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Subject: FL Covenant Expiration MRTA
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Author Messages
KevinK7
(Florida)

Posts:1342


10/06/2013 3:15 PM  
That is exactly what I told the board member (they actually stepped down recently because of internal conflicts in the HOA. I would definitely not want to be a member at this time. All it will take is a single lawsuit to send this house of cards tumbling and I know of others in the neighborhood who are having legal issues with the HOA overstepping their boundaries. A lot of stress was lifted off my shoulders when I got out. I never have to worry about special assessments, arbitrary enforcement letters, or plain old harassment (well maybe not quite).
LarryB13
(Arizona)

Posts:4099


10/07/2013 8:52 AM  
Posted By GwenG on 10/06/2013 12:32 PM

"They" say that ignorance of the law is no defense.



In my state, "They" are the state statutes. One of them states explicitly that ignorance of the law is not a defense. Florida may have a similar statute.



Posted By GwenG on 10/06/2013 12:32 PM

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.



The problem is that only those persons who lost their property through an unlawful foreclosure had any standing to assert that claim and the time to do so was during the foreclosure process. When you snooze, you lose.
RichardB27
(Florida)

Posts:2


10/12/2013 7:36 AM  
I have been trying to make some sense of all this back and forth and it looks like KevinK7 and GwenG have found a common bond in stirring up the hornets nest. Back in September, I asked if GwenG was in a mandatory or volunteer HOA and the reply was, “mandatory.” KevinK7 lives in a volunteer HOA and the two are not the same but I think misery likes company so they keep feeding each others egos.
MelissaP1 seems to have summed up the situation the same as I have in asking “What is your final point?” You are the HOA. When you buy property in a mandatory HOA you become 1/xx% of that HOA. If you are not happy with the way it is being run, then change it from within, get involved. JohnC46 makes the same argument; “What are the dissenters (those that disagree with the elected BOD) looking to achieve? What is their end game?
I have a couple of other questions for GwenG. How big is your HOA and what percent are unhappy with the way it is being run? What percent of the members want to enjoin in your suit? Also, do you believe in majority rules? If so, why not put it to a vote of the members? If you have a majority, I would think the courts would look at that as a favorable position for you and the other members.
KevinK7
(Florida)

Posts:1342


10/12/2013 8:10 AM  
Posted By RichardB27 on 10/12/2013 7:36 AM
I have been trying to make some sense of all this back and forth and it looks like KevinK7 and GwenG have found a common bond in stirring up the hornets nest. Back in September, I asked if GwenG was in a mandatory or volunteer HOA and the reply was, “mandatory.” KevinK7 lives in a volunteer HOA and the two are not the same but I think misery likes company so they keep feeding each others egos.
MelissaP1 seems to have summed up the situation the same as I have in asking “What is your final point?” You are the HOA. When you buy property in a mandatory HOA you become 1/xx% of that HOA. If you are not happy with the way it is being run, then change it from within, get involved. JohnC46 makes the same argument; “What are the dissenters (those that disagree with the elected BOD) looking to achieve? What is their end game?
I have a couple of other questions for GwenG. How big is your HOA and what percent are unhappy with the way it is being run? What percent of the members want to enjoin in your suit? Also, do you believe in majority rules? If so, why not put it to a vote of the members? If you have a majority, I would think the courts would look at that as a favorable position for you and the other members.



Not quite.

The issue here is that I live in no HOA. Long story short, my community was voluntary. 12 years ago my neighborhood hired a lawyer. He amended the covenants and restrictions to sort of make the HOA mandatory (as he had done all across Central Florida, including my other neighborhood). They basically used a simple majority to lock people into lifetime memberships but contended that the association was voluntary because they could choose eternal membership by choice. Because of this they insisted they were not governed by Florida HOA laws because Statute 720 defines membership as mandatory. They then used this "loophole" to make changes to the neighborhood without a majority. They banned homeowners from meetings, threatened lawsuits unless fees and assessments were paid, and dragged their feet in the courts when they were legally challenged.

Fast forward to now. It had been determined that due to the Florida Marketable Record Title Act, the covenants and restrictions ceased to exist making the HOA nothing more then a social club. I had used HOA Talk to learn a lot about the functions of HOA living and I agree that if I were to move into a mandatory association I would have certain rules to abide by. What I didn't sign up for when I came into home ownership was for me to play by the rules and some corporate entity, lawyers, and my neighbors to tramp all over the governing documents and do whatever they wanted. Gwen came to this forum asking many similar questions that I had experienced and using my experience, like many on this forum do, I offered some advice. If a hornet's nest is stirred up do you blame the person who gets rid of it or the hornets for making a nest in the first place?

Your questions for Gwen fail to acknowledge one simple fact - the law. Because of MRTA, the covenants and restrictions ceased to exist. So when you say to take it to a vote of the membership and seek out a majority rule, the fact of the matter is that is not necessary - the HOA lacks any legal authority to act and therefor majority or no majority, in the eyes of the court the HOA is in the wrong. The real issue is not questioning the endgame of the individual.

Why should Gwen or I be faulted when there were systemic failures in the association? Why should such failures be ignored? What makes you think change in such a broken system can be enacted from the inside?

Again, from my experiences, it was impossible to change the HOA from within. The board rewrote the articles of incorporation, by-laws, and covenants. They used legal maneuvering to force people into compliance. They banned any opposition from even attending their meetings, holding secret meetings in hotel rooms equipped with a bunch of unconfirmed proxies. In the end they were wrong but that was only after a homeowner spent over 5 years and hundreds of thousands of dollars suing to protect his home. That is why I respond. Not to feed each others egos as you have stated.

KevinK7
(Florida)

Posts:1342


10/12/2013 8:20 AM  
Posted By RichardB27 on 10/12/2013 7:36 AM

MelissaP1 seems to have summed up the situation the same as I have in asking “What is your final point?”

JohnC46 makes the same argument; “What are the dissenters (those that disagree with the elected BOD) looking to achieve? What is their end game?



As I had mentioned before, the end game has essentially been to correct the path of the HOA. Since the C&Rs expired in my neighborhood, the HOA has continued to ignore that fact and has insisted homeowners continue to pay or face their lawyers. They have demanded rent payments directly from tenants and they have provided financial institutions with fraudulent information in the form of estoppel certificates, charging fees for the preparation of said documents.

The problem this all creates is that it can place my neighborhood into disarray. It can damage home sales and property values. It can also cause a lot of financial damage to the residents in the neighborhood who are unknowing of the laws. There are more concerns but without any correction whatsoever the defiance of the governing documents can have a dramatic affect.

Look at Gwen's neighborhood. With no covenants, the HOA had no legal authority to foreclose on properties but they did. Can you imagine the financial ruin such an action could cause to not only the board members (who could be held personally liable), but also those who decided to remain members to the corporation? The HOA has the potential to cause irreparable harm to the entire neighborhood.
GwenG
(Florida)

Posts:574


10/12/2013 9:48 AM  
It is good that you ask questions about a very serious matter--the absence of a legitimate governing body that continues to bind member-owners to HOA, without authority or statutory legal constraints, to contractual matters through an illusory contract perpetuated by misinformation and ignorance. (Whew!) This places members at tremendous personal financial risk. In the case of pursuing a foreclosure on a home unencumbered by the Covenants, the financial results could be disastrous. (Indeed, I have been monitoring the county public record for liens since the BOD first became aware of the status of the Covenants in late 2012.)

To answer a couple of question, there are nearly 800 members in the HOA, most of whom do not live in the community. The great majority live in Canada and in the midwest and visit the community several months during the winter. Most neither know about the situation nor do they want to know. The Board capitalizes on the situation by not talking about the matter and publicly villanizing me whenever the opportunity presents itself.

