Jupiter homeowner faces foreclosure for flying U.S. flag

[Desertdog]

It looks like the liberal judges are at it again.


http://www.sun-sentinel.com/news/lo...ep11,0,4807489.story?coll=sfla-home-headlines

By Peter Franceschina
Staff Writer
Posted September 11 2003

Defiant flag flier George Andres once again is facing the prospect of losing his Jupiter home after a Palm Beach County judge ruled Wednesday that his homeowners association could go forward with a foreclosure sale next month to collect legal fees.

Andres, a Marine veteran, said he was worried about losing his home, but he vowed to appeal the latest ruling in a legal saga that has spanned more than two years.

"We are going to fight," Andres said.

It is the second time in recent months that Andres' home has moved toward the auction block. He was granted a reprieve in May when Circuit Judge Edward Fine agreed to reconsider his order authorizing the foreclosure.

The Florida Attorney General's Office stepped in and argued that Andres' home was constitutionally protected under the state's homestead law from foreclosure by a homeowners association attempting to collect a legal debt.

Andres' homeowners association prohibits flagpoles, and Andres has a 12-foot flagpole in his front yard. Another judge ruled that Andres didn't have a right to put up the flagpole, and the association filed a lien on the property to collect roughly $21,000 in attorneys' fees and legal costs expended in winning the case.

Fine rejected the argument from the Attorney General's Office and issued a ruling Wednesday that found the association's right to file a lien against the property was established in 1982, when its covenants and bylaws were recorded in land records, six years before Andres purchased his home.

West Palm Beach attorney Steven Selz, who represents the homeowners association, said the ruling makes sense.

"There has to be a way to give the association a right to enforce its claims on the property," he said.

Boca Raton attorney Barry Silver, who represents Andres, said he would file an appeal. Mediation has failed, while the attorneys' fees continue to pile up for both sides.

"They find George to be very intransigent because he has the right to fly the flag, and they think he is stubborn because he fights for that right," Silver said.

Selz said he hopes Andres decides to reach a settlement rather than face losing his home, which is scheduled to be auctioned on Oct. 9.

Andres said previous settlement offers required more of a compromise than he was willing to make.

"They said remove the flag and the flagpole, and that is not a compromise," Andres said. " I'm 66, and I don't have much left anyhow. We have to go ahead and fight."

Peter Franceschina can be reached at [email protected] or 561-832-2894.

 

[KC]

"There has to be a way to give the association a right to enforce its claims on the property,"

:banghead: :banghead: :banghead:
If there is anyone in the whole world that I would like to see get terminal tetanus infections, it's this HOA, and the ******* ******* lawyer who uttered this remark. After all; if there isn't anyone left on the HOA, and no lawyer to press the case, it becomes very much less likely that this guy will loose his home to a bunch of blood-sucking social parasites over a twelve-foot flagpole. Guess the retired Nazis and Communists that tend to congregate down there don't like that symbol shoved in their faces every day.

....um.
Sorry. I'll shut up now and talk quietly to myself over here in this little corner....

 

[NewShooter78]

So he's going to loose his property because he's flying Our flag on a banned flagpole. ***! I swear some people in this country are just plain nuts! You think that lawyers would be comming out of the woodwork to help this veteran out. Where's the ACLU when it is needed. I'd say this gentleman has earned the right to fly that flag no matter what a HOA has to say.

 

[spartacus2002]

I will never own a home with an HOA.

The place I'm renting has one, and they send me a nastygram because I had grass growing between the cracks in my driveway. The landlord went nuts, and the property manager sent me a violation letter.

Thing is, I fixed it the day I got the first nastygram. The HOA didn't notify the landlord for TWO WEEKS, so by the time TPTB get involved, it's been long ago rectified.

I look around the neighborhood, and now I'm the only one WITHOUT grass in the cracks in my driveway...

 

[Spot77]

The HOA smells money, and just think about what all that money could do FOR THE CHILDREN, who have had to look at that nasty, overbearing symbol of American freedom for so long.

