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Subject: FL Covenant Expiration MRTA
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GwenG
(Florida)

Posts:555


02/24/2013 5:08 AM  
At a recent Board meeting, Directors voted to file a Notice of Preservation for Amendments to our Covenants recorded a few years ago. A resident, who was familiar with MRTA, asked if our Covenants had expired because they had been recorded in 1972 thus would have expired in 2002. The resident was told NO.

The resident then observed that FL case law held that Amendments (to Covenants) were legally insufficient to prevent Covenants from expiring and a statute-prescribed, specific notice was required by MRTA within the 30 year period. The Board's response was to the effect that the "attorney advised us professionally on this action".

Question #1 for Readers: Is the attorney's written opinion available for inspection by Owners under Official Records? (We think the opinion is not concerning personnel matters, pending or actual litigation or proprietary work product and should be available for inspection.)

Question #2: Does anyone know of an HOA attorney in central Fla who is expert on MRTA issues AND who represents homeowners (rather than HOA's).

As background, this HOA is made up primarily of out-of-country snowbirds and is mostly apathetic and uninformed. The management company and Board are generally secretive and hostile to any questioning of their actions.
LarryB13
(Arizona)

Posts:4099


02/24/2013 6:39 AM  
Posted By GwenG on 02/24/2013 5:08 AM

Question #1 for Readers: Is the attorney's written opinion available for inspection by Owners under Official Records?

Question #2: Does anyone know of an HOA attorney in central Fla who is expert on MRTA issues AND who represents homeowners (rather than HOA's).




Gwen:

#1 My personal opinion is that whenever a board justifies its actions by relying on a written opinion from their attorney that the board should make that opinion available to the members. My experience has been that when an attorney advises his client, his client never fully understands and places his own interpretation on the advice but nonetheless says, "Our attorney told us ...." The attorney's written opinion should also refer to the authorities he relied on to arrive at his conclusions and anyone who wishes to challenge the advice needs to be aware of the sources. I am not aware of any law that requires disclosure, however. Remember that if you were to file a lawsuit, the opinion may be required to be produced under discovery rules although the reality is that in a court of law the HOA's attorney's opinion carries no greater weight than that of the opposing counsel.


#2 My experience with attorneys who specialize in HOA law is that they are no better -- and in at least one case far worse -- than a run-of-the-mill lawyer.

Since you already have access to at least one Florida court opinion, start with that. The written opinion should identify who represented the parties and you would be wise to contact the lawyer whose arguments prevailed. You might also get onto a site such as findlaw.com and search Florida opinions for other HOA MRTA cases to obtain the names of prevailing attorneys.

TimB4
(Virginia)

Posts:15081


02/24/2013 6:55 AM  
Gwen,

You didn't say if you were covered under FL 720 or FL 718 (condominiums). They pretty much mirror each other but not always.

Per FL 720.303(5) and FL 90.502, the opinion is likely protected and does not have to be released to the membership as it could be considered a legal theory of the attorney prepared in anticipation of possible litigation over MRTA.

Note, if the Declaration has expired, then per 720.405 (6) a majority of the owners need to approve reactivating them and not just the board.

You may want to spend a few hundred and get your own legal opinion (but I expect that this is why you asked for references to attorneys). I don't know of any licensed to practice in FL. You might want to research MRTA cases in the court system and select attorneys who won those cases.
LarryB13
(Arizona)

Posts:4099


02/24/2013 7:15 AM  
From the questions I assumed it was an HOA instead of a condo. I cannot imagine how a condo could exist without some sort of declaration in place.

KevinK7
(Florida)

Posts:1328


02/24/2013 8:23 AM  
If you are looking for an attorney in Central Florida with experience defending homeowners I may be able to direct you to a person who may be able to help you. I can email you the information.

I also had a question.

Say the covenants have in fact expired. If the original covenants are revitalized pursuant to MRTA, do the amendments remain? Has this been an issue? If I remember correctly, MRTA renews the original covenants but revitalizing more restrictive covenants then the original would require a greater percentage then just a simple majority. Right? I'd have to look this up later (I'm at work on my lunch break).
GwenG
(Florida)

Posts:555


02/24/2013 8:38 AM  
Thank you everyone for your help.

We are an HOA under FS720

@Kevin: please email [email protected]
GwenG
(Florida)

Posts:555


02/24/2013 8:38 AM  
Thank you everyone for your help.

We are an HOA under FS720

@Kevin: please email [email protected]
GwenG
(Florida)

Posts:555


02/24/2013 8:57 AM  
You wrote: "Say the covenants have in fact expired. If the original covenants are revitalized pursuant to MRTA, do the amendments remain? Has this been an issue? If I remember correctly, MRTA renews the original covenants but revitalizing more restrictive covenants then the original would require a greater percentage then just a simple majority. Right?"

Kevin, it would logically seem that any action intending to "address" a defunct Covenant would be meaningless. This is why the resident asked the Board what problem they intended to solve by recording a Notice of Preservation of an Amendment. Florida case law says recording or republishing an Amendment is not sufficient to avoid the heavy hand of MRTA. However, during the revitalization process, I would guess that such Amendment would be incorporated in the re-write as it had already been approved by the voters, eh?

From what I have read, the revitalized Covenants can only delete references which have no more meaning (such as developers) and incorporate current statutory legislative changes which specifically preempts the governing documents and can be no more restrictive than the original. It is essentially an updating of a document as I understand it.

I have read that any new restriction would have to be agreed to by each homeowner, since it was a voluntary encumbrance. Does this mean the revitalized HOA is necessarily voluntary? (I suppose this is what we pay the lawyers for!)
JohnC46
(South Carolina)

Posts:7113


02/24/2013 2:20 PM  
Gwen

Why would you want to stand in the way of the BOD doing this? What is your motive?

Thanks
LarryB13
(Arizona)

Posts:4099


02/24/2013 5:10 PM  
Gwen,

Last week there was a thread regarding an Iowa statute similar to Florida's MRTA, but even more restrictive. I am not sure if that thread still remains, but the link to the Iowa court opinion is
http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20120229/1-867.pdf

According to this opinion, a declaration of property restrictions must be renewed every twenty-one years or sooner, the renewal must be approved by at least a majority of the owners, it must refer back to the original recording, it must be properly signed and notarized, and it must be recorded in a special book that each county recorder must maintain just for that purpose. In this case, the owners timely attempted to renew but obtained signatures from only five of fifteen owners, failed to have the document notarized, failed to refer back to the original recording, and failed to have it recorded in the special book. The court ruled that the CC&R's became void because of the owner's failure to comply with the statute and that their subsequent attempt at renewal was meaningless.

While this is not directly applicable to Florida's MRTA, you might find it helpful to read the above case as the court's decision was based on a multitude of omissions and errors committed by the owners who tried to renew their covenants and failed badly. You may find that your own HOA failed to comply fully with the MRTA.

GwenG
(Florida)

Posts:555


02/25/2013 4:12 AM  
Posted By JohnC46 on 02/24/2013 2:20 PM
Gwen

Why would you want to stand in the way of the BOD doing this? What is your motive?

