incident that could have exploded, but didn’t. A resident started to put stone on his house that was not approved by the architectural board. But the architect was notified and the situation was quickly corrected.

Knowingly breaking rules

But what about a resident who knows he or she has violated the covenants, but feels they are in the right and refuses to comply?

That’s what is happening in Lakewood Ranch right now.

In the latest incident to spark public attention, Malcolm and Karen Ronney, owners of MacAllister’s Restaurant on Main Street, paid a fine of $2,250 to the Greenbrook Village Homeowners Association because they had a sign reading “Albanach” mounted on their home for 47 days in 2006.

Albanach is Gaelic for Scotsman.

“It’s something you put on your house for good luck,” Karen Ronney said.

The Ronneys said they received 50 e-mail letters of support after word got out about their fine.

“I wanted to put the sign on the copier and put Albanach on all the homes in our neighborhood to see what would happen,” Ronney said.

The couple paid the fine because it had been turned over to a collection agency and it was not good for their business image.

“Bitter,” Karen Ronney said when asked how she feels about the incident.

“I think it’s ridiculous,” Malcolm Ronney said. “This would never have happened when Schroeder-Manatee Ranch was in control. I am really hoping the system can change.”

The Ronneys immediately knew in 2006 that the sign was not allowed, but chose to leave it up, logging a $50 per-day fine, said board member Steve Balazac.

“They were notified the sign wasn’t allowed based on the covenants of Greenbrook,” Balazac said. “The timeline was not heeded and the fine was in place. The folks were not present at the last meeting, which you would think they would try to be there to voice their opinion.”

Malcolm Ronney said he didn’t go to the Feb. 25 meeting because he was at work at his restaurant. Karen Ronney sent a letter in their behalf.

“We’re in the middle of season,” Karen Ronney said.

The Greenbrook board did trim the fine from $3,200, the Ronneys said.

Lining up defenses

It might be hard to top Albanach, but Ellis’ case seems to take the prize as the case that, at least on the surface, seems the most ado about virtually nothing.

In his 30 years of handling association cases, Lobeck said he has never seen a better set of defenses to a homeowners association enforcement action.

“I believe Mrs. Ellis has an open and shut case on four grounds,” Lobeck said. “The statute of limitations applies. Mrs. Ellis put in her yard in 1999 and this action should have occurred by 2004. Second, I have reviewed photographs of other lots, including that of the homeowners association president, another director and a compliance chairwoman and, if Mrs. Ellis is in violation, clearly they are too.

“There is also some ambiguity in the restriction,” he said. “It’s not clear if the three-item limit pertains to the whole front yard or each individual flower bed. And, finally, the restriction is unreasonable as applied. It is absurd to say her small shells and other items create any aesthetic offense whatsoever.”

When a homeowners association explodes, something has gone very wrong inside of it, Ellis said.

“Common sense has left,” Ellis said. “In my case, the Summerfield/Riverwalk board has the power and opportunity to turn this into a positive, win-win situation – or continue with their own agenda.”

Ellis hopes the board will make the decision to waive all her fines and invite her to apply for a modification, even though none exists right now for lawn decorations other than benches, birdbaths and fountains.

“That is what I am hoping for,” Ellis said.

Copyright © 2010 The Bradenton Herald, Fla., Richard Dymond