FL: Man Suing Neighbors Over Alleged Illegal HOA > HOA Forum

Unanswered

Active Topics

Forums

Forums > Homeowner Association > HOA Discussions

Subject: FL: Man Suing Neighbors Over Alleged Illegal HOA

Prev Next

You are not authorized to post a reply.

Page 1 of 2

Author

Messages

KevinK7
(Florida)

Posts:282

04/14/2011 5:30 PM
It has been quite a while since I had posted about my neighborhood issue, but I wanted to update everyone who was kind enough to offer some opinions/help over the past couple years. The link on the HOATalk front page under HOA related headlines, titled "FL: Man Suing Neighbors Over Alleged Illegal HOA," refers to my neighborhood. Recently a judge had ruled that the HOA was indeed not the HOA and had no authority to act as one. I attended the courtroom to hear the arguments. While the plaintiff's lawyer had numerous court cases and documentation, the HOA hinged their argument on interpretation of what they believed the intentions of the developer was thirty years ago. They provided zero records and at one point objected to board and general membership meeting minutes from being entered as evidence because they claimed lawyer-client privileged because a lawyer was present at those public meetings. The HOA's lawyer even stated that should the lawyer rule against him, the entire fabric of America would deteriorate because of the precedents this case would set. Unfortunately this matter is still affecting the neighborhood - the HOA seems reluctant to accept the ruling and believes the interpretation only applies to the one property - the plaintiff in the court case. Because of the meddling of the HOA, 99 of my neighbors - those who signed joinder and consent forms authorizing the corporation to act as the HOA - are being sued. There are more homeowners who signed the forms, but they live in other subdivisions of the neighborhood. Just thought you all would like a little update! Thanks, Kevin

AdrianaS

Posts:0

04/14/2011 6:12 PM
Kevin, Very interesting,I am in FL, and I believe our property is in the same situation, here, but the Board refuses to admit it,and want to keep running as if they do have a right? Could y direct me to the public files,or if y know how the judge came about determining it? The problem is I dont want to take it that far, because is costing me a lot of money.

DonnaS
(Tennessee)

Posts:5671

04/14/2011 6:26 PM
Kevin, Wow, one lame excuse after another by these lawyers. Minutes are always open to the members and may be copied and used in court cases. There is only one allowence for the lawyer/client privledge and that ain't one of them " Notwithstanding any other law, meetings between the board or a committee and the association’s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors." The Board had meetings, minutes were taken and approved (or maybe not), members were present. So now, the minutes are not available for use in a court case? Tell me, did the Judge accept this? Really????

KevinK7
(Florida)

Posts:282

04/14/2011 6:27 PM
You can visit the website for the lawsuit or contact the plaintiff of the case - he may be of some help. I don't have all the documentation but he may be able to forward relevant information. The website is http://www.sandlakehillslawsuit.com He has posted some excerpts from the judge that sort of show the HOA talking out of their rear end...

KevinK7
(Florida)

Posts:282

04/14/2011 6:49 PM
Donna - It was very interesting. The judge stopped the lawyer and asked him if he was objecting to using the meeting minutes that HE HIMSELF submitted to the court and then denied it! My opinion was that the HOA's lawyer was very lawyerly - and arrogant. He was extremely condescending and whenever he cited a law or case, it was never an HOA statute, but condo or motor home law, and he would then point out that it was different but in spirit was the same. I believe the HOA could have accomplished its goals without dividing the neighborhood had they operated on different legal advice, but I am under the impression that the law firm was shopping their mandatory conversions around to drum up business for assessment collection, and by mandating hundreds of homeowners they would potentially increase business by a lot. Since this case began, there have been hundreds of "delinquent" homeowners - those who were not members who refused to pay. As I had stated before, this law firm had also did the same thing in another neighborhood I own a home in, and you should see the rules in that document - one sentence is actually half a page long!