Thanks




We do not attempt to stand in the way of BOD legally representing the homeowners. Our HOA has a long standing and regrettable history of incompetence and deception by our Board and Management company. Our motto is "Git 'er done...twice!"

We only seek the truth about the status of our Covenants so that owners may participate in the governance of their association in an informed manner.
JamesA9
(Texas)

Posts:1


02/26/2013 2:12 PM  
Gwen, Did you find out if the HOA's Attorney's advise was correct? Just curious.
GwenG
(Florida)

Posts:555


02/26/2013 6:01 PM  
Posted By JamesA9 on 02/26/2013 2:12 PM
Gwen, Did you find out if the HOA's Attorney's advise was correct? Just curious.




I have not yet set up a consultation as I was awaiting a response to our request to be provided a copy of the HOA Attorney's opinion first. I was provided a copy of that letter just hours ago.

The pertinent portion reads: "...we are of the opinion that the most reasonable interpretation and conclusion is that the Association's 1986 Amended Covenants and Restrictions are a replacement of the prior Declarations (1972, Unit 1, 1974 Unit II and 1975 Unit III). As such, the 1986 "Amended" Covenants and Restrictions are appropriately deemed to be the recorded Declaration for the calculation of the period per Chapter 712, Florida Statutes. This means that the Association's Declaration has not expired pursuant to MRTA".

From what I have read, there are several problems with this opinion.

1. From what I have read, Root of Title begins with the first deed issued after the recorded 1972,4,5 Declarations-this would have been 1/29/73. On that deed, only the land plat information was described with the usual "subject to...etc".. The attorney re-defines the Root of Title as occuring in 1986 with a recorded amendment.

2. Second, MRTA provides that the "notice" which intends to continue the declaration must be specific and the underlying document must be re-recorded or specifically referred to with OR Book/Page numbers. The referenced 1986 Amendment document only references the OR plat recording info and makes no specific reference to the Declaration OR Book/Page.

3. Notwithstanding the above, the 1986 Amendment would be an insufficient Notice of Preservation per MRTA. The "notice" must be ratified by 2/3 of the Board of Directors to comply with the requirements of MRTA. The subject document is an amendment of various matters--a housekeeping of sorts--and is not in the prescribed form required by MRTA.

I am somewhat shocked by the Attorney's remarks which hinge the question of the status of our Covenants on an Amendment recorded in 1986 which do not specifically mention the Declaration of Covenants.

Readers--am I missing something here?


KevinK7
(Florida)

Posts:1328


02/27/2013 7:41 AM  
It is my understanding that the root of title will refer to a particular book and page of the applicable document - that being the original covenants and restrictions. Just because the neighborhood amended and restated the original covenants, they did just that - amend them, not replace them. Your title still refers back to the original documents so MRTA would apply to the original document. I believe this is firmly supported by case law. Your HOA's attorney is getting creative with interpretations. I have a court case that you may find helpful but I will have to find it when I get home.

GwenG
(Florida)

Posts:555


02/27/2013 10:02 AM  
Thanks Kevin for taking time to look up the case you refer to. I am reading everything I can about this. I believe the Attorney opinion is loosey goosey; I characterized it as "wingin' it". I dreamt about "MRTA" last night in my sleep! I have made contact with an attorney, as well. It's time to launch the question.
KevinK7
(Florida)

Posts:1328


02/27/2013 12:41 PM  
Matissek v. Waller, 51 So.3d 625 (Fla. 2d DCA 2011)

In Matissek v. Waller, Gerhard and Kelly Beth Matissek built a structure on their property in Pasco County. The HOA argued that the Matisseks did not follow the restrictive C&Rs. The Matisseks argued various bases, one being MRTA. The association responded by stating the restrictions were not eliminated because of various later recorded instruments referred to the restrictions and because the restrictions were re-recorded after the Matisseks bought their property.

The Second District Court of Appeal agreed with the Matisseks because the later instruments did not specifically refer to the location in the public records where the original restrictions were located, and because the re-recorded restrictions were outside the chain of title of the Matisseks. As a result, MRTA eliminated the restrictions.

May also apply: Judge Lisa Munyon’s March 4, 2011, “Order on Plaintiff’s First Partial Summary Judgment Motion – Marketable Record Title Act,” in Busch v. Sand Lake Hills Homeowners Association, Inc., Case No. 10-CA-11,262.
MelissaP1
(Alabama)

Posts:6904


02/27/2013 2:00 PM  
May I ask what does this all matter anyways? What is your final point. Let's say you have ALL of this information, court cases, yada yada in your hand. What is your point to do with it? Seriously state your issue and stop dancing around it by looking up laws (The lawyer's job to do as they are practicing the law) and not just going for what you want. Do you want the HOA to disband? Do you not want to follow the rules? Do you think the HOA can't enforce rules? Let's just get to the point so you can read your own HOA rules on how to go about it.

Former HOA President
KevinK7
(Florida)

Posts:1328


02/27/2013 2:23 PM  
Posted By MelissaP1 on 02/27/2013 2:00 PM
May I ask what does this all matter anyways? What is your final point. Let's say you have ALL of this information, court cases, yada yada in your hand. What is your point to do with it? Seriously state your issue and stop dancing around it by looking up laws (The lawyer's job to do as they are practicing the law) and not just going for what you want. Do you want the HOA to disband? Do you not want to follow the rules? Do you think the HOA can't enforce rules? Let's just get to the point so you can read your own HOA rules on how to go about it.


Gwen had wrote that "We only seek the truth about the status of our Covenants so that owners may participate in the governance of their association in an informed manner."

I take it that she, and possibly others in the neighborhood are trying to make sure the HOA is operating in accordance with the law. If the covenants did indeed expire and the HOA continues to act, assessing, fining, and or plain involving themselves in matters they have no legal right to be involved in, I would think that that could open up not only the HOA but the membership to a very big liability.

I have recently read of one HOA that has declared bankrupt and has to sell off it's common property to satisfy a judgement against them. Imagine the same happening to this HOA (or any for that matter) that glosses over the law causing some potential for problems in the future that could destroy the entire fabric of the community.

If doing this research, consulting with a lawyer, and fighting just to get HOA business squared away and current, then I think that is great.

Another example - look what happened to my neighborhood. Nobody had problems paying the HOA when they thought it was voluntary. They paid when they thought they were threatened but since the judgement against the HOA people stopped paying and the HOA essentially folded up shop. There is virtually no more community-wide presence. All the good things the HOA could have accomplished is gone. All because the HOA acted improperly.
JohnC46
(South Carolina)

Posts:7113


02/27/2013 2:47 PM  
I am of the opinion that Gwen and Kevin believe it is a battle of them (the association) against us.

They can say whatever they want about crossing T's and dotting I's but the bottom line is they do not like the way their association is doing it and they want to challenge them as often as they can.

Personally I do not think either one will ever be happy in any association.