It is unknown how many people are unhappy and it is really beside the point. This is between the HOA and ME. There are hundreds of titles that were affected by the illegal Notice, but people seem happiest when they do not have to confront conflict. And, MRTA is a law that many people still know nothing about and has very complex and unfamiliar impacts to HOA's. It is unknown how many will eventually enjoin a future lawsuit at such time as that becomes an option (following failed mediation); most are still not even aware of the problem since BOD did not acknowledge it until most owners had gone back up north for the summer season.

As Kevin stated so well, how one "feels" about it is not up for a vote because there is no legitimate HOA in existence except in a very limited way on a very few properties. Opinion canvassing would be interesting but pointless. MRTA extinguished all CC&R's on the common properties in 2007 and has been steadily extinguishing restrictions since 2002. A title search on my lot and subsequent attorney opinion stated my lot has been expired since 2010. Because the HOA failed to properly preserve the covenants in accordance with MRTA, I estimate that about 80% of properties are not bound to the CC&R's (I learned how to do simple title searches during my research and sampled about 150 properties).

The HOA recorded an illegal Notice of Preservation on my property, which expired 3 years ago. By doing so, they re-encumbered my property with HOA restrictions. They have slandered my previously HOA-clear title and my intent and action is aimed primarily at having them remove it and quiet the title.

The endgame for me is entirely about managing my personal financial risk from living in my HOA. I have been trying to sell my home for over two years, without success. Sales are generally flat and internally traded in my community. Unfortunately, this HOA is inept (at best) and there is no prospect of changing board composition anytime soon. I am not an activist, an HOA-Hater or an unbalanced wrecking ball out to change the world. I am only protecting my world.

If the HOA had not recorded the Notice on my title, I would probably have let well enough alone and eventually sold the house and be done with it. My thinking was that if "anything happened", I could challenge a levy on the basis of MRTA at that time. However, I cannot ignore the intentional assault on my good and free title. I have a right to defend it against anyone who would damage it and I only have two years to make a legal complaint.

I came to the HOAtalk forum years before all this happened to educate myself about how HOA's operate. Prior to buying in an HOA, I had bought several properties in condos and served on one condo board. I thought I knew "enough" but I was wrong.

This is a great resource for hands-on experiences of actual HOA members. When this happened, I thoroughly researched the internet seeking factual and anecdotal information. When I posted here, I was lucky that Kevin responded. I do not know Kevin except through this forum. He has been helpful in referring me to the attorney who handled his legal problem with his HOA. We share similar experiences within a similar environment and similar legal problem and I am grateful to him and HOATalk forum for support.

KevinK7
(Florida)

Posts:1342


10/12/2013 12:04 PM  
Posted By GwenG on 10/12/2013 9:48 AM


The HOA recorded an illegal Notice of Preservation on my property, which expired 3 years ago. By doing so, they re-encumbered my property with HOA restrictions. They have slandered my previously HOA-clear title and my intent and action is aimed primarily at having them remove it and quiet the title.

The endgame for me is entirely about managing my personal financial risk from living in my HOA. I have been trying to sell my home for over two years, without success. Sales are generally flat and internally traded in my community. Unfortunately, this HOA is inept (at best) and there is no prospect of changing board composition anytime soon. I am not an activist, an HOA-Hater or an unbalanced wrecking ball out to change the world. I am only protecting my world.



This as part of my primary motivation as well. I live on a modest income. I support my wife and brand new baby. I own my property free and clear but the new board had been pushing for changes. They are a very ambitious bunch and had actually done a lot of good for the association (not much for the community). Just before the covenants expired they were seeking to establish stricter covenants and restrictions (membership had time and time again shot down any past pushes). They were also seeking to develop property owned by the association into things like playgrounds, etc. They also wanted to undertake a vast renovation of the clubhouse. These are all things I supported (apart from stricter covenants).

The issue I had was that years of mismanagement caused the association to deteriorate and to undertake all these projects would require huge amounts of capital. Instead of prioritizing and making gradual repairs and replacements the HOA had decided to do everything all at once. To help fund things they also pushed dues increases, floated special assessments, and ramped up enforcement, fines, and fees. I could not afford this uncertainty on top of the monthly dues they were requesting and I had my family to look after. I did not want to risk my home because of someone elses incompetence or ignorance.

GwenG
(Florida)

Posts:574


11/13/2013 2:13 PM  
This is an update on the progress of the Florida covenant expiration issue in my community.

Mediation was conducted and declared an impasse, therefore allowing the issue to progress to a lawsuit.

The issues to be litigated: Slander of Title, Quiet title, Declaratory Judgement and Filing False Claim under MRTA:

712.08 Filing false claim.—No person shall use the privilege of filing notices hereunder for the purpose of asserting false or fictitious claims to land; and in any action relating thereto if the court shall find that any person has filed a false or fictitious claim, the court may award to the prevailing party all costs incurred by her or him in such action, including a reasonable attorney’s fee, and in addition thereto may award to the prevailing party all damages that she or he may have sustained as a result of the filing of such notice of claim.
KevinK7
(Florida)

Posts:1342


11/13/2013 10:57 PM  
Thanks for the update.

What was the argument used by the HOA during mediation? I find the law to be very clear and am curious as to what kind of uncompromising position they took.

GwenG
(Florida)

Posts:574


11/14/2013 5:42 AM  
There is strict confidentiality behavior imposed by the Mediator which are agreed to by all participants. That is for the protection of both parties should the issue be litigated later. It hopefully lets all parties speak freely to resolve the issue during the mediation without fear of anything said coming back to bite you during the trial.

So, while I am unable to describe anything discussed in any detail, what I can say is that there was "nothing new" approached and that the 9am meeting barely made it to 10:15am--and that includes the opening statements by each side. I think this information basically answers your question-statement.

I will comment that it was the first time I actually looked at the board directors "close-up"--though only one director made eye contact (a friend of mine). No one from the Board has ever bothered to speak to me at any point in the dispute except to publicly make snarky comments about me at board meetings. Despite the slight discomfort of sitting across the table from the directors, it was a surprisingly non-traumatic experience and the Mediation venue was welcoming and efficient.
ChrisP12
(Florida)

Posts:13


03/20/2014 10:25 AM  
I am involved in litigation with a voluntary association and in the process of amending my complaint. My question deals with F.S. Ch. 712.08, Filing False Claim under Florida's MRTA. Is Filing a False Claim a cause of action in a lawsuit or is the sole purpose of F.S. Ch. 712.08 to provide a Statutory Basis for recovery of Atty. Fees & Costs "in any action relating thereto". Note that in Florida, Atty. Fees and Costs are recoverable only when allowed by Contract or by Statute. In my case, the false filing relates to counts of Slander of Title and a Dec. Action declaring that the association had no enforcement authority and therefore did not meet the statutory requirement of an association with the privilege to file a SMTA to extend the CCR's.

On a side note, CCR's DO NOT expire under MRTA only if 1). the property title specifically refers to the book and page where the CCR's are recorded or 2). if the original plat specifically shows the book and page where the CCR's are recorded.

Also note the CCR's expire under MRTA 30 years after the "Root of Title" of the affected (encumbered) property, NOT 30 years after they were originally recorded in the public records. The "Root of Title" is the date the Developer recorded the title specific to a particular lot within a development. Prior to that date, there was no title for the specific lot, only a plat showing the location of the lot within the development. You may want to review the decision in Busch v. Sand Lake Hills.
KevinK7
(Florida)

Posts:1342


03/24/2014 4:55 PM  
Posted By ChrisP12 on 03/20/2014 10:25 AM
I am involved in litigation with a voluntary association and in the process of amending my complaint. My question deals with F.S. Ch. 712.08, Filing False Claim under Florida's MRTA. Is Filing a False Claim a cause of action in a lawsuit or is the sole purpose of F.S. Ch. 712.08 to provide a Statutory Basis for recovery of Atty. Fees & Costs "in any action relating thereto". Note that in Florida, Atty. Fees and Costs are recoverable only when allowed by Contract or by Statute. In my case, the false filing relates to counts of Slander of Title and a Dec. Action declaring that the association had no enforcement authority and therefore did not meet the statutory requirement of an association with the privilege to file a SMTA to extend the CCR's.

