Florida Flagpole Causes Funds Forfeiture
Posted by Lurch on December 01, 2006 • Comments (8)Permalink

Homeowners association boards are desperate little tyrannies in Florida. Usually composed of retirees with too much time and too much opinion on their hands, they spend their days as minor governmental bodies with extraordinary powers. They will restrict what you can do with your property, to the extent of dictating paint colors both outside and inside your home, and the extent and types of trees, plants and flowers you may decorate your yard with. Invariably the argument is that your individual action will adversely affect others’ “property values” in some mystic fashion only understood within their own aging, sclerotic minds.

Back in 1999 Florida veteran and homeowner put up a flagpole on his lawn and flew the flag, proudly. His homeowner association was of course outraged because if he had a flagpole possibly some other near-senile fool might not want to buy their homes from their children fifteen years from now.

In 1999, Jupiter resident George Andres had a problem displaying his flag in his front yard. The Indian Creek homeowners association had a bylaw prohibiting the display of a flagpole in the front lawn. Andres' protested by displaying the flag anyway, while the Indian Creek homeowners association went as far as foreclosing his home to cover legal fees after being in court at least twenty-eight times. Even after Governor Jeb Bush visited his home along with all of the local and national media, the homeowners association wasn't giving up without a fight. Andres said, "Well, first they said that it was going to cost more to cut the grass around the pole, which is kind of funny. And then they told me that the flagpole was going to take away from the value of the property. And I said, well, then we should be able to take away all the trees around here, because they're the same as the pole. And my pole is a portable pole. And the state government says I can do it."

George Andres won and was allowed to display his flag in his front lawn with the use of a flagpole.

During the last week of July 2006, President George Bush signed the Freedom to Display the American Flag Act of 2005, allowing residents to display the flag on their residential property despite any homeowners association rules.

This is most likely the only action Mr Bu$h ever took during his occupation of our Oval Office that did no harm to a poor or middle class American.

Fast forward to November, 2006:

Barry Silver took on a long shot when he agreed to represent a Jupiter man against a homeowners association in a tangled legal fight over a flagpole.

On Thursday, after five years of litigation, it paid off.

In a rare decision, a judge ordered the homeowners association to pay Silver twice his regular legal fees - a total of $126,225 - after he successfully argued the case against The Indian Creek Homeowners Association Phase 3B.

Originally, Silver agreed to represent George Andres, a 68-year-old veteran at odds with his neighborhood association over a flagpole he had put in his yard, for free. By the time he came on board, a judge had ruled against Andres, and he and his wife were ordered to pay about $30,000 in attorneys' fees.

An attorney for the association then filed a foreclosure lawsuit because Andres couldn't pay.

Silver got a temporary injunction that kept Andres' American flag flying and then won an appeal that reversed the rulings against Andres. As Silver made the case, he said, he saw a way to argue that the homeowners association should pick up the tab for his services.

"In Florida, homeowners associations are used to running roughshod over the rights of their clients. And the reason they can do that is once they decide to go after one of their own homeowners, it's virtually impossible for a homeowner to find an attorney to represent them," Silver said, explaining the crux of his argument.

Circuit Court Judge Edward Fine bought it, and as part of the decision awarded Silver twice his regular hourly fee, because of the risk involved in taking such a labor-intensive case without guarantee of payment.

About frickin time.


Posted by: Mike at December 1, 2006 08:05 AM

We see the same thing up here in Va, Lurch. Two of my co-workers (who are also big Bush admirers...) are active in their Community Sicherheitdiensts, er, homeowners associations. They share tales of the action they take against people who (GASP!) leave boats in their driveways.
I was raised to believe that American jurisprudence was predicated on old English law to include ideas like "freehold" and "fee simple", ie, my property is mine to enjoy absolutely.
Glad you've got one judge w/ common sense down there and, for once, glad to hear of a lawyer being well-compensated! Mike

Posted by: BadTux at December 1, 2006 11:37 AM

The other homeowners in this complex are, of course, going to pay for this, by court-ordered raising of the HOA assessments. They deserve the financial rape they're about to be subjected to. They could have gotten together at any time and voted the HOA dictators out of office, but refused to do so because, like, that would have required them to actually be INTERESTED in who governs their neighborhood...