TimB4
(Virginia)

Posts:3801

04/14/2011 6:51 PM
Posted By KevinK7 on 04/14/2011 5:30 PM Unfortunately this matter is still affecting the neighborhood - the HOA seems reluctant to accept the ruling and believes the interpretation only applies to the one property - the plaintiff in the court case. This is sometimes how the rulings work. They apply to the individual and no one else. I don't agree with it but it would depend on the actual wording of the ruling. If the ruling is worded only for the individual, I would recommend that someone gather the other members together and file the same complaint (and use the same attorney) as a group. They would cite the initial case as another example. Question: Are the covenants still attached to the deed?

KevinK7
(Florida)

Posts:282

04/14/2011 7:24 PM
The judge had stated several times the association was a voluntary organization and that they lacked the authority to act on behalf of the other sections of the neighborhood - for the covenants and restrictions, the judge stated that since the HOA was not an HOA (by law), they lacked the authority to renew the C&Rs, so the only one who could renew them would be the individual homeowner. The judge had stated that they lost any authority in 1985, when the developer sold the last home. What is even more complicated is that there were multiple developers behind the neighborhood, and one developer issued ARC control to a corporation by the name of XYZ, inc. but the problem was there was no corporation by that name. The HOA's name was similar sounding so the HOA claimed that was proof enough, and the developer intended them to be on the receiving end. I think the developer was prepping for their exit and made the document but never made the HOA to oversee the neighborhood (the developer of the plaintiff's section was developed by a different developer of the HOA).

KevinK7
(Florida)

Posts:282

04/14/2011 7:31 PM
I had tried to contact the HOA and their attorney but they won't respond. The HOA deleted all of their emails except their president's, and eliminated reference to their amended C&Rs or by-laws. They are holding a meeting which they state they are kind enough to open it up to all homeowners, but they say that a "recent ruling by the Court which was specific to one property in SLH, but has some implications regarding the operations of the HOA going forward" will be mentioned. I am confused, being the judge's words were pretty clear - the C&Rs expired on the properties and the HOA is voluntary, so what else is there to explain to the homeowners?!

TimB4
(Virginia)

Posts:3801

04/14/2011 7:51 PM
Kevin, I just read the ruling that was posted on sandlakehillslawsuit.com website. I read the ruling as follows: 1. Lot 318, and only 318, is clear of the CC&Rs. 2. The court determined that the HOA is voluntary not that it is dead. However, being voluntary, everyone who is a current member can (and in my opinion should) send a certified letter to the Board and (in my opinion) the Association attorney removing said membership. The CC&Rs for section 3 identified in item 30 on page 4 of your complaint 10-CA-11.262 specifies that those CC&Rs would automatically renew every 10 years unless a new document is submitted. Therefore, other lots of section 3 would still be covered under those Covenants. Additionally, it's possible that the individual owners who signed the Joinder and Consent forms you mention might have legally bound their lots to the amended covenants of Section 2 as well as the covenants of section 3.

KevinK7
(Florida)

Posts:282

04/14/2011 8:10 PM
It is my understanding that Florida MRTA laws effect the automatic renewal clauses in C&Rs. And even though the decision references a single lot, the situation surrounding the particular property is identical to every other property in the neighborhood, with the only difference being the date of which the C&Rs were recorded. Also, the deal about the HOA is that regardless of membership, they are claiming they can force non-members - even those who never joined - to pay any assessments, fines, etc. When my family requested information regarding their amended C&Rs, they threatened legal action and cited a collections case from another neighborhood under different circumstances. Their plan has a "roach motel clause," as in once you join, you can never leave. The only thing membership gets you is a vote, but to prevent people from becoming voluntary members to gain voting privileges right before elections, they held secret meetings and required people to become members in good standing weeks before the meeting - and they would announce a meeting after the required date to become a member in good standing. Any non-member who was "mandated" was denied access to the meetings. There is more - the HOA doesn't follow their articles of incorporation. They dictate board make up must be made from people in Section 2, but the pres doesn't own a home, the VP lives in a different neighborhood altogether, and the other board members are from different subdivisions. They don't even meet required number of board members, and to solve that, they took on a couple new people but never recorded them with the state. Their amended C&Rs were also notarized improperly, as determined by the office of the governor... There is also the issue of the lies - the board claimed the need to maintain common property as a reason to mandate neighbors to pay, but in court they admitted to owning no common property. There is just a lot of details to this case that don't add up.