Hey Spartacus....Tell your landlord to FIX the cracks in the driveway, and the grass problem will take care of itself. Send a letter to the HOA regarding the owner's neglect of the property; how dangerous thise cracks are; AND be sure to specify that you are RENTING the property, and see how everybody likes THAT.

 

[starfuryzeta]

Hate to do it, but gotta play devil's advocate for a second.

Fine rejected the argument from the Attorney General's Office and issued a ruling Wednesday that found the association's right to file a lien against the property was established in 1982, when its covenants and bylaws were recorded in land records, six years before Andres purchased his home.

So, he moved into the HOA knowing the bylaws. He "came to the nuisance". Similar, not identical, but similar to people move into areas knowing that a gun range is there. However, unlike Andres, the ranges try to be good neighbors.

<advocate off>

I hate HOA's. I don't want some other tenant telling me what I can or can't do with my land, house, property, etc. You move into a HOA, you better know what you're getting into. However, if there was a RKBA HOA....with dues funding a neighborhood range....that just might be different.

 

[Lone_Gunman]

To play the Devil's Advocate here, the veteran did enter to Home Owner's Association voluntarily and knowing full well what the covenants were.

Why did he join if he knew he was going to immediately break his word and violate the agreement?

Also, the US Flag is thrown into this discussion to create emotional appeal, and nothing more. The HOA does not disallow the flag. It disallows free standing flag poles.

If he had flown his flag from an angled pole attached to his porch or house, he would not have violated the covenants, broken his word, or ended up in this mess.

The bottom line is, don't enter into legal contracts that you will not honor.

While this man my be patriotic, he is nonetheless wrong.

 

[Spot77]

No doubt he's in violation of the HOA agreement.

But the HOA is just WRONG, WRONG, WRONG!

To violate a person's freedom is just wrong. This association, with all of it's members can't find a way to peacefully settle a dispute with ONE resident? Over the nation's most emotional symbol?

Also remember; it's probably not that easy for a 66 year old veteran to remove a flagpole.....I throw the veteran part in there because in addtion to the physical difficulty of removing this flagpole, the emotional trauma is just as tough.

I suppose we don't know how much the HOA has offered to help, or what solutions they've suggested since these articles are specifically written to hide certain facts so the public will be inflamed for one side or the other

Is the HOA right? No. By law, do they have the right to pursue this? Yes.

But it's just not right to take a 66 year old's house over this. It's gotten way out of hand, no doubt due to a few bruised egos.

 

[repsychler]

starfuryzeta
However, if there was a RKBA HOA....with dues funding a neighborhood range....that just might be different.

That's basically what Front Sight, Nevada will be. Maybe I'll win the lottery so I can have a winter home there.

 

[feedthehogs]

If George had defied orders when he was in the Marines, he would have been court martialed.
He knew what he was doing was wrong and hoped the media exposure would change opinions.
But the association already spent the money fighting the case. They have a right to recover those funds.
If you threw one rule out the window, you would have to throw them all out.
George could have flown the flag on the house and fought to change the association laws to allow in the ground flag poles while still being patriotic.

The other down side is that he has Barry Silver representing him at no cost.
Barry has a reputation of throwing himself in the middle of a media blitz representing the down trodden for no cost. The problem is Barry loses most everything he gets involved in.

Don't throw the veteran or flag angle into this. It has no place.

 

[Lone_Gunman]

Spot, you are appealing to emotion.

The HOA is not wrong. They have freedom to choose what is allowed and what is not allowed. They are limiting no one elses freedom, because the home owners voluntarily agree to participate. If a person freely enters an agreement stating they will maintain their property in a specific manner, then they certainly should honor that agreement.

It is no more tragic for a 66 YO veteran to lose his house, than a 30 YO non-veteran. Its not the HOA's problem that it might be hard for a 66 yo to remove a flagpole. He put it up, so he must have the wherewithall to take it down.