On a side note, CCR's DO NOT expire under MRTA only if 1). the property title specifically refers to the book and page where the CCR's are recorded or 2). if the original plat specifically shows the book and page where the CCR's are recorded.

Also note the CCR's expire under MRTA 30 years after the "Root of Title" of the affected (encumbered) property, NOT 30 years after they were originally recorded in the public records. The "Root of Title" is the date the Developer recorded the title specific to a particular lot within a development. Prior to that date, there was no title for the specific lot, only a plat showing the location of the lot within the development. You may want to review the decision in Busch v. Sand Lake Hills.





It is my understanding that 712 can be a cause of action for a lawsuit - if an association files a notice of preservation while lacking the authority to do so or beyond the time frame outlined by the law, they are in fact filing a fraudulent document and attempting to exercise authority over another property owner under false pretenses.

It is also my understanding that even if there is reference to a book and page the C&Rs DO expire, unless it is under a conditioned outlined in the exceptions to marketability, with C&Rs filed under to particular chapters - 376 and 403.

You are also correct in regards to your last point involving the "Root of Title."

I also highly recommend the Busch v. Sand Lake Hills case to anyone and everyone in Florida. It can be very enlightening, especially since MRTA seems to be a extremely misunderstood law. And as a side note, I am extremely familiar with the Sand Lake Hills case - I was involved in that neighborhood, as well as another that experienced a conversion by the same attorney and that did not pass the guidelines laid out by MRTA.
GwenG
(Florida)

Posts:574


03/26/2014 9:15 AM  
Could I be so nosy as to ask you what your complaint is/are? I am intrigued that you are a member of a VOLUNTARY association and filing a MRTA complaint.

I was a member of an INvoluntary Association and am now filing my MRTA complaints which include Slander of Title, Quiet Title, Declaratory Relief-Invalidity of Preservation Notice, and Declaratory Relief-Calculating Assessments.
ChrisP12
(Florida)

Posts:13


03/27/2014 6:48 AM  
My original complaint had many counts that I have since voluntarily dismissed because of actions taken by the HOA to fix the problems. The following is not legal advice, only my interpretation of the law.

One count addressed the fact that they were sending invoices specifically marked as an "INVOICE" for dues that no one owed. The HOA has no assessment authority. This count was based upon the Civil Remedies for Criminal Practices chapter of Florida's statutes. The criminal practice/act is Misleading Solicitation of Payments Prohibited. No one can solicit a payment by a document that can "be reasonably interpreted as an invoice" if no goods were ordered or provided and no services were provided. It is a fraudulent act. Since they sent the invoice in the mail it additionally becomes a Federal offense, Mail Fraud. They sent me a settlement check and no longer send "Invoices" to anyone, only a request for voluntary donations which is legal. An important aspect of Misleading Solicitation of Payments is that each and every act of sending each invoice is a violation of law even if no payment is sent in response to the fraudulent invoicing. I contacted the State's Attorney but they declined to prosecute but encouraged me to do so. The most important thing about the count is that since it is a criminal act the members of the board are not protected from personal liability as I read the law.

I do not give them money and therefore am not a member of the association. The association does not meet the definition of a HOA in F.S. Ch. 720 and is only a "neighborhood association". The association was not created by the developer. The association owns no property in the development. The original declaration makes no mention of any association nor does it contain any words on how to create any association.

The current complaint is down to four counts; 1) Declaratory Relief stating that they have no covenant enforcement power, 2) Slander of Title for having filed the MRTA extension against my title without having the authority to do so. The filing has placed a "Cloud On Title" which is anything that affects the title, 3) False Filing per F.S. Ch. 712.08, and 4) Trespass. The trespass count relates to their continued use of a portion of my property that they call common property after I revoked permission for the use granted by a predecessor in title.

I have researched "Quiet Title" as an additional count. My research indicates that a quiet title action is only applicable if there is a question as to ownership of the property or a portion of the property described in the title. It clears the title of ownership questions. This is not the case in my situation. Be aware that a "Quiet Title" action was suggested to me by an attorney that apparently did not understand the law. It resolves questions of real property ownership, not other claims (such as MRTA claims or other "Clouds") as I understand it.

One of the elements of a "Slander of Title" action is that the plaintiff must have suffered "pecuniary" damages/loss. I had to look "pecuniary" up. It means "money". The most common pecuniary loss from "Slander of Title" is the loss of a real property sale because of the slander by the defendant which disparaged the property. The courts have ruled that attorney fees to remove the "Cloud on Title" created by the slander satisfies the pecuniary element. I have attorney fees so I satisfy the element of "pecuniary" damages and can sue. Note that the attorney fees must be pled specifically as "Special Damages" in the complaint. Without the attorney fees the count could have been dismissed for failing to state a cause of action. If I had lost a sale of my property because a potential buyer backed out because of the covenant that was unlawfully extended the "pecuniary" damages element would also have been met.
GwenG
(Florida)

Posts:574


03/27/2014 12:14 PM  
Hello Chris and thanks so much for all the information. Could you please PM me so I can ask a more focused question?
[email protected]
GwenG
(Florida)

Posts:574


03/29/2014 4:51 PM  
My lawsuit was served on the association two days ago. The Complaints are as specified in an earlier post.

Is the HOA required to give Members a "notice of litigation"? Is there any statute or case law that speaks to this?

I have heard that bank financing on housing will stop with the filing of a lawsuit like this due to unpredictability of the outcome. I do not know, however, on what basis that risk assessment is evaluated as I am not asking for a money award for damages. Does anyone know anything about the underwriting of housing loans in CID's in litigation?

As an update to events since the Pre-Suit Mediation, there have been challenges to certain HOA architectural rules following a recommendation by the Association attorney that BOD begin strict rule enforcement. Before now, rules were selectively enforced and covenants waived. As a result of these challenges and subsequent consultations with lawyers, some owners learned that the covenants on their lots were extinguished by MRTA (and also of the slander of their titles). This new awareness has flowed throughout the community and created a new environment of curiosity--people are starting to talk about it and and thinking that covenants expiration might be "real".
JohnC46
(South Carolina)

Posts:7594


03/29/2014 5:06 PM  
Gwen

Are you proud of or you had no idea that financing of units might could stop based on your suit or both?

Have you done more harm then good?

GwenG
(Florida)

Posts:574


03/29/2014 5:40 PM  
I would not ask the question if I knew the answer, but regardless, it would not change my decision to defend my title against this unprovoked attack by my HOA.
TimB4
(Virginia)

Posts:15823


03/30/2014 5:14 AM  
Posted By GwenG on 03/29/2014 4:51 PM

I have heard that bank financing on housing will stop with the filing of a lawsuit like this due to unpredictability of the outcome. I do not know, however, on what basis that risk assessment is evaluated as I am not asking for a money award for damages. Does anyone know anything about the underwriting of housing loans in CID's in litigation?




Part of the housing regulations, that were adopted after the housing bubble burst, are to now also look at the financial health of Assocaitions. HUD developed the guidelines.

Basically, the lenders are not only checking the ability of a borrower to pay back the loan but they are also looking to see if the Association will likely impose a special assessment. One of the questions on that paperwork (that is filled out by the HOA)is if the Association is involved in any litigation. The fact that legal action is pending won't necessarily deny a loan. However, it could make the interest rate higher, thereby causing the buyer to look elsewhere. If this happens enough, OR WORSE IF IT MAKES THE NEWS, Realtors will likely steer their clients away from the development until the issue is resolved.