I could be wrong.
MelissaP1
(Alabama)

Posts:6904


02/27/2013 2:59 PM  
I am just like why are you looking up laws and looking at mundane things like MRTA? What is your point and just go for it. A lawyer is paid, passes a bar exam, and is LICENSED to practice law. It's their purpose in life. So if you have an issue with your HOA let them do their job and look up court cases, case law, or laws in existence. You are NOT qualified to do so nor have the ability to translate the law. Neither would the people who you are so gung-ho to look all this stuff up to toss in their face. They are NOT professional people on a HOA. It's just your neighbors who only qualification is they bought into the place. Seriously, if someone came up to me throwing all these law references I'd tell to go tell it to the lawyer cause I am just doing my job the best I can by the rules I have at hand.

A HOA has the ability to resolve it's issues INTERNALLY. It is set up that way without ever needing to go to a lawyer other than lien or foreclosure filings basically. So if you have an issue with your HOA simply state what your issue is. It is YOUR HOA.

Sorry for my rant...It's just when I see people who get all caught up in looking up all these laws and stuff without looking at their own documents or being involved in a solution, I get a bit frustrated. State your point on the solution you want to see and work on getting to that. All this other legal crap is left to the professionals if you so choose to hire one...There done...Whew...

Former HOA President
SherryS2


Posts:0


02/27/2013 3:43 PM  
Posted By MelissaP1 on 02/27/2013 2:59 PM
I am just like why are you looking up laws and looking at mundane things like MRTA? What is your point and just go for it. A lawyer is paid, passes a bar exam, and is LICENSED to practice law. It's their purpose in life. So if you have an issue with your HOA let them do their job and look up court cases, case law, or laws in existence. You are NOT qualified to do so nor have the ability to translate the law. Neither would the people who you are so gung-ho to look all this stuff up to toss in their face. They are NOT professional people on a HOA. It's just your neighbors who only qualification is they bought into the place. Seriously, if someone came up to me throwing all these law references I'd tell to go tell it to the lawyer cause I am just doing my job the best I can by the rules I have at hand.

A HOA has the ability to resolve it's issues INTERNALLY. It is set up that way without ever needing to go to a lawyer other than lien or foreclosure filings basically. So if you have an issue with your HOA simply state what your issue is. It is YOUR HOA.

Sorry for my rant...It's just when I see people who get all caught up in looking up all these laws and stuff without looking at their own documents or being involved in a solution, I get a bit frustrated. State your point on the solution you want to see and work on getting to that. All this other legal crap is left to the professionals if you so choose to hire one...There done...Whew...




Melissa,

The laws of the state are not mundane things. These are important issues that all HOA's should be mindful of. One can pay multiple lawyers and get multiple different answers to their questions. There is nothing wrong with looking up laws and applying them to your particular situation. Nothing wrong with being informed. It's not the lawyers who decide how to interpret the laws, it's the judges intereptation.

I do agree that issues can be resolved internally but it takes the BOD to listen objectively and make informed decisions. Some of us don't live in associations where the BOD is objecitve and acts in the best interests of the members. Some members just do not have the means to seek legal advice. My own experience with lawyers is that I paid them a lot of money and got responses to my questions like "I think" or "I don't know". Then you get a bill in the mail and you wonder what was that for?

GwenG
(Florida)

Posts:555


02/27/2013 7:46 PM  
Melissa, I am not sure why your response is so emotional, but I'm glad you got it off your chest!

Forums serve many needs and that is why I come to a specialty forum. This forum is a very important communication exchange of information about problems that are not new. Many times, I want to learn more about a subject, put my keywords in the Search box and get lost in the rich environment of different points of view.

To me, that is the point of coming to such an exchange ie to "vet" your thoughts, propositions and concerns with other involved and knowledgeable members who may have already been down the same road. This helps to focus one's attention on the critical, fundamental issues and avoids wasting time and money on blind alleys (and attorneys). I work too hard for my money to automatically go running to an attorney every time I am confronted with a difficult situation.

I believe that educating oneself and identifying resources is the first, best thing to do in managing life. In an HOA, the education process begins, of course, with reading and comprehending the governing documents, as well as your state's statutes. You wrongly assume, without evidence, that this has not been done.

We do depart views with your question "Why look at mundane things like MRTA?" One week ago, no one in my HOA had any idea about MRTA. Now, there is growing realization that this law could change our world! Even though the content is "dry", many are slogging through it because it has a profound impact on the future of our HOA. These individuals are not dues-paying slackers, rule breakers or HOA-hating discontents. They are reasonable folks who have involved themselves in the governance of our community and are informed about the weaknesses inherent in the structure of HOA's and its volunteer practitioners, as well as the lack of access to a reasonable enforcement vehicle.

My hoped-for outcome is that the truth is brought to light so that owners can make informed decisions for their future interests, rather than knee-jerk reactions to fear of the unknown or dis/mis-information offered by leadership. That may or may not result in a collective desire to revitalize the old, and increasingly troubling, HOA presence in our community.
GwenG
(Florida)

Posts:555


02/27/2013 7:47 PM  
Posted By JohnC46 on 02/27/2013 2:47 PM
I am of the opinion that Gwen and Kevin believe it is a battle of them (the association) against us.

They can say whatever they want about crossing T's and dotting I's but the bottom line is they do not like the way their association is doing it and they want to challenge them as often as they can.

Personally I do not think either one will ever be happy in any association.

I could be wrong.




Wow that is one truckload of assumptions!
MelissaP1
(Alabama)

Posts:6904


02/28/2013 1:07 AM  
Oh okay one of those "The Truth is out there" kind of things...I kind of find that doesn't work. What works is actually being involved in your HOA and running for office or attending a meeting. I tend to take REALITY over the "Truth"...
Confuscious say truth in hand does not equal reality in life...(I made that up lol)

If you understood your HOA and what it is for/does then you already know that this is happening already. You have what your looking for if you stop looking everywhere else for the "answers".

Former HOA President
GwenG
(Florida)

Posts:555


02/28/2013 3:26 AM  
Posted By MelissaP1 on 02/28/2013 1:07 AM
Oh okay one of those "The Truth is out there" kind of things...I kind of find that doesn't work. What works is actually being involved in your HOA and running for office or attending a meeting. I tend to take REALITY over the "Truth"...
Confuscious say truth in hand does not equal reality in life...(I made that up lol)

If you understood your HOA and what it is for/does then you already know that this is happening already. You have what your looking for if you stop looking everywhere else for the "answers".




I like the sense of humor and energy that comes through in your posts.

Here's one I like:

Reality is merely an illusion, albeit a very persistent one.
Albert Einstein

TimB4
(Virginia)

Posts:15081


02/28/2013 4:09 AM  
I always liked this one:

I reject your reality and substitute my own.
made popular by Adam Savage on Mythbusters
GwenG
(Florida)

Posts:555


02/28/2013 4:46 AM  
Posted By TimB4 on 02/28/2013 4:09 AM
I always liked this one:

I reject your reality and substitute my own.
made popular by Adam Savage on Mythbusters




Tim that is a good one; can I adopt it? I think Dr Phil has a variation on that one, as well.
KevinK7
(Florida)

Posts:1328


02/28/2013 5:32 AM  
Posted By JohnC46 on 02/27/2013 2:47 PM
I am of the opinion that Gwen and Kevin believe it is a battle of them (the association) against us.

