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

Posts:592


01/22/2015 5:16 PM  
Ha! RM5 you are on a ROLL! Thanks for the giggle.
SkunT
(Ohio)

Posts:73


01/23/2015 9:59 PM  
Posted By TimB4 on 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.







Wait sewage services???? So the HOA owns the sewage lines and pumps not the City? If that's the case or not why do they still pay sewage as part of their water bills then?
TimB4
(Virginia)

Posts:15999


01/24/2015 5:48 AM  
Posted By SkunT on 01/23/2015 9:59 PM


Wait sewage services???? So the HOA owns the sewage lines and pumps not the City? If that's the case or not why do they still pay sewage as part of their water bills then?




Skun,

If you are interested in Sharon's unique issue with her Association, see her earlier thread:


http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/146787/Default.aspx Subject: Nonrecorded HOA documents

Keep in mind that Sharon's post count is showing zero. This is a typical indication that she has resigned from the forum. If she has resigned, she will not be able to respond to any questions you might have.
RM5
(Florida)

Posts:41


01/27/2015 5:42 AM  
I was recently sent some papers to review, discussion and help. Ten years of legal filings over an HOA matter handled by a pro. se. Unfortunately the justice system does not operate the way people expect it to. The system does work great as fly paper.

In any event, even after a win, in the case of an HOA issue, the Association attorneys will encourage appeals from a MANBOD that has nothing to loose. Its a perpetual money machine for the attorneys on both sides. Even if the BOD looses the case, they get a chuckle over the cost and expense to the homeowner litigant. And after a win, awards can be stalled and delayed requiring more billable attorney time and more court involvement in order to collect.

In this particular cut and dry MRTA case, don't understand why the homeowner attorney has not filed Motion for Summary Judgement yet and why the pandering to the adversary's gaming the system with its Motion for second mediation? without moving for sanctions. (except for reasons outlined previously)

In his thread http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/103610/view/topic/Default.aspx
Subject: Small Claims Court Suits
JonD1 from NY wrote:

"Through my life I have learned regarding the legal system.
If you think being right makes you a winner you are wrong.
If you think most judges understand in detail the facts of each case, they do not.
If you think most judges bother to review all the material put into evidence, they don't. Neither do their clerks.

If you think most courts have a desire to administer justice in a timely fashion, they don't.
If you think any judge really cares as to how their decisions affect those involved, they don't.
The legal system is a joke.
IMO. There is different justice for different people, who you know plays a role in the outcome of cases, there is no regard to time or cost for the parties involved, people are allowed to abuse the system to seek vengeance, and many judges serve far to long and lose any contact with reality and the real world.

The system is designed to feed itself and move as slowly and costly as possible for those who make a living through it, while draining those brought to court with no regard to outcome or affect.

Ever sit in on a civil proceeding? There is no end because people stop making money if a case is settled or terminated.

Making sense to a judge and providing clear evidence supporting your case means nothing. Sad but true. "

I've seen this as well myself.
I am not an attorney and do not pretend to be.
This is not legal advise, just an observation and an opinion.


Hope your case proves to be different for you.
Please keep posting updates.
Good luck
GwenG
(Florida)

Posts:592


01/27/2015 8:25 AM  
RM5 wrote: In this particular cut and dry MRTA case, don't understand why the homeowner attorney has not filed Motion for Summary Judgement yet and why the pandering to the adversary's gaming the system with its Motion for second mediation? without moving for sanctions. (except for reasons outlined previously)

Delay for SJ due to Motion to Consolidate two very similar cases in this Association by the same attorney. Motion to Compel Mediation then filed on the Consolidated Cases.

Attorney advised that Florida URGES Judges to grant Motions to Mediate even where it has been tried before and impasse resulted. In fact, there can be multiple Motions to Compel Mediation and Judges will likely grant the Motion until the (suggested) statutory limits of trying these kinds of cases is reached or exceeded (supposed to be cleared out in one year). This times me out until the fall UNLESS the Summary Judgement--the hearing of which will occur following the Mediation impasse probably 90 days from now--is granted. If granted, there will probably be an appeal...sigh.

Delaying progress is the only game left to the Association. They are now revitalizing and admitted that Covenants have expired. They continue to litigate and spend the owners' money. Owners getting VERY antsy!

Patience, Grasshopper

Switch topic: I co-sponsored an owner--generated 2-hour MRTA seminar for owners in my community with my attorney as Guest Speaker a few days ago. I was gobsmacked by the turnout. I estimated 100 or so--and over 300 turned out. Standing room --all chairs out of storage--people in hallways--ran out of handouts. The seminar was mostly Q & A by owners about MRTA and my lawsuit and a second MRTA-related one brought against the Association.