GwenG
(Florida)

Posts:574


03/30/2014 5:48 AM  
Thank you, Tim, for your thoughtful response in which you offered a basis for lending guidelines and brought a non-hysterical perspective to the issue of lending in these situations.

This is the quality of response that I have come to expect from most "regulars" on this forum.
RM5
(Florida)

Posts:41


05/04/2014 3:02 PM  
I may be a little late but do hope you guys are still actively providing input.

I've been investigating the MRTA issue on and off for about a year and just stumbled upon this forum last night. I too am dealing with an almost identical situation in a South FL HOA with the same type of entrenched hostile BOD mindset.

As a result of KevinK7 citing Matissek combined with a reveiw of title transactions to determine root title and with a bit more digging and searching everything fell into place and I found exactly what I was looking for. Thanks KevinK7.

Did you ever get your issue resolved? I am asking because I noticed some confusion over terminology during your discussion with KevinK7 as well as several keys points missing as well. These same points had alluded me as well for over a year until just last night. They had to do with root title, the type of transactions that establish root title, as well as the exceptions to MRTA as defined in 712.303.

These exceptions described in F.S. §712.03 have seven subparts describing seven "rights" that are not affected or extinguished by MRTA. It is the seventh exception that answered my question. "Rights disclosed on the face of documents recorded from the root to the present, even if they are pre-root matters, provided specific reference is made to the pre-root right." (unfortunately, that is not what I was hoping to learn, but it is what it is).

Here is an excellent cite that explains this all very well: http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/Author/E3897C8163A7258285256BD80071EED5
If the link doesn't work, search for:
The Marketable Record Title Act Made Easy
by Gregory M. Cook
The Florida Bar Journal
October, 1992 Volume LXVI, No. 9

So Gwen,
How did you ultimately make out with your situation.
I am very interested to know.

Regards

RM
GwenG
(Florida)

Posts:574


05/04/2014 5:30 PM  
RM: My issue is currently in litigation and has been turned over to the Association's attorneys for the insurance carrier that handles the D & O insurance. This is within the last 3 weeks so there is no significant progress as yet. However, as the OP, I do follow this forum thread and will be providing updates. And, if you like, you could PM me at [email protected]
JohnC46
(South Carolina)

Posts:7594


05/04/2014 5:51 PM  
RM

Why are you "investigating" the issue? The main reason some are is they are trying to eliminate their association (for whatever reasons) versus trying to extend the association control. Which camp do you fall into?

Thanks
GwenG
(Florida)

Posts:574


05/04/2014 6:52 PM  
Some think that this is a simplistic "Us versus Them" issue. It is not. It is a liability situation. A corporation that acts without the underlying powers and authorities granted by Covenants presents a situation with way too much liability for my financial comfort.

Further, owners do not even have the statutory protection of Florida's homeowner law, which only covers mandatory associations. (Once covenants have expired, an HOA is no longer "mandatory".)

If this homeowner association would acknowledge the expiration of the Covenants and revitalize, the power and authorities to act on behalf of homeowners would be restored and once again be subject to Florida's mandatory homeowner association statute.
GlenL
(Ohio)

Posts:5491


05/04/2014 8:51 PM  
Posted By JohnC46 on 05/04/2014 5:51 PM
RM

Why are you "investigating" the issue? The main reason some are is they are trying to eliminate their association (for whatever reasons) versus trying to extend the association control. Which camp do you fall into?

Thanks



If we expect the homeowners to follow the CC&R's and any applicable laws, is it so unreasonable to expect the HOA Boards to do the same?

Studies show that 5 out of 4 people have problems with fractions
RM5
(Florida)

Posts:41


05/04/2014 9:40 PM  
Posted By JohnC46 on 05/04/2014 5:51 PM
RM

Why are you "investigating" the issue? The main reason some are is they are trying to eliminate their association (for whatever reasons) versus trying to extend the association control. Which camp do you fall into?

Thanks




JohnC46
(South Carolina)

Why does it "matter" to you? For some it is just to engage in annoying frivilous argument (for whatever reasons) versus begging for attention. Which camp do you fall into?

Thanks
ChrisP12
(Florida)

Posts:13


05/05/2014 5:00 AM  
A Declaration of Covenants is a "Pre-Root of Title" document because it is normally prepared by the developer and recorded in the public record before any lots within the development are sold. At the time of recordation of the Declaration the only document for the development is the approved and recorded Plat for the development. The "Root of Title" is created when the developer sells a lot to an individual or a builder. Prior to the sale of the lot there is no title for the lot, the lot exists only as a specific building site (lot) as shown on the original Plat. Since there are many lots in a development and they are sold at different times, the date of the "Root of Title" is specific to each lot. Expiration of a Declaration under MRTA has nothing to do with the date the Declaration was recorded.

The title to each lot usually does not make reference to the specific Book and Page where the Declaration is recorded. The title frequently states, "Subject to restrictions of record" or some such words. In order for the Declaration to not automatically expire under MRTA, the title must refer to the Declaration by the Book and Page where the Declaration is recorded in the public record. The Florida Supreme Court ruled that the statement "Subject to restrictions of record" is not specific enough to preserve the Declaration. There is a caveat to this.

The title to each lot almost always makes a specific reference to the name of the Plat and the location of the specific lot by number as shown in the Plat. The specific reference to the Plat is always by the Book and Page where the Plat is recorded. If the original Plat makes reference to the Declaration (is "shown upon" the Plat) by including the Book and Page where the Declaration is recorded then the Declaration will not be extinguished by MRTA. The title has a specific reference to the Plat (Book & Page) which includes a specific reference (Book & Page) to the Declaration. In addition, if the original Plat actually contains a specific restriction such as a minimum setback requirement, that specific restriction will not expire under MRTA regardless of expiration of any Declaration.

The importance of this issue is that it deals directly with an individual's real property rights and any limitations on those rights. The statutes were written to address those property rights. When an association fails to comply with the requirements of the law it must be challenged. It is important to realize that expiration of a Declaration has little to do with the existence of an association. It just means that the Declaration is unenforceable against a property owner.

In GwenG's case, the association is free to lawfully attempt to Revitalize the original Declaration as allowed by Florida Statute but it hasn't. I don't understand why associations resist complying with the law.
GwenG
(Florida)

Posts:574


05/05/2014 5:34 AM  
As I understand from my own research and from my attorney, everything that you say is true, Chris.

I can understand some reasons why Associations don't comply with the law, especially in Florida HOA's. First and foremost, there is no penalty for NOT doing so. The state has no oversight and there is no one to file a complaint with. The only effective remedy when the HOA refuses is for the homeowner to file a civil suit.

That is another reason Associations do not comply; they will seldom be held accountable by a homeowner. It is simply too expensive and spiritually draining to voluntarily take on a legal fight for years. This goes double for a resort (snowbird) retirement community like the one I live in.

Another reason has to do with the nature of the BOD beast and the personalities of folks who tend to be drawn into an HOA leadership role. These volunteers are not submissive, shrinking violets accustomed to being told what to do. These people seem to only acknowledge greater authorities grudgingly and when it suits their purpose. I have heard it mumbled by crotchety old men "We'd never get anything done if we had to obey all these laws!"

The other reason that I have come to appreciate more during the duration of my complaint is the avoidance of losing perceived and actual control of the community use restrictions and revenue stream. In the case of my community, it is an idea without foundation; we have no enforcement vehicle in our governing documents and cannot fine anyone for anything, we have no right to foreclose on any home for failure to pay assessments in our covenants; (we are only permitted to get a judgement) and the great majority of lots have been expiring for over 12 years and our collections are and have always been near 100%. Use and revenue problems are theoretical and not supported by historical behavior. Yet the Directors make comments like "We will spend every penny in our Reserves to fight this --for the good of the community!"