They can say whatever they want about crossing T's and dotting I's but the bottom line is they do not like the way their association is doing it and they want to challenge them as often as they can.

Personally I do not think either one will ever be happy in any association.

I could be wrong.



I would classify your statement as wrong. I was actually very happy in my neighborhood. We were voluntary dues paying members for over a decade and had attended some meetings as well. My family bought our houses in neighborhoods specifically because they had voluntary associations. When that voluntary association sent a letter saying that we had to pay or face legal action a flag was raised. We tried contacting the HOA but we couldn't get any information. When we asked what changes were made we were told by the Board to look it up on our own. Their lawyer had also sent us a letter saying that it was fair and that if we did not pay they would take us to court, win, and make us pay their bills, and all this just from asking how they were able to do something!

It was from research and asking questions that things started to look off. When we tried to involve ourselves in the community some more we were shot down. We were refused entrance to the meetings and then the HOA held closed meetings altogether in real estate agents' offices and hotel conference rooms.

Posted By MelissaP1 on 02/28/2013 1:07 AM
Oh okay one of those "The Truth is out there" kind of things...I kind of find that doesn't work. What works is actually being involved in your HOA and running for office or attending a meeting. I tend to take REALITY over the "Truth"...
Confuscious say truth in hand does not equal reality in life...(I made that up lol)

If you understood your HOA and what it is for/does then you already know that this is happening already. You have what your looking for if you stop looking everywhere else for the "answers".




That would be easy IF the HOA allowed for participation. In my HOA, as I mentioned above, we were not allowed entrance to the meetings. The HOA refused to communicate with us and told us if we wanted ANY information from them we needed an attorney (It helps to understand that they claimed they were not governed by Statute 720 so they believed they only had to abide by corporate statutes).

Elections? The board members were in control of proxies that granted the board discretion over the votes. When someone new became a director on the board they were there in name only. My neighbor was gung-ho about joining the HOA and Board. The original board clique never informed him of what was going on in the neighborhood, didn't tell him about board or membership meetings, and never changed their corporate filings to put him on. They also refused to tell him about the giant lawsuit that they were involved in.

So resolving conflicts internally is ideal but when one party doesn't follow those mundane statutes and dot their "i"s and cross their "t"s, then that is not possible.
MelissaP1
(Alabama)

Posts:6904


02/28/2013 6:15 AM  
That is one of my favorite quotes too Tim from Mythbusters. I like the Einstein one as well...

Kevin and others let me address this..."I wanted to join my HOA but they wouldn't let me or my neighbor". Seriously? Let us think about that statement...Oh let's not and state the truth/reality: YOU ARE IN THE HOA ALREADY BY OWNING A HOME! There I finally said it. Kapeesh? Stop saying your HOA won't let you do this or that. Your stopping yourself and wanting to play victim/aggressor. Even with all this talk about "Corporate laws being violated". Seriously do you think people who's ONLY qualification to be on the Board or even a HOA member is just to be a home/property owner cares or knows what they are doing?

A HOA is run by you and your neighbors. They are handed a bunch of documents and told here run the place by them. How to run your HOA is simply in those documents. Looking else where and demanding your state creates or has certain HOA laws really does more damage than good in the long run. As an example in Florida who have some of the craziest laws on the books that really hamper and confuse most people in HOA's. It just adds onto the already existing restrictions that if done correctly would have been left up to each individual HOA.

So if your HOA is not letting you into meetings...Find out if those were executive type meetings. They could exclude members if it's a private meeting. Just make sure to attend the public ones. If you make it on the board, there's not alot of things done there to recognize you are on the board. I never had any of my board members sign anything saying they were board members. We just put it in our meeting notes those were the elected people and posted it on the bulletin board. There's no official signage for board members. If you were an officer, the only place that mattered was at the bank. That meant you could sign a signature card at the bank so to sign checks. We had a 2 signature system which meant two officers and the accounant had to sign checks to cash them. I am sure that just because your a board member your NOT going to get your name added to who can cash checks for the HOA. That is ONLY for the officers and that is still limited.

Again, I bring this up because it seems your looking for stuff that is already in existence but not in the way your mind thinks it ought to be. Did you think there was some official board member registry somewhere? Nope. Did you think every meeting is open? Nope. Not in every state it isn't. Do you think the board is hiding anything? Probably but did your dues raise because of it? No. The lawsuit issue the lawyer probably advised not to speak of it as if they did you all could be brought in as witnesses. Would you have liked that instead or left it up to the board to deal with it instead?

Sorry about my rant but often times you have to look at the trees despite the forrest or the Forrest Gumps...Educating yourself about HOA's don't need some outside source. It needs you to read what already exists.

Former HOA President
KevinK7
(Florida)

Posts:1328


02/28/2013 7:19 AM  
Posted By MelissaP1 on 02/28/2013 6:15 AM

A HOA is run by you and your neighbors. They are handed a bunch of documents and told here run the place by them. How to run your HOA is simply in those documents. Looking else where and demanding your state creates or has certain HOA laws really does more damage than good in the long run. As an example in Florida who have some of the craziest laws on the books that really hamper and confuse most people in HOA's. It just adds onto the already existing restrictions that if done correctly would have been left up to each individual HOA.

So if your HOA is not letting you into meetings...Find out if those were executive type meetings. They could exclude members if it's a private meeting. Just make sure to attend the public ones. If you make it on the board, there's not alot of things done there to recognize you are on the board. I never had any of my board members sign anything saying they were board members. We just put it in our meeting notes those were the elected people and posted it on the bulletin board. There's no official signage for board members. If you were an officer, the only place that mattered was at the bank. That meant you could sign a signature card at the bank so to sign checks. We had a 2 signature system which meant two officers and the accounant had to sign checks to cash them. I am sure that just because your a board member your NOT going to get your name added to who can cash checks for the HOA. That is ONLY for the officers and that is still limited.

Again, I bring this up because it seems your looking for stuff that is already in existence but not in the way your mind thinks it ought to be. Did you think there was some official board member registry somewhere? Nope. Did you think every meeting is open? Nope. Not in every state it isn't. Do you think the board is hiding anything? Probably but did your dues raise because of it? No. The lawsuit issue the lawyer probably advised not to speak of it as if they did you all could be brought in as witnesses. Would you have liked that instead or left it up to the board to deal with it instead?

Sorry about my rant but often times you have to look at the trees despite the forrest or the Forrest Gumps...Educating yourself about HOA's don't need some outside source. It needs you to read what already exists.




Your comments assume as if I did not try certain things.

The meetings I reference. They were not special executive meetings. They were not private meetings. They did not have the lawyer present. They were general membership meetings. According to Florida Statute 720, the HOA cannot deny entrance to homeowners (regardless of membership) but that didn't stop the HOA. The denied entrance to individuals in "mandated" sections from entering. The issue was that they were forcing non-members to pay money but then would not allow those non-members a entrance to their meetings or a vote. It was the HOA that created an adversarial relationship - the HOA membership could create assessments for the non-membership and the non-membership could do nothing about it. Oh, and did I forget to mention that this wasn't even my HOA? My property existed in a subdivision that had different covenants and restriction then this HOA but they insisted they were the master association because the covenants and restrictions were similar to theirs and had a similar name.