KevinK7
(Florida)

Posts:282

04/14/2011 8:18 PM
Page 3 and 4 of the partial summary judgment explain that when the developer sold the last home, the HOA ceased to have interest in the land. Therefor, under 712, since it is not a HOA under 720, it could not preserve the covenants - the 10 year renewal phase. None of the other sections created a hoa of there own that could enforce the C&Rs and so after the appropriate amount of time, the C&Rs expired...

TimB4
(Virginia)

Posts:3801

04/14/2011 8:26 PM
Posted By KevinK7 on 04/14/2011 8:18 PM Page 3 and 4 of the partial summary judgment explain that when the developer sold the last home, the HOA ceased to have interest in the land. Therefor, under 712, since it is not a HOA under 720, it could not preserve the covenants - the 10 year renewal phase. None of the other sections created a hoa of there own that could enforce the C&Rs and so after the appropriate amount of time, the C&Rs expired... I read that section differently to mean that since it wasn't an HOA, then they did not have the authority to file the amended CC&Rs however, the auto-renewal would still exist as it was a part of the initial CC&Rs. However, I am not well versed in FL laws. To comment on your earlier posting, I agree that every other lot in section 3 has similar conditions to yours. However, since the ruling only specified the single lot, then every other lot would need to go through the same procedure to have them legally removed from their deeds as the court ruling does not do this. Tim

SusanW1
(Michigan)

Posts:5202

04/15/2011 5:24 AM
THE MOST IMPORTANT PARAGRAPHS ARE THE LAST TWO OF THE NEWS ARTICLE: "An HOA board member says a judge dismissed the suit against the individual homeowners, but Busch says he intends to sue all of his neighbors for his legal bills. He says he has spent hundreds of thousands of dollars. "WFTV spoke with another HOA attorney not related to the case. He said most likely individuals homeowners would not be responsible for legal feels,just the association." THE HOA CORPORATION, NOT INDIVIDUAL HOMEOWNERS, IS RESPONSIBLE FOR WHAT THE HOA DOES.

KevinK7
(Florida)

Posts:282

04/15/2011 9:08 AM
The board member was referring to a pre-trial ruling from a previous judge before it advanced to the last judge. That ruling was not set in stone. The HOA also claimed that the covenants and restrictions were not their own, but were the individual property owners. They withheld information from the previous judge during discovery, which is resulted in the pre-trail ruling. The final judge took a more detailed look at the case. The homeowners the plaintiff is suing are in Section 3 neighborhood. The HOA is in Section 2. The judge ruled they had no authority to act over section 3. I would see that the lawsuit against the homeowners may have merits because the individual homeowners were granting authority to an illegal entity which then attempted to impose its rules on every homeowner. The homeowners were therefor responsible

KevinK7
(Florida)

Posts:282

04/15/2011 9:09 AM
I don't see how every other lot owner would have to go through the same process when the ruling seems to cover every property. The HOA lawyer actually argued against this in the court room. He asked the judge to dismiss the case because a ruling for the plaintiff would be a ruling for every homeowner, and that would essentially destroy the neighborhood.

JanetB2
(Colorado)

Posts:1818

04/15/2011 9:46 AM
Hi Kevin: I'm curious as to what does the HOA maintain? The news video stated common property, but one of the comments below the news article states there is no common property maintained by the HOA.

KevinK7
(Florida)

