Live in a home governed by a condominium, co-op orhomeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: I live in an HOA, and the HOA is trying to block the sale of my home because of an unauthorized pipe on the exterior. This is preventing me from moving to a senior living community near my family. I am enclosing a letter that I have drafted for your advice. Signed, N.T.
Dear N.T.,
In the draft letter that you sent, you explain to your board that you have owned your home for over six years, and that, so far as you can tell, this drain pipe was installed 12-15 years ago by a prior owner. You say that the pipe is not readily noticeable to a passerby
and does not impact your home in any way. You also argue that the board is not applying its architectural standards equally, because there is at least one other home with an exterior air conditioning line; as well as the fact that the board approved two prior sales of your home without raising this issue. You explain to the board that it would be a particular hardship for you to have to remove and reroute the pipe, and that your finances are very tight due to your upcoming move.
I think the tone of your letter is fine; although I would recommend removing the bottom paragraph, as it appears the letter was written using artificial intelligence of some form. I’m not criticizing you for doing so, but if the board sees that this is an AI letter they may respond less favorably than if you sent them an appeal written in your own voice.
As the AI prompt at the bottom suggests, the primary issues involved here are whether you have one or more defenses to a possible enforcement action. These would be “equitable” defenses — they are defenses based on principles of fairness developed over time by the courts, rather than any statute or formal law saying that they exist.
When your letter alleges that the board is treating similarly situated owners differently, that is selective enforcement —that the board is choosing to selectively enforce its rules against some owners and not others. And when you allege that the board has ignored open violations of its rule for an extended period, that is waiver. In addition to this, you suggest that the violation has existed long past the statutory timeframe within which the association could enforce its architectural controls against you (called the statute of limitations), and finally you make one last equitable argument that the board has effectively grandfathered this specific violation because it allowed the home to be sold with the exterior pipe on several prior occasions.
Any single one of these arguments could win the day in court. There’s no way to ever predict how a judge might handle a situation like this, but I would expect one to be sympathetic to you. Based on the facts that you presented to me, and assuming your history is accurate, I would much rather have your case than the association’s, and I would likely recommend that a similarly situated client find a compromise.
The problem here is that the association holds all the cards.
Let’s assume you send your letter and they are completely unsympathetic to your situation and tell you to pound sand. You could threaten to sue the association, and you could very well win that lawsuit — but it would cost you tens of thousands of dollars in legal fees; and in the meantime you wouldn’t be able to sell your home.
I would send your letter (or perhaps a modified version as I describe above); but recognize that if the board decides to be intransigent, you have limited options. It will be far cheaper to simply move the pipe, based on the quote you sent, than to fight them in court — and there is no state agency that would be able to help you. At most, you might be able to find someone at legal aid who would take your case, but I feel certain that you don’t want this to drag on for years. So, your best bet, even though your legal position is strong, would be to work with your board (or even the buyer) to find an amicable solution, whatever that would be. And perhaps the buyer would be willing to condition the sale on their own relocation of the pipe.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Can your HOA block a home sale over old violations that predate you?