Some people wonder why I have a cynical view that says "we have the government we deserve". HOA's simply prove my point. We are too apathetic, too comfortable, too unwilling to think about anything about me me me me me, to deserve any government other than the one we have.

- Badtux the Cynical Penguin

Posted by: Lurch at December 1, 2006 12:18 PM

Mike, BT, you're both right. I don't know how it is in other jurisdictions, but Floria law allows for stong HOAs because so many developments were bult in unincorporated areas, which had no governing entity, but only the various (and there are many) assessing entities. The strength and power of HOAs are established by builders when they plat the land and register the development with the state, and they don't care what catastrophe they create because they're out of there after building. Oftentimes the HOA IS the governing body until the development is assumed by an incorporated city.

Incorporated areas draw essential services (fire/rescue, police, water, sewer, trash collection) from the city. Unincorporated, from the country or private companies contracted for by the county. I live in an incorporated city, but pay tax assessments for four water district entities, two health districts (hospitals) one school district, and also local and state school debt agencies. My actual property tax is 32.5% of my total tax bill.

Jupiter is a bit unusual because the residents there are actually among the most affluent in the nation (which I suppose implies arrogance as well.) As you said the owners will have to pay a serious assessment now to pay the attorney's bill. Mr Andres will be required to kick in his share and I hope his attorney will illegally rebate his share back to him. I'm certain the residents in the development did shitall to support Mr Andres, unlike those folks in Colorado who stood up for the "peace" Christmas wreath couple.

Posted by: Chuck Cliff at December 1, 2006 02:23 PM

All I ask is that people show proper respect for the flag -- when I come stateside, I see the flag displayed as decals, as tattered and torn rags flapping from car antennas.

Worst, I see them flying all night in storm snd gale with no sign pf lighting -- what kind of patriotism is this!.

To treat the flag with ignorant disrespect and put a yellow magnet on your SUV is as close to treason a civilian can normally get!

Posted by: Lurch at December 1, 2006 03:13 PM

You're absolutely right, of course. I blame the body parts from the R Party who've had exclusive control of the national discourse for the last 6 years. They don't practice patriotism, so how could they possibly instruct citizens in what is proper?

Posted by: Mike at December 5, 2006 12:04 PM

I disagree!!! The election process is almost always corrupt in HOAs. You can't blame the people who live there, they are victims as well.
Blame the Community Associations Institute. They are a lobby organization that represents the lawyers and managers who profit from association dysfunction.
They block every piece of legislation that would constrain the power of amateur volunteer boards who don't know what the heck they are doing.
Out of control boards breed lawsuits, and their stupidity can know no bounds (case in point) In other words, a lawyer’s wet dream.

Posted by: Jean at December 10, 2006 02:31 PM

Mike is correct. Our HOA had an attorney who supported the board in "rolling over" for three years - eg not having elections. This is despite clear statutes requiring annual elections in an HOA. The property manager also used a mixture of condo and HOA law, to muddle matters.

Both that attorney and that property manager have since been fired, after we filed a lawsuit on numerous grounds. However, until we sell our home, we will not be free from the threat of an out-of-control board.

The idea of 'democracy' in an HOA is an illusion.
It does not exist.
And in many states, homeowners do not have the constitutional protections that normally would protect them from governmental abuse.

HOAs and Condo boards regulate the daily lives of citizen homeowners - and are in this state (Florida) even granted the right to fine them. Fining is a peculiarly governmental function.
Regardless, state courts have held that once a person buys a home/condo, he has contractually waived those rights, and is subject only to the state statute which is often toothless.

The state statute on condo or HOA associations is often vague, and defers to the association documents.

Association documents are written by developers and are never intended to protect homeowners. Often, these documents have provisions that parallel ordinances or statutes that were declared unconsitutional decades ago. A good example is a provision that prohibits "offensive" or "opprobrious" words... What is "offensive"? What the association board determines it to be? What does it include?

Another example is a provision to maintain "neat lawn". What is "neat" and who defines it?

Until associations are properly considered government bodies by the law, subject to the Bill of Rights, homeowners will continue to be abused.

Posted by: Lurch at December 10, 2006 04:38 PM

Thank you very much for your input on this question.

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