So, I think the reasons for not complying with the law are multi-faceted; lack of enforcement, no realistic penalties, practical operational rationales, misperception and fear and ego.
ChrisP12
(Florida)

Posts:13


05/05/2014 6:19 AM  
The statement was intended to be rhetorical.

Believe me, I fully understand the nature of the individuals involved and their misguided perception of "What is good for the community" regardless of the law.

You have very effectively elucidated many of the reasons for the behavior of Associations. They are, after all, for the most part, spending other people's money. Perhaps some personal responsibility for the BOD and members instead of absolution under the cloak of corporate immunity.

I am anxiously waiting to see the Association's answer to your complaint.
RM5
(Florida)

Posts:41


05/05/2014 5:05 PM  
ChrisP12 and others
Thank you,
That was very helpful and well written.
But something is still eluding me.

Let me explain:
Suppose, for a all properties within a specific HOA, that all is as explained, (see ChrisP12, 5,5,2014 @12:59PM), i.e., Declaration, Root of Title, and chain of title are all proper and in order. Thirty years from the date of the Root of Title has come and gone. No preservation of Covenants and Restrictions had been done and there is no action or apparent intent to Revitalize. But because the original Plat makes reference to the Declaration by including the Book and Page where the Declaration is recorded and the Declaration is not extinguished by MRTA, --- Then what does it mean to say that the Declaration is unenforceable against a property owner.

Please help me out here.
Thanks
GwenG
(Florida)

Posts:574


05/05/2014 6:32 PM  
You are saying that the Declaration is recorded on the Plat and specifically references the Book/Page where the Declaration is recorded--that means that MRTA can never expire the Covenants. This situation would be similar to a condo where the Declaration is always reimposed by Deed. Chris--what say you? This was the court case that concerned me in my early research-the Sunshine Vistas case.

There are few ways to keep the covenants alive; a specific recordation on the Plat, a Notice of Preservation prior to expiration (by an HOA) or reimposition by personal deed prior to expiration.
RM5
(Florida)

Posts:41


05/05/2014 7:14 PM  
Gwen,
I interpreted Chris’s explanation to be the same as the exception define in 712.03: That MRTA does not extinguish rights "disclosed on the face of documents recorded from the root to the present, even if they are preroot matters, provided specific reference is made to the preroot right."
I do not disagree with Chris and believe that he is correct on that point.

My question is If that is the case as is defined by 712.03, and thus the Declaration is not extinguished by MRTA ---Then what does it mean to say that the Declaration is unenforceable against a property owner.

GwenG
(Florida)

Posts:574


05/06/2014 12:52 AM  
---Then what does it mean to say that the Declaration is unenforceable against a property owner.

Chris made this statement in the context of differentiating extinguishment of the Declaration versus "extinguishment" of the association (corporation). I think he was saying simply that the corporation would continue to exist but it would have lost the underlying power and authorities given it by the Declaration; thus the "emperor has no clothes" as my attorney characterizes the situation. (The emperor is still living in the castle and carrying on as if everything was normal, however.) The Association is still intact but has no contract when the Declaration expires and thus, cannot enforce anything against a property owner.
ChrisP12
(Florida)

Posts:13


05/06/2014 5:46 AM  
Thank you for the clear and concise clarification of my statement GwenG. Some Associations do good things for a community apart from filing lawsuits or threatening to for violation of a Declaration's restrictions.

MRTA only extinguishes the Declaration, the Association can continue in its corporate existence but without the powers conferred upon it by the Declaration. The Declaration is a contract and the contract ceases to be enforceable after MRTA extinguishes it. Many people conclude that when a property owner exercises the lawful right to have the Declaration cease to govern burdened property it is an attempt to "get rid of" the Association. The Association can continue to exist but as a true "Civic" Association if it so chooses. It will most likely have to become a voluntary Association since mandatory membership is an obligation contained in the Declaration. Additionally, any assessment power that the Declaration gave to the Association will cease. The "Emperor" will be naked without any contractual rights or powers. This is also true for any property owner. A property owner's right to file a lawsuit as an individual against another property owner for Declaration violations ends when the Declaration ceases to govern.

The Association, if it meets the statutory requirements, is always free to attempt to "Revitalize" the MRTA extinguished Declaration according to the procedure in Florida statutes.
RM5
(Florida)

Posts:41


05/06/2014 6:12 AM  

Guys,

Believe me, by raising my questions here and by challanging your opinions I am not trying to make you wrong. It is my hope that you are indeed correct. I pray that you are, but before I move on my own matter I need to make certain of that.

With that said please refer to the following 1993 case,

SUNSHINE VISTAS HOMEOWNERS ASSOCIATION, ETC., PETITIONER,
v.
LOUIS CARUANA, ETC., ET AL., RESPONDENTS.

The question raised in Sunshine was as follows:
HAS FLORIDA MARKETABLE RECORD TITLE ACT THE EFFECT OF EXTINGUISHING A PLAT RESTRICTION

The Florida Supreme Court said NO IT DOES NOT and quashed the lower courts decisions and upheld the exceptions to the MRTA as described in 712.03.


Ώ]

SUPREME COURT OF FLORIDA

ΐ]
No. 79,981

Α]
1993.FL.49558 623 So. 2d 490; 18 Fla. Law W. S 463

Β]
decided: September 2, 1993.

Γ]
SUNSHINE VISTAS HOMEOWNERS ASSOCIATION, ETC., PETITIONER,
v.
LOUIS CARUANA, ETC., ET AL., RESPONDENTS.

⎦]
Each of these muniments makes reference to SUNSHINE VISTAS -- the name of the recorded plat that imposed the restriction. The use restriction at issue here thus is preserved by these muniments. We therefore disagree with the courts below that the setback restriction is extinguished by the act. To so hold effectively reads out of section 712.03(1 ) the words: "unless specific identification by reference to . . . name of recorded plat be made therein"; we lack the power to delete words from the statute.X3

⎧]
....... There is no indication that the legislature intended to depart from the prior law regarding plats -- a reference to a plat preserves restrictions in the plat. Cf. David P. Catsman, Function of a Marketable Title Act, 34 Fla. B.J. 139 (1960) (discussing, as co-chairman of the Marketable Title Act Committee of the Real Property, Probate and Trust Law Section of The Florida Bar, the drafting of Florida's act).


ChrisP12
(Florida)

Posts:13


05/06/2014 2:22 PM  
I have reviewed Sunshine Vistas ad nauseam. Read the following VERY carefully.

The Sunshine Vistas case had nothing to do with a Declaration of Covenants or any Restrictions contained in a Declaration of Covenants. The case had to deal with a SPECIFIC SETBACK RESTRICTION contained in the wording of the Plat, not in a Declaration. The Plat and a Declaration are separate legal documents.

The original Plat for the Sunshine Vistas development had specific words in it that required a building SETBACK of a certain amount on each and every lot in the development. Because the property title made a PROPER SPECIFIC REFERENCE to Sunshine Vistas and the BOOK & PAGE where the Plat was recorded the SETBACK restriction contained in the Plat WAS NOT extinguished by MRTA. It was because the SETBACK restriction was in the Plat, nothing to do with a Restriction in a Declaration.

If the property title had made NO mention of the Sunshine Vistas Plat or the BOOK & PAGE where the Plat is recorded then the SETBACK restriction would have been extinguished by MRTA. Since the property title DID MAKE A PROPER REFERENCE to the Plat by PLAT name (SUNSHINE VISTAS) and the BOOK & PAGE the Restriction CONTAINED IN THE PLAT WAS NOT extinguished by MRTA.