In my neighborhood, there is a covenant against above-ground swimming pools. I knew that when I bought the house, so I wouldn't consider putting one up, because it would violate an agreement I had made.

The vet may be 66, but he needs to grow up, take some responsibility, and honor his commitments.

 

[Double Naught Spy]

I don't think many of y'all understand the situation described and are instead are knee jerk reacting to the apparent trampling of Andres rights.

First and foremost, the title of the thread appeals to this knee jerk reaction and is in error. Andres isn't facing foreclosure for flying a US Flag. So get off the soapbox about the patroitic stuff. This is not a patriotism issue. What Andres may get foreclosed for is not the US Flag, but for violation of the homeowner's association contract that he agreed to when he purchased his home. The association does not allow flag poles or flags. He is displaying both. It could have been a Russian flag, Disney flag, or whatever and he would still be in the same trouble.

How can the homeowner's association take away his rights? First of all, they did not take away his rights. He agreed to sacrifice certain rights as being a member in the homeowner's association. The association has taken away his rights about as much as an employer takes away your rights. It is a contractual deal. When you are employed, you agree to sacrifice some rights such as freedom of speech, expression, and religion. You can get fired for backtalking the boss, for wearing your tyedie shirt to the job when a suit is required, and you likely won't be allowed to hang up all your religous stuff around your work area.

I find it really amusing at how many of y'all think Andres is being treated so badly when it was Andres who made the idiotic agreement to be a member of the homeowner's association that no doubt was tied directly to the purchase of his house. He should not have purchased the house if he did not agree with the homeowner's association obligations.

Homeowner's associations suck. I can't understand why anyone would purchase a home in an area with a homeowner's association.

 

[Baba Louie]

Breach of Contract, plain and simple.

Andres could always work to get together enough of the voting members to revise the rule and set a policy guideline for freestanding flagpoles if he so chose, setting up height limits, placement, lighting and limits of flag size and time of day for flag display...

Not an easy task, but it beats losing your home and whining about it, expecting the problem to go away via court injunction.

His decision, His consequences.

HOA typically keep home values up (and that's a good thing) by setting guidelines and rules. Read ALL of the text in your agreement before you sign and decide a little anarchy is a good thing.

Adios

 

[Lone_Gunman]

Baba Louie,

I think you summed the situation up well, and I agree totally.

 

[Dorrin79]

While I agree that the HOA (and all HOAs, for that matter) are basically evil, he did knowingly enter into a contract with them, that he is now in breach of.

I deliberately found a house in a neighborhood with no HOA. Some of my neighbors having not-so-nice lawns is a small price to pay for my freedom to not worry about mine either.

 

[Augustwest]

Homeowner's associations are a great example of why pure democracy is a bad thing - you submit to mob rule when you choose to live somewhere with covenants like these.

While it's a foolish rule, he chose to live in a community that promulgates such nonsense...

 

[Coronach]

Agreed.

While it is a stupid rule for the HOA to have, it is the HOA's right to make such rules. Andres did not have to live there. He did not have to purchase a house with a covenant requiring him to obey the rules of the HOA. But he did.

This is why I will never, ever, ever live under a homeowner's association. Now, I'll be the first to agree that most of their rules are reasonable and proper, and do keep the place looking nice and keep resale value up. However, even if they have no weird rules when I move in, the covenant is likely worded in a manner that requires compliance with all existing and future rules of the HOA.

Its the "and future" part that will get yah. How many of us would accept a little reasonable gun control if we somehow magically knew that it would be the end of it, forever and ever amen? Under those conditions you'd be a fool not to consider it...the same way that in the real world you'd be a fool to acquiesce.

So, yes...must keep lawn mowed...must keep fences to X height...ok. You can live with that? Fine. What happens when the blue-haired lawn nazis get control of the HOA and start making ever increasing demands on you?

Thanks, no.

Spot:

But the HOA is just WRONG, WRONG, WRONG!

To violate a person's freedom is just wrong.