Posts:282

04/15/2011 11:15 AM
The HOA owns nothing. The common property shown in the news report is actually county property within the subdivision that is maintained by tax assessments. The wall surrounding the neighborhood was built using a MSBU - a special tax on the neighborhood by the county. The HOA tried to get a wall built but failed to get the votes, so instead they got the county to have a vote for a MSBU, which only counts the returned ballots, so a small percentage of the neighborhood was needed for approval. That added roughly $700 in taxes to each property, collected over a couple years. (The wall is actually built on the individual homeowner's property and there has been numerous issues regarding who's insurance covers the thing - the homeowner or the HOA's. The drainage ditches and retention ponds, and street lights are maintained by county special assessments. The cul-de-sacs are county right of ways. The HOA used a county grant to install irrigation in the cul-de-sacs and entrance ways (all county property). The grant was not allowed to be used towards installing irrigation, only repairs, but the HOA used funds to install with intent to reimburse their accounts with the grant money (they said so in the newsletter). The HOA also installed electric meters at the entranceways to light the new wall. In both the instances of the lighting and irrigation, the costs associated with maintenance never existed before. The HOA was able to install these things because they signed a temporary use agreement with the county that could be revoked at any time. They installed them when they claimed they were voluntary for the purpose of establishing things that needed maintaining, giving the HOA reason to "mandate" sections and compel homeowners to pay - they also said this in newsletters and on past incarnations of their website.

JanetB2
(Colorado)

Posts:1818

04/15/2011 11:34 AM
So ... what is your opinion on this and what would you prefer to see? Do you feel there should be or do you want to have an HOA?

TimB4
(Virginia)

Posts:3801

04/15/2011 1:35 PM
Posted By KevinK7 on 04/15/2011 9:09 AM I don't see how every other lot owner would have to go through the same process when the ruling seems to cover every property. The HOA lawyer actually argued against this in the court room. He asked the judge to dismiss the case because a ruling for the plaintiff would be a ruling for every homeowner, and that would essentially destroy the neighborhood. Kevin, The ruling was very, very clear. Only the one lot was judged to be free of any covenants and hoa control. If the judge intended to say all lots in section 3 were free it would have been in the order. The judge did base the ruling partially on the fact that the HOA was deemed voluntary. However, the ruling stopped short of saying the HOA did not exist. Being voluntary, then everyone who is a member has a right to discontinue membership but they must initiate that action. I would suggest that you advise your neighbors to take the court ruling to their own attorneys and request advise on how to proceed vs. letting them think that the HOA has zero control over them. If they voluntarily joined the HOA, and by your website it appears some did, then they agreed to follow the rules of the HOA and pay membership fees. However, being voluntary, they may simply send notice withdrawing their membership. Thereby nullifying the agreement. Granted, if everyone decides to withdraw their membership, then the HOA would be dead. However, I would bet you that the Board won't present the facts in this light at the meeting. Tim

KevinK7
(Florida)

Posts:282

04/15/2011 1:37 PM
I personally do not like HOAs. Sure, in some neighborhoods they work, but I generally disagree with the concept. At one time, I was indifferent and didn't mind them. As for this particular situation, when my family purchased the home, we bought it understanding there was no HOA (we did understand certain C&Rs though), but then there came this group asking for donations to pay for a police patrol. We donated voluntarily and at the time we were under the understanding that they were THE HOA, but then things started to change (as a side note, that was an argument the HOA's attorney used in court - since people believed it was the HOA, despite records or law, it was only right that it be ruled that they are). A new board was elected and they wanted to "change" things. They wanted to spend lots more money then what the neighborhood was taking in to improve property values. When people rejected their ideas they changed lawyers and started sending violation notices and volunteers asking for signatures to change the rules - if you refused they would threaten you saying your property will be annexed by their organization and will be forced to pay. Many of my neighbors signed because they did not want to be bothered with any legal hassles or extra costs. The whole process didn't sit right with my family so we stopped voluntarily donating and sent a letter explaining our dissatisfaction. Over a couple years, the board kept a cumulative tally of signatures, even as homeownership changed, and when they got 50% of my neighbors' signatures, they filed documents with the county and demanded we pay or face legal actions. We asked for information nicely but were threatened with legal action - their lawyer told us it was the "fair" thing to do. The HOA then instructed their attorney to cease communication with us and told us to lawyer up if we wanted any documentation from them. We attended a meeting but the board refused to take questions from anyone who asked about details of their plans. We tried to attend a second meeting but the board denied access to the meeting, and then later changed venues and lied as to why they moved (they claimed the county started charging fees to use the library when in fact the building was free and owned by a local non-profit). Eventually, the board stopped announcing their meetings and only invited members in good standing. (It didn't make a difference because the board would issue proxies granting the board discretion over the vote and at every meeting, they would claim to have enough proxies to have quorum and enough to have a majority vote). Basically, every time we asked a question or did any research, we walked away with several contradictions. We were attacked for not wanting to pay our "fair share" when it was not that at all, but the limitless power the HOA wanted to grant themselves so that they could transform the neighborhood to be more like our wealthier neighborhoods, like the famous Bay Hill or Islesworth (known for their celebrities and golf tournaments). My opinion is that had the board heeded sound legal advice, they could have improved the neighborhood and continue to be voluntary, and people like my family would still be contributing, but as soon as they made these changes, membership dropped off. They didn't take a hint and now the neighborhood is more divided then ever. They really shot themselves in the foot and I think because they did things completely wrong, this particular HOA cannot continue in its present state - maybe they can continue as a voluntary social club but not a HOA (they aren't even established under HOA laws). They have turned me off to the idea of having a HOA completely. Comparatively, I have another home in another neighborhood. The same lawfirm did the same conversion to a mandatory neighborhood and since then, assessments have risen every year while the surrounding villages that remained voluntary have assessments at half the cost and they offer more services. It is basic economics...