The property title made a proper reference to the Plat and the subject SETBACK Restriction was in the Plat, get it? It has nothing to do with a Declaration of Covenants & Restrictions - it has to do with a specific restriction that was "shown upon" the Plat. In this case it was a SETBACK restriction. The original Plat contained the SETBACK restriction, it was not in a Declaration.

Hypothetically, if the SETBACK restriction was only in a Declaration (NOT ON THE PLAT) and the Declaration was NOT PROPERLY REFERENCED by BOOK & PAGE in the property title then the Declaration along with the SETBACK Restriction would have been extinguished by MRTA because the property title did not PROPERLY reference the Declaration by Book and Page.

Hypothetically, if the original Plat WAS properly referenced in the property title AND the Plat made a proper reference (by BOOK & PAGE) to a Declaration then the Declaration should not be extinguished by MRTA.

I wrestled with the Sunshine Vistas decision for quite a while until I understood that the specific SETBACK Restriction was on the Plat and it had nothing to do with any Restrictions contained in a Declaration.

The Plat for a Development must be reviewed carefully to see if it contains any restrictions AND to see if the Plat makes a proper reference (BOOK & PAGE) to any Declaration if a there is a Declaration. I am assuming that ALL property titles make a proper reference to a Plat because it is the Plat that describes the location of the property/building lot. Without a proper reference to the original Plat how would the property title describe where the lot is located?

RM5
(Florida)

Posts:41


05/06/2014 7:35 PM  
Chris
You are absolutely correct.
The Sunshine Vistas case had nothing to do with a Declaration of Covenants or any Restrictions contained in a Declaration of Covenants.

But that was not the point of the case citing or the Supreme Courts’ Decision.

The point of the case citing had to do with the Supreme Courts’ acknowledgement of the 712.03 exceptions to the MRTA and its recognition of the legislative intent of the law, regardless of whether it has to do with reference to a Plat, a Parcel, a Declaration, a Restriction, or a Morsel.

No offense meant, but for legal arguement your hypotheticals are all misplaced and legally irrelevant.
ChrisP12
(Florida)

Posts:13


05/07/2014 7:05 AM  
The Florida Supreme Court in Sunshine Vistas ruled that the legislative intent of the exceptions to MRTA was that if a proper reference is made to a document that contains a Restriction or a Declaration or any other contract that it will not be extinguished under MRTA. The Court basically said that as long as there is a proper reference in the title then those restrictions DO NOT EXPIRE under MRTA and that they (the Supreme Court) cannot change the words of the law. The Supreme Court upheld the validity of the exceptions to MRTA and overturned the lower court's decision.

So I give practical examples illustrating the Supreme Court's ruling and the extreme importance of a proper reference (Book & Page) and how if there is a proper reference those restrictions will NOT EXPIRE and I recommend that a property owner carefully examine the Plat for any Restrictions "shown upon" the Plat or for any proper reference (Book & Page) in the Plat to a Declaration and you state, "No offense meant, but for legal argument your hypotheticals are all misplaced and legally irrelevant."

It is not legally irrelevant if a Plat imposes a Declaration of Covenants and Restrictions when the Plat is properly referenced in a real property title.

If a real property title makes reference to the Plat and the Plat "imposes" a Restriction or "imposes" a Declaration then that Restriction or Declaration WILL NOT be extinguished by MRTA. If the Plat contains no restrictions then there is nothing to be preserved and Sunshine Vistas is irrelevant. If there is a Declaration of Covenants and Restrictions but it is not imposed in the Plat then Sunshine Vistas is irrelevant.

At this point I have no clue if you agree or disagree with the preceding statement.

You appear to be fixating on the Supreme Court's acknowledgement of the 721.03 exceptions to MRTA. If the lower courts had correctly applied the 712.03 exceptions the question would never have been addressed by the higher court.

The 712.03 exceptions were there before the ruling and the Supreme Court stated, "Each of these muniments makes reference to SUNSHINE VISTAS -- the name of the recorded plat that imposed the restriction. The use restriction at issue here thus is preserved by these muniments. We therefore disagree with the courts below that the setback restriction is extinguished by the act. To so hold effectively reads out of section 712.03(1) the words "unless specific identification by reference to ... name of recorded plat be made therein"; we lack the power to delete words from the statute."





RM5
(Florida)

Posts:41


05/07/2014 9:42 AM  
ChrisP12.

I’m going to have to look this all over in much greater detail because I must be missing something. If I decide to take action on an issue I do not want egg in my face afterwards because I threw caution to the wind. Nor do I intend to line some attorney’s pockets to simply burn hours on a loosing argument. You have not argued the point of my question.

My original point was:

“Suppose, for all properties within a specific HOA, that all is as explained, (see ChrisP12, 5,5,2014 @12:59PM), i.e., Declaration, Root of Title, chain of title are all proper and in order. Thirty years from the date of the Root of Title has come and gone. No preservation of Covenants and Restrictions had been done and there is no action or apparent intent to Revitalize. But because the original Plat makes reference to the Declaration by including the Book and Page where the Declaration is recorded and thus the Declaration is not extinguished by MRTA, --- Then what does it mean to say that the Declaration is unenforceable against a property owner.”

My interpretation of Sunshine is that it says that, as a consequence of the 712.03 exceptions, the Association still had enforcement authority over the property owner in spite of MRTA and that the Declaration is enforceable (if properly referenced).

I hope my interpretation is incorrect, but I haven’t heard anyone say anything yet to the contrary that convinces me otherwise.



ChrisP12
(Florida)

Posts:13


05/08/2014 5:03 AM  
I believe your interpretation is correct and I AGREE totally with your interpretation of SUNSHINE VISTAS. In the situation you have described the Declaration would still be ENFORCABLE against all property owners. The MRTA exceptions will preserve the Declaration.

If the Plat makes a reference by Book & Page to the Declaration then the Declaration WILL NOT expire under MRTA and will be enforceable forever.

I know that the following is not relevant to the situation you have presented but it may be relevant to some people. I am not sure if the Declaration would NOT EXPIRE if the original Plat only says, "Subject to Covenants and Restrictions of Record" and does not make a specific reference to the Book & Page where the Declaration is recorded. SUNSHINE VISTAS didn't directly address that issue since it was dealing with a specific Restriction shown upon the Plat and not a Declaration, a separate document. It can be argued either way and will probably rest on the question of do the words alone serve as adequate notice without a proper reference to the Declaration by Book & Page.

My reasoning is that if those words ("Subject to Covenants and Restrictions of Record") are not specific enough for preservation if they appear on a property title then they are not specific enough for preservation if they appear on the Plat. But, if the Plat makes specific reference to the Declaration by Book & Page (as in the situation you have presented), then it most certainly is specific enough for Declaration preservation according to the MRTA exceptions.

I have not found any case law that would clarify if the Plat MUST reference the Declaration by Book & Page (as I believe it must but that is only my opinion by my reasoning above).

In your paragraph that describes the situation of your original point I don't know what the basis of the last sentence (a question ?), "Then what does it mean to say that the Declaration is unenforceable against a property owner." is. I don't understand where that question, "Then what does it mean to say that the Declaration is unenforceable against a property owner." comes from. In the situation as described in your original point the Declaration WOULD be enforceable against property owners. It would be hard to argue otherwise.