"Did you think there was some official board member registry somewhere?"

Yes. The Department of State Division of Corporations requires annual reports for the corporation, which in turn requires Directors and officers to be listed, as well as any changes. If changes were made after the filing, an amended annual report must be filed.

"Did you think every meeting is open?"

Again, according to Florida law, it was. The organization claiming publicly to be an HOA privately claimed it was not. It then held general membership meetings closed to all homeowners and permitted certain homeowners entrance, notifying them privately.

"Not in every state it isn't."

In Florida it is.

"Do you think the board is hiding anything?"

Yes. In court documents, the board made various statements that were contradictory to their public claims. They claimed to have owned common properties thus requiring funds but documents showed they did not. They claimed they held secret meetings because of disturbances and that the county started charging for use of the library conference room despite the fact that the room had always been free and was not owned by the county.

"Probably but did your dues raise because of it?"

That was part of the issue. The Board claimed that everyone was upset over the small amount of $100 but the fact of the matter was that the amended covenants and restrictions they were trying to enforce did not limit assessments. It actually granted the board authority to charge whatever amount whenever they wanted without any oversight from the membership (or non-member homes they wished to assess).

"The lawsuit issue the lawyer probably advised not to speak of it as if they did you all could be brought in as witnesses."

I understand if this were general meetings but what about not even making such information privy to other board members? Not even notifying other board members of board meetings?

"Educating yourself about HOA's don't need some outside source. It needs you to read what already exists."

Do you not think that I have? I had spent years researching C&Rs, by-laws, statutes, case law, history of the region, etc. I am fully aware of what already exists. The problem is not all HOAs are perfect and not all problems can be solved internally. In my situation an outside HOA tried to exert influence over my neighborhood. When tried to resolve internally the HOA essentially told me to pay up or lawyer up. Every communication we had with the HOA was civil and to the point. What we got in return was far from that.

You cannot assume that every HOA acts in the best interests while every homeowner knows nothing. How could I run for the board if the HOA insisted I lacked authority even when the board was composed of non-homeowners and non-residents of the neighborhood? How could I resolve a dispute with a board that refused to communicate with me?
GwenG
(Florida)

Posts:555


04/05/2013 7:54 AM  
Revitalizing this topic...I have received an attorney's opinion on my title, following a thorough MRTA title examination. It is his opinion that my parcel is no longer encumbered by the CC&R's recorded in the Declaration.

Additionally, attorney has advised that the notice of preservation that BoD voted to record, referencing a 1986 amendment to Declaration, is insufficient to reimpose encumbrances on expired lots. Indeed, by referencing ALL platted lots on the attached exhibit, the document would have placed a cloud on the title of all parcels already free of encumbrance. For some unknown reason, this notice of preservation has never been recorded in the 6 weeks since it was affirmed. No explanation given. I would like to think that someone recognized the folly of falsely encumbering "free" parcels with a notice and withheld recordation.

A quick view of a random street within the community revealed that all parcels except two were probably free of encumbrances by Declaration. Naturally, this would have to be confirmed by a title search and attorney opinion prior to a legal challenge to the HOA.

There is a growing grass root interest in this issue within the community while leadership has been silent. Looking far down the road, many see some need and purpose for the HOA but would not vote to revitalize it in its current form.

I wonder if there are any HOA's "out there" who have any experience with reinventing their HOA's following expiration of covenants. Not "revitalizing" per se--but reinventing while revitalizing. MRTA restricts the revitalized Covenants to being no more restrictive than the original which would seem to allow plenty of room for a much small HOA footprint to be conceptualized, if desired by majority.

KevinK7
(Florida)

Posts:1328


04/05/2013 9:00 AM  
Posted By GwenG on 04/05/2013 7:54 AM

I wonder if there are any HOA's "out there" who have any experience with reinventing their HOA's following expiration of covenants. Not "revitalizing" per se--but reinventing while revitalizing. MRTA restricts the revitalized Covenants to being no more restrictive than the original which would seem to allow plenty of room for a much small HOA footprint to be conceptualized, if desired by majority.



I would think that even if an HOA were to reinvent themselves with a whole new set of updated covenants you would eventually find yourself in the same situation. Some would want stricter covenants and some would not. Those that want change would probably be more involved in the neighborhood and push for some changes, and in neighborhoods where the BoD has a poor grasp of the law or procedures they would most likely fall into the same pitfalls as before.

For instance my neighborhood decided to "restate" their covenants and restrictions years ago but it was hardly a restatement. It was a complete rewrite. They then got a simple majority to "pass" the far more restrictive covenants then started enforcing a "mandatory maintenance assessment." Long story short, a judge shot down their claim to authority and the covenants expired. The BoD still claimed to be in existence and was working on fighting the judge's ruling. The issued statements pretty much ignoring the ruling but that they would put their plans on hold. If a newer set of documents were to be considered that were similar to the original ones I still wouldn't approve them for fear that history would repeat itself and that not signing on would save me more money and protect my investment.
GwenG
(Florida)

Posts:555


04/05/2013 2:10 PM  
Thanks for comments, Kevin.

This reminds me of the quote about the futility of making a geographic recovery as a cure for life's slings and arrows: "Wherever I go...there I am".
GwenG
(Florida)

Posts:555


04/25/2013 4:55 PM  
A milestone was reached today. The first ever owner-organized paid-for meeting with an attorney guest speaker to talk about MRTA and our mostly-expired community. It was a sobering meeting but, it accomplished an important goal-to give people information from someone "without a dog in the fight" to reframe mis- and dis- or NO information from our leaders.

The community has been abuzz and a shocking street exchange between a BOD and Owner was relayed:

BOD: "You have to think about the good of the community".
Owner: "Yes, we are doing that and would favor attempting a revitalization".
BOD: "Our attorney said we were NOT expired and we will spend the entire 1.8 million in our Reserves to prove it!
Owner: "And THAT is thinking about the good of the community?"

Like a ripple in a pond, Pandora's box has been opened and the issue will take on a life of its own. Individuals now have the ability to make a more informed decision about how they wish to live with a governing group that would rather drive us into receivorship and enrich the lawyers rather than getting a second, independent legal opinion, engaging the owners in a conversation or just starting the inevitable process of revitalization.

This is a very sad day for people who now know the truth about the status of our CC&R's.
GwenG
(Florida)

Posts:555


05/10/2013 6:28 PM  
In typical fashion of reacting too little-too late, our Board finally scheduled a guest attorney to speak about MRTA at a Board meeting three months after giving notice of filing a Notice of Preservation.

This soon followed on the heels of an owner-organized meeting and paid consultation with their own attorney, which shocked and enraged the Board. Further to that meeting, a website was immediately set up to post all information known about MRTA-related community concerns. Additionally, a forum was set up for questions and comments.