KevinK7
(Florida)

Posts:282

04/15/2011 1:57 PM
The part that I am focusing on to make the claim that the HOA doesn't exist is that the judge stated they lack the authority to act in the other sections. They are the section 2 HOA. They are trying to enforce section 3 rules. technically, they are not the section 3 hoa. They are not the Section 7 HOA. They are only the HOA for section 2. They have no records stating they are the HOA of the other sections. What they do have is an amendment to their articles of incorporation from 1982, where the president insists that their organization is in charge of any other subdivision with a similar name and similar covenants. This is one of the reasons they believe they can act for the other subdivisions of the neighborhood. As I had mentioned Florida's MRTA law, it basically clears the title of any "claims" that are 30 years old. It was made to simplify title searches and stabilize property law by clearing old defects from land titles. An unintended consequence was erasing C&Rs for subdivisions, leaving HOAs powerless to renew them. MRTA was later amended to help homeowners preserve C&Rs, but because the Sand Lake Hills is not organized under HOA statutes, failed to keep any records of any kind, and as the judge stated, lacked the ability to represent the neighborhoods after 1985, it also lacked the ability to renew the C&Rs for the homeowners when they were set to expire, meaning the individual homeowners or a HOA they establish would be the only party to renew the C&Rs. Because many of the properties have approached or are approaching that 30 year deadline, if the C&Rs are not renewed, they cease to exist, which is the case for many properties in the neighborhood - there are some which expire next year. The problem I see is that the HOA faces an issue that if they try to get back on track and do things properly, they need to hurry, and even then, they will wind up with a hodge podge of properties, and even then, they would only be able to renew the voluntary covenants, not the mandatory ones they created...

TimB4
(Virginia)

Posts:3801

04/15/2011 2:46 PM
Posted By KevinK7 on 04/15/2011 1:57 PM The part that I am focusing on to make the claim that the HOA doesn't exist is that the judge stated they lack the authority to act in the other sections. They are the section 2 HOA. They are trying to enforce section 3 rules. technically, they are not the section 3 hoa. They are not the Section 7 HOA. They are only the HOA for section 2. They are also the HOA for anyone from section 3 who voluntarily joins that Association as the ruling didn't prevent anyone from joining that Association. Keven, all I'm saying is don't read anything in the ruling that isn't there. As with anything, the devil is in the details. In the case of laws and legalize the details are what is said, how it is said and what is not said. Tim

KevinK7
(Florida)