Uh...sir. This is what homeowner's associations do. This is their sole purpose. Sure, the restriction of individual liberty is quite often reasonable and for the common good, but never pretend that even the most benign of HOA rules are a retriction on the liberty of the property owner.

This association, with all of it's members can't find a way to peacefully settle a dispute with ONE resident? Over the nation's most emotional symbol?

This implies that the homeowner was willing to cooperate. My guess is that anyone thick-headed enough to 1. agree to follow a set of rules and then 2. deliberately break the rules for 3. 6 years (IIRC), is probably not willing to work with the HOA....unless "working with the HOA" means the HOA giving up and allowing him to fly his flag in peace.

Again...silly, stupid rule. But he agreed to follow it.

Mike

 

[DRC]

Correct me if I'm wrong here...

And granted a contract is a contract but I'm unaware of any provisions in an Associations contract that can legally allow them to foreclose on property purchsed and being paid for by another. The only people with any legal authority to do this that I'm aware of are the mortgage companies for non payment or the Federal Government.

I'm very curious as to how this works so if someone envolved with one of these associations can shed some light on how they can do this I'd be most intrested.

Thanks in advance,

DRC

 

[Dorrin79]

I'm pretty sure that an HOA contract can specify foreclosure/seizure to recover unpaid dues/fees/penalties.

I don't know if many actually do include a clause to that effect, but it would seem clear that this one does.

Some HOAs charge very high fees (approaching prop. tax levels at times) and in this guys case, they are also holding him liable for legal fees resulting from the whole issue.

 

[Spot77]

Uh...sir. This is what homeowner's associations do. This is their sole purpose. Sure, the restriction of individual liberty is quite often reasonable and for the common good, but never pretend that even the most benign of HOA rules are a retriction on the liberty of the property owner.

--------------------------------------------------------------------------------

I meant to put a sarcasm note on that one. My fault.

And I'll say it again, I do believe the HOA has the law behind it, but it still doesn't make it right. The law also says we must go through background checks, limit our variety of the evil black "assault" rifles, and all the other b.s. that limits our RKBA. But is THAT right either? Slightly different scenario, I know, but I think it's a fair comparison so you can understand why I say this.

---------------------------------------------------------------------

This implies that the homeowner was willing to cooperate. My guess is that anyone thick-headed enough to 1. agree to follow a set of rules and then 2. deliberately break the rules for 3. 6 years (IIRC), is probably not willing to work with the HOA....unless "working with the HOA" means the HOA giving up and allowing him to fly his flag in peace.

Again...silly, stupid rule. But he agreed to follow it.

Mike
------------------------------------------------------------------------
Maybe it's one grouchy new neighbor that's complaining about it, and the other 99.7% of the residents didn't care for 3.6 years. There's the media again, with an interesting article, but not enough meat for any of us to know everything about it.

As I said, this probably spun out of control due to some bruised egos. On both sides.


And yes I'm falling prey to the emotional side of this. No doubt. I don't see that as a bad thing. Laws and rules aren't always right, and should be challenged. God bless the old man and I hope everybody can come out of this a winner.

Oh, one more quick thought. Foreclosure might still be reaching a bit. All the HOA has to do is file the lien, and when the owner dies, the house can't transfer or be sold until the lien is settled. Or the money from the sale of the house goes to: The mortgage holder first, to pay off any outstanding loan. Then the HOA, as a lienholder gets their money, usually with a reasonable interest.

Or the next owner can agree to pay the lien as part of their settlement deal. During the title search on the property, the lien will appear in the land records and fall under the "Lis Pendis" rules (Latin I believe for "Pending Litigation"
Source : Md. Supplement for Modern Real Estate Practice
By H. Warren Crawford, and John F. Rodgers, III

I think Florida's real estate laws lean even more in favor of Owner's rights than Md.; not sure though. Any Florida Real Estate Lawyers here? (Don't worry, we won't make too many lawyer jokes).

 

[DRC]

That's where I'm confused.