The meeting was blandly informational and did not serve 80% of the people who had no idea what all the fuss was about. Owners villified the owners seeking their own attorney, accusing them of causing problems. General consensus is "I don't know what this is all about and I want things to get back to business as usual. Those people who hired an attorney are troublemakers and should move out".

Board refuses to talk to owners who are knowledgable about MRTA and consulted with their own attorney. HOA attorney is saying Covenants were "replaced" and not expired. Owner's attorney says "expired".

Neighbors against neighbors and it is getting ugly.

Has anyone been through a deeply divisive community issue, especially one that is not understandable by most?

JohnC46
(South Carolina)

Posts:7113


05/11/2013 7:53 AM  
Gwen

What are the dissenters (those that disagree with the elected BOD) looking to achieve? What is their end game?

Thanks
KevinK7
(Florida)

Posts:1328


05/11/2013 2:07 PM  
Thanks for the update. I find this kind of stuff very interesting (especially Florida issues)I for one have found that MRTA is greatly misunderstood.

Here is a typical conversation I would have with my neighbors.

THEM: How come you don't pay assessments or dues?

ME: I am not a member.

THEM: But you have to pay.

ME: The covenants expired.

THEM: What does that have to do with the HOA?

I have also found when speaking to several attorneys that they seem to be fuzzy on the details. A few of the consults started with "You must have read your covenants wrong." Only a couple were interested in cross referencing statutes.. My HOA filed a notice of preservation late. The law is explicit. I notified them of the expiration. They continue to insist the covenants are in full effect. My other HOA never filed them and oddly used trailer park and condo cases in their defense to a judge.

I think the problem is real estate ownership is pretty complicated once you take into consideration covenants, restrictions, bylaws, municipal codes, and state statutes. I think for most people that is too much and they just want to stick their head in the sand. Ignorance is bliss.

I think my goal was probably the same as Gwen's - to make the HOA accountable to the homeowners and to bring the neighborhood into compliance with the law. If that meant scrapping the covenants then so be it. There is a process for revitalization but I doubt the HOA will commence with that considering they still don't get MRTA.
JohnC46
(South Carolina)

Posts:7113


05/11/2013 3:27 PM  
Kevin

I have to question your end game. Are you really being altruistic and want to bring the HOA inline with the law or are you looking to kill the HOA as in you want to be on your own, with no HOA?



KevinK7
(Florida)

Posts:1328


05/11/2013 7:48 PM  
Both.

My biggest contention was that the covenants and restrictions were fine the way they were and that they were violating the process dictated in the covenants and restrictions on how to amend our documents. They were also violating their by-laws, articles of incorporation, and Florida Statute 720 (at that time it was my belief that they fell under that statute). We were voluntary members to the HOA for over a decade. When we were finally let into meetings the HOA villainized those who opposed them, including my family. They made it clear that they would stop at nothing to make everyone pay. At the last meeting they held they were defiant of the judges ruling and insisted their attorney was working on a way to enforce their rewritten covenants and restrictions and force non-members to pay.

It was then that I realized that it was best to "kill the HOA." There was no redeeming them.

I would consider revitalization in the future but would be skeptical.
SharonH9


Posts:0


05/12/2013 4:37 AM  
Posted By KevinK7 on 05/11/2013 7:48 PM
Both.

My biggest contention was that the covenants and restrictions were fine the way they were and that they were violating the process dictated in the covenants and restrictions on how to amend our documents. They were also violating their by-laws, articles of incorporation, and Florida Statute 720 (at that time it was my belief that they fell under that statute). We were voluntary members to the HOA for over a decade. When we were finally let into meetings the HOA villainized those who opposed them, including my family. They made it clear that they would stop at nothing to make everyone pay. At the last meeting they held they were defiant of the judges ruling and insisted their attorney was working on a way to enforce their rewritten covenants and restrictions and force non-members to pay.

It was then that I realized that it was best to "kill the HOA." There was no redeeming them.

I would consider revitalization in the future but would be skeptical.




Kevin,

The subdivision I live in is in a similar predicament. Iowa's laws are similar to MRTA. The CC&Rs expired and were not renewed in the 21 year time period required by Iowa law. The board refuses to recognize that membership in the Association is voluntary. Two years ago the President erected a sign that states that "membership is required before building can begin".

I contend that membership is not required and nonmembers and members not in good should be charged the same as members. The current fee structure is $75 per year membership dues and $250 for sewer fees. If property owners do not pay the $75 per year membership dues, the bylaws state that they must pay 3 times the amount for sewer fees. Members in good standing have voting rights, may serve as board and committee members, use of the ponds, and are charged sewer fees at the member rate. The dues cover maintenance to the ponds. There is a dock and a picnic shelter and a private road to access the pond.

Any thoughts on whether the association can actually charge 3 times the amount for sewer fees if a property owner does not pay the voluntary membership dues.

Thanks.
TimB4
(Virginia)

Posts:15081


05/12/2013 5:16 AM  
Posted By SharonH9 on 05/12/2013 4:37 AM

Any thoughts on whether the association can actually charge 3 times the amount for sewer fees if a property owner does not pay the voluntary membership dues.




Sharon,

Your situation is unique. The Association formed under the CC&Rs and incorporated under your State corporate laws provides sewage services. Even though the CC&Rs would have removed the Association, the Corporation known as HOA,Inc. must still provide sewage service (and does).

Since the restraint from the CC&Rs were eliminated, the Corporation would be free to establish their own fee structure providing it is in compliance with applicable State and local laws covering corporations and waste water management. I can certainly see a two tier structure being formed (one for members and one for non-members).

Any limitations in the difference between these two tiers would be subject to State/Local laws, Opinion of the Board and the actions of the members of the corporation who elected that board.




KevinK7
(Florida)

Posts:1328


05/12/2013 5:24 AM  
Your situation is indeed unique. Having an essential common element - sewage - complicates matters. The only thing I wonder is if they would be legally allowed to charge such a rate. I would investigate if there are any type of utility regulations but if not I imagine they would be free to try and charge that amount and if you disagreed you could sue. As for building, I don't see how they can prevent you from building if not a member. If already connected to the sewer then I could see the conflict.
GwenG
(Florida)

Posts:555


05/12/2013 5:40 AM  
What are the dissenters (those that disagree with the elected BOD) looking to achieve? What is their end game?

@JohnC46: What KevinK7 said. I could not have said it better. The details are different but the goal is the same.

Owners who *"dissent" are almost all in favor of revitalization and realize that you cannot operate a complex resort-type property without HOA. Almost all would voluntarily pay "assessments" if it was a voluntary HOA. (However, I realize that is problematic when a property has high fixed expenses.) Many owners can never be re-encumbered as a homestead property and would still voluntarily pay "assessments".

*By "dissent" I mean.. "want the law followed and the BOD held accountable when it is not"

A bit of background: there is a general distaste for the leaders who have and continue to ignore lawful due process. And please don't tell me there are ways to remove them! I know. But, we are an aged community of Canadian snowbirds who are here only 3-4 month/yr on vacation and removal is just not ever gonna happen! Additionally, you have the "change-averse" mindset that is typical in this elderly population. And then there is the group-think villification of the "faction" that wants to cause trouble and on and on...