RM5
(Florida)

Posts:41


05/08/2014 10:50 AM  


Okay, then, with that established: ---In such a case where the MRTA exceptions preserve the Declaration (and all other documents) and therefore are still ENFORCABLE against all property owners, ----DOES THE HOA have any legal requirement to revitalize their docs?
GwenG
(Florida)

Posts:574


05/08/2014 1:46 PM  
@RM5: It is my understanding that the Association is not under any legal duty to attempt revitalization. However, there was a recent court case (about a year ago) won by a homeowner who prevailed on a complaint that her HOA failed to protect the Covenants which had expired (I don't think it was by MRTA). In that case, the HOA was a very specific one thematically and functionally (equestrian) and I recall that the ruling cited the "swiss cheese" effect of allowing the HOA to remain expired.

While there is no duty to revitalize, there may be an implicit contract to maintain the HOA as the original Developer intended and covenanted. I think the Association would be vulnerable to a lawsuit by owners who wanted the "protection" of Covenants and also Florida's HOA statute, (which only applies to mandatory HOA's).
RM5
(Florida)

Posts:41


05/08/2014 3:10 PM  
A point of uncertainty is with the implications associated with the MRTA 712.03 Exceptions. Couldn't it be argued that implicit in the Exceptions is perpetual preservation thus negating ever having to consider revitalization; kind of like a switch that when turned off, automatically turns itself back on.

I recall reading that (equestrian) case.
Do you happen to have its citing handy?
Thanks
GwenG
(Florida)

Posts:574


07/06/2014 10:31 AM  
There has been a new development related to expiration of covenants: BOD has instigated a lawsuit against an owner's $100K+ new home which is sited contrary to a Rule. (As an aside, this $100K+ home is easily the "showcase" home in this community, where the average sale price is just over $30K.)

As a point of interest, many homes in the community have been sited in the past contrary to rules but the owners have never been sued. However, in the current environment where I am litigating a Declaratory Judgement on the issue of covenant expiration, BOD is extremely threatened because subject homeowner asserts that their parcel declarations expired prior to their purchase of the land. Owners have offered their deed chain of title as evidence of that. Additionally, they were assured by the Title Company that there were no covenants in operation on their lot which had been expired by operation of MRTA.

The beleaguered homeowners proceeded to site their new home and acquired all county permits. To complicate matters, they met in person with BOD's agent (the manager) about the site plan prior to home delivery and were given a written OK to build on the lot.

Many believe this to be the tactics of a BOD fearful of losing control of the community and they are intimidating everyone by launching this show of power against ALL owners by their actions against this homeowner.
MelissaP1
(Alabama)

Posts:7477


07/06/2014 10:45 AM  
Uhm... Hate to tell you this... BUT it is NOT the board bringing the lawsuit against this HO...It is ALL of the HOMEOWNERS... The board represents the homeowners as a WHOLE. So I would suggest that ya'll get together and remove the board and replace them.

Are you saying a homeowner built a 100K home in an area that average home sales are $30K??? Talk about ruining the resale comps for everyone. The 100K owner shot themselves in the foot if that is true but he upped the value of the surrounding homes.

Still unclear of what the lawsuit is about. They are building out of spec of the homes? I am not sure how upset I would be if a mansion went in next to my shack...

Former HOA President
KevinK7
(Florida)

Posts:1342


07/06/2014 11:05 AM  
Posted By MelissaP1 on 07/06/2014 10:45 AM
Uhm... Hate to tell you this... BUT it is NOT the board bringing the lawsuit against this HO...It is ALL of the HOMEOWNERS... The board represents the homeowners as a WHOLE. So I would suggest that ya'll get together and remove the board and replace them.

Are you saying a homeowner built a 100K home in an area that average home sales are $30K??? Talk about ruining the resale comps for everyone. The 100K owner shot themselves in the foot if that is true but he upped the value of the surrounding homes.

Still unclear of what the lawsuit is about. They are building out of spec of the homes? I am not sure how upset I would be if a mansion went in next to my shack...


With MRTA, the HOA no longer represents all homeowners. They now represent just their members. They would now only be governed by Florida not for profit corporation laws and not HOA laws.
GwenG
(Florida)

Posts:574


07/06/2014 11:11 AM  
Melissa, your comments are so predictable--the "You are suing yourself" mantra is tiresome and just not a compelling enough reason to set aside basic civil and property rights!

Homeowners are horrified by the Board's actions, they are also essentially immobilized by physical distance and/or the apathy of ignorance. Most reside in Canada and visit the "FL cottage" in the community only few months out of the year to get warmed up and play golf. Many had no idea what a "covenant" was until a year ago. Assessments are so low, compared to cost of living in Canada, as to be regarded as chump change--thus encouraging indifference to increased assessment fees...and apathy.

However, to answer your question, the lawsuit is for Declaratory Judgement and Injunctive Relief. I guess the BOD wants the court to tell the homeowner that HOA trumps the county and to take the two halves of their new home elsewhere...

The home is IN SPEC with the County and that is the only entity that has jurisdiction; the lot is not encumbered by Covenants. The covenants expired before the homeowner bought the lot. The home's siting is similar to many, many homes in the community whose owners have not been sued.
KevinK7
(Florida)

Posts:1342


07/06/2014 11:36 AM  
Posted By GwenG on 07/06/2014 11:11 AM
Melissa, your comments are so predictable--the "You are suing yourself" mantra is tiresome and just not a compelling enough reason to set aside basic civil and property rights!

Homeowners are horrified by the Board's actions, they are also essentially immobilized by physical distance and/or the apathy of ignorance. Most reside in Canada and visit the "FL cottage" in the community only few months out of the year to get warmed up and play golf. Many had no idea what a "covenant" was until a year ago. Assessments are so low, compared to cost of living in Canada, as to be regarded as chump change--thus encouraging indifference to increased assessment fees...and apathy.

However, to answer your question, the lawsuit is for Declaratory Judgement and Injunctive Relief. I guess the BOD wants the court to tell the homeowner that HOA trumps the county and to take the two halves of their new home elsewhere...

The home is IN SPEC with the County and that is the only entity that has jurisdiction; the lot is not encumbered by Covenants. The covenants expired before the homeowner bought the lot. The home's siting is similar to many, many homes in the community whose owners have not been sued.


The legal advice from my last neighborhood's lawyer was to keep enforcing until a judge says otherwise, and when a judge did rule otherwise they still looked to find a way to continue but with an exodus of homeowners who were members out of fear the HOA collapsed under its own weight.

My current neighborhood has decided to ignore MRTA. They were informed years ago but continue enforcement to this day. They decided to leave me alone since I raised questions and threatened to sue. I started informing my neighbors through yard signs, email, letters, and a website and the response has been great. Many were not aware of their rights and submitted because they lacked the money for a protracted legal battle. Now that more people have started asking questions and pushing back the HOA stepped up harassing me again. Problem is I don't scare easily.

There are people who are trying to change the HOA from within bbut have no chance. They don't fully understand the process and the HOA uses their newsletter to paint any opposition as unreasonable kooks.
DonaldR2
(Florida)

Posts:4


07/11/2014 12:01 PM  
We have four homes that do not belong to our association. Back in 2011 our attorney advised our president ( who is now our vise president) that we needed to renew our covenants and he did nothing. In 2013 again the attorney mentioned it and we did renew them. We asked the 3 of the 4 homes if they wanted to rejoin at the associations cost and they said the 4th one is in probate now. We will not be getting the monthly dues from these homes and our dues may have to go up to make up the difference. We also have a group of residents stating if those four don't have to pay they do not have to pay. Any thoughts, input etc.
DonaldR2
(Florida)

Posts:4


07/11/2014 12:03 PM  
the three homes do not want to rejoin
DonaldR2
(Florida)

Posts:4


07/11/2014 12:11 PM  
The original developer recorded the original declaration in 1979. The first lot was conveyed by the developer by a deed in 1980, second lot 1980, third lot 1981 and forth 1982.
KevinK7
(Florida)

Posts:1342


07/11/2014 2:46 PM  
Posted By DonaldR2 on 07/11/2014 12:01 PM
We have four homes that do not belong to our association. Back in 2011 our attorney advised our president ( who is now our vise president) that we needed to renew our covenants and he did nothing. In 2013 again the attorney mentioned it and we did renew them. We asked the 3 of the 4 homes if they wanted to rejoin at the associations cost and they said the 4th one is in probate now. We will not be getting the monthly dues from these homes and our dues may have to go up to make up the difference. We also have a group of residents stating if those four don't have to pay they do not have to pay. Any thoughts, input etc.