If you are buying a house and there is a home owners association attached to the subdivision I'm curious as to how they get deeding on the property to take it to foreclosure. It seems like an uninforceable rule in the contract although fining the home owner would be plausible because of the collective agreements with the other homeowners but even that would be difficult to enforce I would think.

This particular association must be charging the home owners way too much money if they can afford all the legal fees associated with this. Makes one wonder. I'm curious to find out how these Home Owner Associations operate in the even that I end up moving in the near future to a subdivision where these are prevelant. Some areas won't even let you buy a house unless you are willing to sign with and abide by all the Association rules. I've never read one of the contracts or done any real research to find out how far the long arm of the law reaches from one of these associations.

Just curious,

DRC

 

[Bill Hook]

What is to stop the HOA from specifying that homeowners may only have intercourse in a missionary position? It's in the covenants, afterall (hypothetically speaking).

Some things are a little to asinine and intrusive to be reasonably enforced. I'll guess the devil's advocates will say that that behavior goes on inside, out of public view.

You can bet that anything prohibiting Jews, Blacks, Hispanics, Asians, homosexuals, women, etc. would be unenforceable.

 

[Baba Louie]

Bill Hook et al,

Here in Las Vegas, whenever a developer wants to develop a PUD with CC&R's he/she/they have to have them drawn up and submitted to the City/County planning/zoning dept for review and approval prior to implementation. They are then "Restrictions" on the deed that you (the buyer) purchase when buying your home. All kinds of things may be included, but they must fall under the guidelines that the planning/zoning depts have, such as number and types of pets f'r instance, parking autos in garage, lawn maintenance, house upkeep (paint) etc.

They are usually walled/gated communities (not always tho). Monthly association fees apply.

I've got 8 or 9 sets of various CC&R's here in my office, each about a ream of paper thick (500 sheets or so) with design guidelines, front end legal boilerplate, types of planting allowed, procedure for remodeling home, etc.

I read them because I design homes and other buildings and have to follow the guidelines. I like to point out to each client the pitfalls I find when going over them and you'd be surprised how many of them DO NOT READ THE CONTRACT THEY'VE SIGNED!!!

Its that "social contract" thing... you do give up something for something (quid pro quo or something latin).

As for stating romantic positions allowed... I haven't run into that one yet, but if I do, I'll PM ya.

Noise levels? Its in there.

Flagpoles? Real common.

High property values? Thats why they're there.

Liens on property? Oh Yeah.

Even if you're not in a HOA here in LV, should you fail to pay your trash bill for a while... Lien. Go long enough, small claims court. Go farther? They can process you for restitution.

And you thought this was a "free" country, didn't ya? Try not paying your property taxes for about a year or three.

Adios

edited to respond to Bill Hooks last comment about racism... I've got a copy of some CC&R's from the 60's for a neighborhood known as McNeil Development where I was shocked to read, "No families of color are allowed". Used ta be you could do that. Not no mo.

 

[Quartus]

And granted a contract is a contract but I'm unaware of any provisions in an Associations contract that can legally allow them to foreclose on property purchsed and being paid for by another. The only people with any legal authority to do this that I'm aware of are the mortgage companies for non payment or the Federal Government.

IIRC, the HOA sued him for the legal fees and won a judgement, resulting in a court ordered sale of his assets (the house) to pay the judgement. "Foreclosure" is probably the wrong term to use.

This isn't complicated. You agree to the rules, you keep the rules. Don't like the rules, don't sign the contract. The 'patriotic veteran' here is just a big spoiled brat crybaby. His character is no different from the spoiled brat leftists except for his political leanings.



But watch it. The rules can be changed. A friend of mine sold his gun store in So Cal and moved to Eyedeehoh. Bought a house on 5 acres in the woods where there was an association. More folks moved in, mostly tree-hugger types. After a couple of years of "Oh, I can't be bothered going to those Association meetings", my friend found himself fined for violating the NEW RULE against shooting within the association limits.

HOAs BAD! Freedom GOOD!

 

[gunsmith]

I dont care!

let him fly the flag in peace!
the HOA should be DOA for messing with him