No HOA killers here--yet! But if the BOD continues to dig their heels in, a revitalization becomes more remote as people witness dysfunction and decide that the HOA is the problem. This is a complex situation and people are reacting emotionally and attacking the messengers, so to speak. If things were rationale, they might realize that there is much common ground.

This is not just a political and governance issue, it is a social issue that is tearing the community apart. I am surprised that the only contributor here that seems to know what this community may be experiencing is KevinK7? (Thanks for sharing KevinK7)
KevinK7
(Florida)

Posts:1328


05/12/2013 6:05 AM  
The problem with situations like this is that when prolonged it becomes toxic. Our neighborhood has around 900 homes. Nobody was aware of MRTA or the different sections. We always had membership rates of around 50 - 60 percent. The annual membership was around $100. Once the board started making changes membership dropped to half that. As the case was prolonged the board asserted they were right and increased payments back up to around 450 (the sections they rewrote they threatened legal action for non payment, the volunteer sections stopped paying). Once word got out about the judgement membership plummeted to a quarter of what it was and now the HOA closed up shop.

Had they heeded the warnings in the first place everything would have been good.

I personally think the two main causes came from the board's ambitions and their sleazeball attorney. The attorney made a name for their firm as converting neighborhoods dubiously and raking in cash for violations. Not much money in the volunteer association game. Had the board responded civilly in the first place I would have kept paying my dues and continued membership. Not only did they screw up by picking fights, they ignored calls to properly preserve the original covenants and amend them in accordance with the law. Not only did they lose membership, they lost the C&Rs and now have extra hurdles should they decide to revitalize.

The moral of the story is if they followed the law and proper procedures they would have been able to accomplish their goals and they would have had more people on board , including some of their biggest detractors.
SharonH9


Posts:0


05/12/2013 6:12 AM  
Posted By KevinK7 on 05/12/2013 5:24 AM
Your situation is indeed unique. Having an essential common element - sewage - complicates matters. The only thing I wonder is if they would be legally allowed to charge such a rate. I would investigate if there are any type of utility regulations but if not I imagine they would be free to try and charge that amount and if you disagreed you could sue. As for building, I don't see how they can prevent you from building if not a member. If already connected to the sewer then I could see the conflict.




Unfortunately the Iowa Utilities Board does not hold any influence over private sewer systems. Our attorney said the only way to challenge the fees is in court and ask the court to rule what is a reasonable fee for those services. I have asked that discussion of the fee structure be added to this year's annual meeting agenda which will be at the end of this month or next but I have had no communication from any board member. I have tried contacting them by e-mail and U.S. mail but so far they have not responded. My requests for board meeting minutes and a member list are ignored. I'm getting pretty frustrated. The members only have an opportunity to discuss issues once a year at the annual meeting. Members are not allowed to attend board meetings. I have tried and tried to open up communication with them but they just refuse to talk to me. I have also nominated myself to run for the board.

Not sure what to do next. Any suggestions?



KevinK7
(Florida)

Posts:1328


05/12/2013 10:56 AM  
Posted By SharonH9 on 05/12/2013 6:12 AM
Posted By KevinK7 on 05/12/2013 5:24 AM
Your situation is indeed unique. Having an essential common element - sewage - complicates matters. The only thing I wonder is if they would be legally allowed to charge such a rate. I would investigate if there are any type of utility regulations but if not I imagine they would be free to try and charge that amount and if you disagreed you could sue. As for building, I don't see how they can prevent you from building if not a member. If already connected to the sewer then I could see the conflict.




Unfortunately the Iowa Utilities Board does not hold any influence over private sewer systems. Our attorney said the only way to challenge the fees is in court and ask the court to rule what is a reasonable fee for those services. I have asked that discussion of the fee structure be added to this year's annual meeting agenda which will be at the end of this month or next but I have had no communication from any board member. I have tried contacting them by e-mail and U.S. mail but so far they have not responded. My requests for board meeting minutes and a member list are ignored. I'm getting pretty frustrated. The members only have an opportunity to discuss issues once a year at the annual meeting. Members are not allowed to attend board meetings. I have tried and tried to open up communication with them but they just refuse to talk to me. I have also nominated myself to run for the board.

Not sure what to do next. Any suggestions?






Contact your local representatives? Maybe they can help facilitate a solution.
GwenG
(Florida)

Posts:555


09/15/2013 6:41 AM  
This is an informational update on the community MRTA issue.

In May 2013, Owner sent a "demand letter" to BOD to remove the cloud on title imposed by the illegally-recorded Notice of Preservation which named owner's lot. According to a title search and attorney opinion, owner's lot was free of HOA encumbrance until HOA filed the Notice of Preservation. Additionally, Owner demanded a partition of assessments appropriate to a lot not governed by HOA ie remove any administrative HOA costs from fee etc. Owner directed all future correspondence to be emailed to her attorney (thank you KevinK7 for your valuable referral!).

Note on document background: On the Notice of Preservation, HOA referred to an old Amendment which it claims replaced the original Covenants. At the time (1985), the HOA was self-managed. The Declaration contained no amendatory provision for anything except bylaws and rules. It only contained a "release clause" of covenants on lots on a plat-by plat basis by vote of the owners of lots in the plat. A member ballot purportedly released ALL lots on ALL plats and replaced the Covenants with an amended covenant document by a 75% vote. (One of the amendments was to add an amendatory provision for the covenants.) The amended document was recorded and is the one referenced in the Notice of Preservation. Notwithstanding there being no authority to amend covenants in the first place, no ballots were placed in the public record and no ballot records are available--only the usual notarized BOD certificate. HOA maintains that it complied with FS712 in filing the Notice and Owner complains that the Notice was in error and creates a cloud on her title.

Immediately thereafter, Owner set up a website, with the full knowledge of her attorney. The website is intended to be a repository of all facts related to the MRTA community issue. Content is tightly controlled and the goals are to post background info to educate interested owners and to follow the progression to keep owners informed and avoid rumors.

Approximately 45 days after emailing the Demand Letter, a paper letter was mailed directly to the Owner from the HOA attorney. Owner's attorney received NO reply and was not acknowledged in the correspondence. Owner subsequently scanned and emailed the letter to her attorney.

Attorney requested a FL statute-protected attorney-only meeting with HOA attorney to discuss issue and options to go forward. Following the August "attorney-only" meeting, owner's attorney described meeting in detail to owner; owner summarized it and posted on website.

Board read owner's summary at the next BOD meeting and commented that it was an unproductive meeting. (For reasons unknown to the owner, two of the directors were permitted to sit-in to the meeting, which entailed travel expenditures charged to the HOA.) BOD placed no record of their own into the Official Records.

In Sept, BOD noticed a secret meeting to members which they decided to call a "Privileged Special Meeting" invoking FS720 to discuss HOA "legal problems". It was announced at the following regular Board meeting that a second legal opinion would be sought. Eleven days after the secret meeting, no minutes or draft minutes have been posted.