Not only are those couple houses no longer required to do anything because the covenants expired, based on the information provided - that the covenanta were "renewed" in 2013 -ALL the covenanta on ALL the lots are gone unless the HOA antld their attorney properly revitalized the rxpired covenants. If they did not and just decided to renew, that alone would not be enough to protect your HOA. Anyone could leave at anytime. What could make matters worse is that knowing this the board can open themselves up to some hige liabilities.

Still enforcing covenants, fining, and assessing homeowners? While nothing is really stopping you, there may be some changes in how you do business until properly revitalized. Now only Florida Statute 617 woukd govern just the association and its voluntary members.
GwenG
(Florida)

Posts:574


07/11/2014 4:16 PM  
We also have a group of residents stating if those four don't have to pay they do not have to pay. Any thoughts, input etc.


This group of homeowners should get educated about their obligations as members of the HOA or they will end up paying assessments AND penalties AND interest AND attorney fees--or worse, lose their homes.

I am unclear from your post what was done and when. I note many use the term "renewed"; there is no such term under FS712, the MRTA law. There is either "preservation" and this must be done exactly as instructed by FS 712 PRIOR to expiration of Covenants on individual parcels, or "revitalization" that might be attempted AFTER expiration and must be voted on by those previously encumbered by Covenants. Revitalization requires at least 50% of all members to approve a "revitalization package" to be submitted to the State of Florida for approval. Revitalization cannot re-encumber all parcels; homesteaded parcels can opt-out of a revitalization. This is detailed in FS720 Part III.

If there is opportunity to opt-out, many people will not willingly allow their property to be re-encumbered by an HOA. Allowing covenants to expire is, in my opinion, a reckless neglect of fiduciary duty and I would not willingly subject my property a second time to such a careless system. My attorney says there is still an implicit contract to pay user fees to the Association even if you choose not to become a member of the Association. "Assessments" become user fees and subject to collection through the same means as any other consumer debt.

Listen to Kevin--he is one of the very few people who has been all the way down this road. I am just beginning the journey.

DonaldR2
(Florida)

Posts:4


07/11/2014 4:40 PM  
Yes our attorney took the proper steps to extend our covenants with the state and county. I just wish it was done in 2011 when it was told to the board but like I said earlier they ignored the attorneys advise.
KevinK7
(Florida)

Posts:1342


07/11/2014 5:17 PM  
Posted By DonaldR2 on 07/11/2014 4:40 PM
Yes our attorney took the proper steps to extend our covenants with the state and county. I just wish it was done in 2011 when it was told to the board but like I said earlier they ignored the attorneys advise.




You wrote the following: "The original developer recorded the original declaration in 1979. The first lot was conveyed by the developer by a deed in 1980, second lot 1980, third lot 1981 and forth 1982."

If the original covenants were from 79 - 82, then the last of the covenants would have expired in 2012. You said the attorney "renewed" the covenants in 2013. I just want to clarify because it is a hugely important difference. Since the covenants expired in 2012, then the neighborhood would have had to go through the revitalization process - something that the attorney and HOA could not do on their own. This process requires organizing committees and once all is drafted copies be delivered to every homeowner within a certain period of time before consent is sought by the organizing committee. Then, a majority of homeowners must agree in writing to the new covenants and have them certified.

Once that occurs the documents are off to the Department of Community Affairs for approval. Once approved it is off to the clerk of the circuit court to again file every document. Then it is off to deliver all of this to every homeowner.

If none of this happened then it is safe to say that the C&Rs were not properly renewed and your neighborhood could have bigger problems then trying to get three properties to be governed by the HOA. Straighten all this out and you may be able to commence with enforcement without risk of liability.
GwenG
(Florida)

Posts:574


07/11/2014 7:14 PM  

You wrote the following: "The original developer recorded the original declaration in 1979. The first lot was conveyed by the developer by a deed in 1980, second lot 1980, third lot 1981 and forth 1982."

Your "root of titles" therefore, would have been 1980, 1981 and 1982. Through operation of MRTA, these lots would expire 30 years after the root of title in 2010, 2011 and 2012 (unless preserved prior to expiration). The only possible option would have been to revitalize in 2013 as these covenants would already have expired. Had the Board preserved in 2011, it might have been able to preserve the third lot and definately preserved the fourth lot. The Board could then have attempted to revitalize Lots 1 and 2 (and possibly lot 3).

As Kevin said, revitalization is a lengthy, tedious process that would require a massive community effort and organization. Following a successful revitalization, each Member must receive a complete new set of documents with a new Declaration date. There could not be any confusion about the magnitude of activity, expense, administration and general jumping through hoops with a revitalization versus the simple, Board-initiated filing of a 2-3 page Notice of Preservation.

Is this what happened? If not, and steps were taken, as you said, to "extend", it is likely that the attorney attempted to "preserve" the covenants by filing a Notice of Preservation in the county record. That would falsely re-encumber property and a cause a slander to all titles whose restrictions had expired during the preceding 2 years.

You should have received a copy of whatever was filed; this is required by the state. However, you can also look up the filed document in the official records of your county.
RM5
(Florida)

Posts:41


07/16/2014 1:30 PM  
Good to see you back.
Got pictures?

Personally, I still have not resolved the point of uncertainty associated with the implications of the MRTA 712.03 Exceptions.

In any event, another point of interest about the revitalization process is that it gives the members the opportunity to bring their CC&Rs up-to-date, consistent and in tune with current FL statutes. During the past 30 years statutes have evolved whereas CC&R remained stagnant, (like some former Board presidents on this forum). And although, in many cases the FL Statutes defer to the governing documents as the presiding authority when the two conflict, the CC&Rs, in most cases, must not be more restrictive than corresponding statute.

GwenG
(Florida)

Posts:574


07/16/2014 6:13 PM  
Updating the C&R's must be consistent with the Statutes that the original Declaration were established under; in our HOA's case, FS720 was not "born" until 2000 and our HOA was incorporated in 1972 under the then-existing FS617 governing non-profit corporations. Because the original Declaration stated no intent to be governed by any changes or amendments of the statute of a substantive nature, the Declaration must then be revitalized per the original statutes existing in 1972. This means that those updating the Declaration must be careful to avoid adding in "updates" that would impair the original contract made under FS617. The only updates to such a Declaration would be limited to those addressing "procedural" matters. This is one reason why HOA's require professional legal assistance with preparing revitalization documents.

The benefits of revitalization in my community would be the addition of an amendatory provision, which Florida permits when none existed in the original. Florida also permits an amendatory voting threshold of 2/3 for the Declaration.
RM5
(Florida)

Posts:41


07/17/2014 2:39 AM  
Thanks,
Good point
Further inquiry led to another very interesting and informative discussion
previously posted in 2011 titled: "Fl 720 vs 617 conflict," (+ conflict with governing docs)
BruceS3
(Florida)

Posts:33


07/17/2014 5:37 AM  
I am a little confused by all this discussion on MRTA, C&R, etc. Mostly I really do not know what constitutes a Mandatory HOA. We have one because we have three retention ponds and under the St. Johns River Management we are required to have one.
I reread our documents last night and nowhere did it say we were required to have one.
Can anyone tell me where to find the guidelines that require a mandatory HOA?
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