Posts:282

04/15/2011 2:58 PM
I understand what you are saying. I'm not trying to be difficult! There is another covenant from Section 3 that complicates things further -it states that in order for an HOA to have authority, there needs to be annual records of at least 25 homeowners as members. The HOA has no records. Without that yearly roll call, the covenants - the original covenants - state the HOA has no power. While these people may have joined voluntarily, the HOA has not had any certifiable record stating they can act. These individauls may still donate to contribute for things like the cop patrol, but the HOA cannot enforce covenants and restrictions - that is reserved for authorized HOAs or other homeowners. here is the text of that particular covenant: In order for such home-owners association to be entitled to invoke the powers of enforcement as herein granted to the homeowners association by these Covenants and Restrictions, said homeowners association shall consist of the owners of not less than twenty-five (25) lots in this Subdivision. Evidence of compliance with this percentage shall be by a membership roll signed by the owners of said Lots and recertified to within three (3) weeks of the close of each fiscal year adopted by the homeowners association, such recertification to be signed by said Lot owners. In the event the homeowners association ceases to have the required percentage of memberships at any time, such homeowners association shall lose its power and right of enforcement as granted hereunder until such time as the membership roll has increased to the owners of not less than twenty-five lots in this Subdivision. So, if 25 or more homeowners decide to donate voluntarily, they still need to sign a membership roll every year within the appropriate time frame. I guess then the HOA could become THE HOA. Unforunately for the HOA, they never did this and it seems they are so intent on doing things their way that they overlooked various covenants that are very specific. There is also another covenant that not many are familair with - it exists and some of the newer sections. The developer went bankrupt so a local non-profit organization stepped in to oversee the development. They left a covenant granting them sole authority to approve any changes. In addition to not having a membership roll, the HOA never got permission from the local non-profit, and as far as the non-profit is concerned, anything the HOA has done does not hold any weight, but they won't get involved because the matter doesn't directly affect them since they no longer have any properties in the neighborhood.

JanetB2
(Colorado)

Posts:1818

04/15/2011 3:58 PM
This is a big mess … I think if I were a homeowner and the HOA does not own anything to maintain Tim’s suggestion is what I potentially would follow. I would take the court info to an attorney and see if he could file some kind of motion and have my property title cleared. The other reason I would have it cleared is also because of a statement Susan made above. Here is where this one also potentially gets interesting as Susan posted above: Posted By SusanW1 on 04/15/2011 5:24 AM THE HOA CORPORATION, NOT INDIVIDUAL HOMEOWNERS, IS RESPONSIBLE FOR WHAT THE HOA DOES. This is true to an extent as the HOA is generally a Non-Profit Corporation. However, it is comprised of Members whom are homeowners. When the attorney makes the statement of MOST likely individual homeowners would not be responsible, just the association … where does the association acquire its funds? It acquires the money from the homeowners. Now in this case here where it could get interesting is the HOA is a voluntary one and not mandatory. In a mandatory HOA the association essentially passes costs for association to the homeowner’s property. In a voluntary HOA the homeowner’s are not required to pay association fees and you cannot lien the property. The association was the defendant in this lawsuit and if attorney fees are potentially awarded what then happens when they have no money to pay said attorney fees? Am I missing something here?

KevinK7
(Florida)

Posts:282

04/15/2011 4:16 PM
Indeed it is interesting. The judge stated it is voluntary, so can the HOA force those voluntary members it has to pay up? I am curious as to how the HOA is going to go about this all - they have a meeting next month where they are finally letting non-members in, but I don't know if they have dropped their claim that non-members can have assessments forced on them... I tried contacting them or their lawyers but they had not responded...

AdrianaS

Posts:0

04/15/2011 4:50 PM
KevinK7 Very very interesting, question do you happen to know the name of the firm representing the Plaintiff? I would like to pay for a consultation with them, my situation here sounds similar in a smaller scale. Thank you, for sharing the case with us.

KevinK7
(Florida)

Posts:282

04/15/2011 5:06 PM
I believe the information can be taken from the plaintiff's website...

AdrianaS

Posts:0

04/15/2011 5:41 PM
I checked but it does not show the attorney's. Than you

KevinK7
(Florida)

Posts:282

04/15/2011 6:04 PM
According to the WFTV article, the lawyer's name is Fred O'Neal. I think he is based in Windermere...

AdrianaS

Posts:0

04/16/2011 7:30 PM
I am very grateful for the information. Thank you

You are not authorized to post a reply.

Page 1 of 2

Forums > Homeowner Association > HOA Discussions > FL: Man Suing Neighbors Over Alleged Illegal HOA