At this time, Owner's attorney is preparing the Florida-mandated Pre-Suit Mediation paperwork for Slander of Title and possibly additional complaints.
KevinK7
(Florida)

Posts:1328


09/15/2013 12:20 PM  
Thanks for the update! It is interesting to see these things play out and what actions either side takes (especially the one that lacks the legal foundations for their case).
RichardB27
(Florida)

Posts:2


09/17/2013 7:30 AM  
Very interesting situation. I have a couple of questions:
Can you tell me if this is a mandatory or volunteer HOA? Are you (GwenG) the owner referred to above or what is your relationship to the owner?
GwenG
(Florida)

Posts:555


09/17/2013 8:02 AM  
Mandatory and Yes.
GwenG
(Florida)

Posts:555


10/05/2013 1:20 PM  
Update: An Offer to Participate in Mediation, required by Florida prior to filing a lawsuit, was made to the HOA. Included were the names of 5 MRTA-knowlegable, certified attorney-mediators. HOA accepted the Offer but rejected the mediators suggested in favor of a certified mediator whose website represents its practice as specialized in personal injury litigation ie slip, trip 'n fall etc.

The mediation will be scheduled within 90 days and few believe that the meeting will significantly progress the discussion and the Slander of Title complaint will likely be litigated. Indeed, many owners are assuming it will be litigated and have indicated a desire to enjoin the lawsuit(s).

One month after the Board's "Privileged, Special Meeting", there are still no minutes or draft minutes, though decisions purportedly made during the meeting were announced at the following regular board meeting.
KevinK7
(Florida)

Posts:1328


10/05/2013 4:25 PM  
I think their rejection of the MRTA attorneys for a personal injury attorney speaks volumes. Something similar happened in my neighborhood when the HOA pushed to recuse the plaintiff's attorney. Sucked when they got another knowledgeable and accomplished attorney.

Are the other residents seeking to join the association's side or yours? The problem in my neighborhood was that the HOA convinced every homeowner that they had everything under control and their attorney would represent everyone. I think it is important to get ahead of the message.
TimB4
(Virginia)

Posts:15081


10/05/2013 4:32 PM  
Gwen,

Thanks for the update. Updates don't always happen and we are left wondering and drawing our own conclusions. Your updates are appreciated.

Tim
GwenG
(Florida)

Posts:555


10/05/2013 10:06 PM  
Kevin:

HOA's choice of a personal injury attorney as a mediator is certainly a head-scratcher!

Owners want to enjoin my suit against HOA. This would be a Slander of Title suit. The improper Notice of Preservation re-encumbers hundreds of lots whose covenants were previously expired under MRTA. There is a growing awareness by owners that the HOA cannot protect them from an illegitimate governing body. This is a risk concept that is unfamiliar to most people. There are many that grasp at the Board's assurance that "all is well".

Tim:

Thanks for support. When I was doing my research on MRTA, anecdotal information was extremely difficult to find on the internet. I am hoping topic updates will be helpful to others who may find themselves in a similar situation.

Oddly, there is some problem with accessing this topic using the SEARCH function. Apparently, there are no keywords attached to my posts so anyone desiring to find Florida MRTA info will be unable to identify this Topic. I have made multiple requests to the site administrators to fix this but so far, no action except a return acknowledgement of my email.
PaulM21
(Florida)

Posts:1


10/06/2013 8:04 AM  
Gwen

Not to change the subject ,My HOA voted to preserve the declaration 45 days after it expired and recorded it 8 months later.

This occured in 2001 and I am worried about the liability the association may have because of the number of homes taken by them thru foreclosure

that may have been Illegal. So my question ,is it 30 years or thirty and a day a week or a month ?
KevinK7
(Florida)

Posts:1328


10/06/2013 10:16 AM  
Posted By PaulM21 on 10/06/2013 8:04 AM
Gwen

Not to change the subject ,My HOA voted to preserve the declaration 45 days after it expired and recorded it 8 months later.

This occured in 2001 and I am worried about the liability the association may have because of the number of homes taken by them thru foreclosure

that may have been Illegal. So my question ,is it 30 years or thirty and a day a week or a month ?



My understanding is that it is 30 years. No more. The law is rather specific. My HOA filed their notice of preservation a couple of months after the expiration. They continue to enforce the covenants but when I raised questions and got an attorney well versed in MRTA involved they left me alone. They still insisting they are in charge of everyone else but I fear this is going to become a huge liabilty issue since they are demanding rent be paid directly to them, they are demanding estoppel fees, and are threatening legal action against everyone else.

Once the covenants expire there is a mechanism for revitalization but my understanding is that in the interim action cannot be taken because the covenents don't legally exist.
KevinK7
(Florida)

Posts:1328


10/06/2013 10:19 AM  
And if you may recall my other neighborhood had expired covenants and fought for control and lost horribly.
GwenG
(Florida)

Posts:555


10/06/2013 10:23 AM  
I can't imagine a credible legal concept where the law that specifies 30 years did so with its legislative fingers crossed and later says "Gosh, we wrote 30 years but actually meant 30 years and a wee bit more in cases where the HOA was just a little late making the deadline and really didn't mean any harm..."?

The folks whose homes were taken might very well have a basis for a legal challenge to the foreclosure. The foreclosure action was executed by an illegitimate governing body that had no authority to foreclose. It might be helpful to know if there is any statute of limitations in bringing action against the HOA by those whose homes were foreclosed. My HOA also has several foreclosures that occurred on lots whose covenants had expired years earlier.

This is the kind of risk liability that many HOA members do not yet recognize--the individual liability that can come from the actions of a group of people whom they are allowing to represent them without the authority granted by the declaration.
KevinK7
(Florida)

Posts:1328


10/06/2013 11:38 AM  
I recently talked to a board member about personal liability. The board and their attorneys have been notified and made aware of the statutes. Their attorney was notified. They chose to continue to act in a particular way and claiming ignorance of the law is no excuse. A matter like this is different then a disagreement regarding the interpretation of covenants. I think not only is this matter dangerous for the association, the individual board members can face action against themselves.

Can you imagine that lawsuit? The covenants expired and you had no authority to act yet you foreclosed on some properties even after it was brought to your attention. What kind of defense would the association have? Especially when the law is really plainly stated.
GwenG
(Florida)

Posts:555


10/06/2013 12:32 PM  
My attorney has advised me that board directors can absolutely be held personally accountable for unlawful acts and so can the attorney who advised them.

It's entirely up to the individuals whose homes were illegally taken by the HOA what they want to do but I do not want to be a member of the HOA when and if that day arrives.

"They" say that ignorance of the law is no defense. It would not matter when the HOA knew of its altered covenants status although to do so AFTER being made specifically aware is particularly ugly. The HOA "uttered false instruments" and that resulted in an unlawful taking of the property through foreclosure. The HOA did or should have known what laws affect their operation. MRTA law has been around since 1963.

Directors need to review the association's D&O policy rider; it might not cover the the kinds of behavior you describe. And, directors are subjecting every owner who has agreed to permit the HOA to represent it to personal liability.

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