Received report of a plan to disrupt meeting (with possible violence) the morning of the meeting and requested and received police presence on the property to deter meeting disruption. People were angry at the Board for blocking owners from information about not only this issue--but ALL business of the Association. The park is abuzz. BOD not feeling the luv right now...

RM5
(Florida)

Posts:41


01/27/2015 12:16 PM  
Oh. Was not aware of that. (i.e. consolidation). Interesting. There are Two separate lawsuits consolidated into one? Are they similar involving MRTA? Or are they different and combined with respect to related/overlapping aspects? Either way, Can that not be a double edged sword? I question this from the standpoint of both (grasshopper) ignorance, and learned cynical skepticism. Here's why I say this: It would seem that depending on how the two cases are or are not related, that each case, on and by its own merits, consists of a reasonably simple, clear cut fact pattern, whereas the resultant fact pattern of the consolidated case becomes a bit convoluted.

And here's where I envision to two edges come into play. If handled properly the first time, with a judge paying attention to the case and not something else, (remember the judge who was caught masturbating during a murder trial, http://usatoday30.usatoday.com/news/nation/2006-08-18-judge-sentenced_x.htm), the "case" can be (handled) very efficiently with a final outcome that is clean(cut) and resolute.
But hopefully it all gets handled and resolved properly the first time through, and in your favor because, (and here's where the other edge comes in), trying to re-litigate such a convoluted rat's nest of a case pattern over judicial laziness or error afterwards is a nightmare. (Like doctors treating the wrong patient or removing the wrong leg, judicial errors are even more common and often are not errors at all, and are less likely to be tried and prosecuted). Patience is okay, but this bug would much rather be in the know and see exactly where is the crow and what it is doing. Hopefully its eating that other grasshopper that did not pay attention.

Question:
What happens if other homeowners wish to join? Has there been any talk of a class action? Would that lead to the filing of more motions for mediation.
GwenG
(Florida)

Posts:592


01/27/2015 12:32 PM  
There are counts of both cases that are exactly the same, so only those counts have been consolidated. I totally see where you were going with the concern about consolidating cases. Indeed, I had a moment of discomfiture when my lawyer told me about the consolidation simply because "the other side" did not object to the consolidation (paranoia?).

I was told by my attorney that when the Summary Judgement is granted, there will be period of time for "joinder" by others similarly situated but the Judge must grant this. I am advised that a "joinder" action is equivalent to a "class action" in this case.

I am guessing that with a Summary Judgement, that will put an end to endless mediations. You made some good points there.

I did not recall the case of the Rub-a-Dub Judge.
RM5
(Florida)

Posts:41


01/27/2015 1:29 PM  
Posted By GwenG on 01/27/2015 12:32 PM
There are counts of both cases that are exactly the same, so only those counts have been consolidated. I totally see where you were going with the concern about consolidating cases. Indeed, I had a moment of discomfiture when my lawyer told me about the consolidation simply because "the other side" did not object to the consolidation (paranoia?).

_____________________________________________
“Paranoia is just having the right information.”
― William S. Burroughs

“Just because you're paranoid doesn't mean they aren't after you”
― Joseph Heller, Catch-22

AND

“Call me paranoid. I'm frequently right.”
― Seanan McGuire, A Local Habitation


______________________________________________
I was told by my attorney that when the Summary Judgement is granted, there will be period of time for "joinder" by others similarly situated but the Judge must grant this. I am advised that a "joinder" action is equivalent to a "class action" in this case.

_______________________________________________
Is SJ a guarantee?
Has there been any talk of others wanting to join?

_________________________________________________
I am guessing that with a Summary Judgement, that will put an end to endless mediations. You made some good points there.
_________________________________________________
Will be interested to learn what you find out about this for certain.

_________________________________________________
I did not recall the case of the Rub-a-Dub Judge.
_________________________________________________
It is reported that he got a very stiff sentence



RM5
(Florida)

Posts:41


01/28/2015 10:02 AM  
In a case involving MRTA such as the one discussed herein, what are the ultimate judicial remedies and the extent of damages that the court can award.

Other than attorneys fees, what other monetary damages are involved?
Clearly there is no personal injury involved or attorneys would take such cases on full or partial contingency.
Has there been a diminution in value realized?
How is that calculated?


In any event, Hopefully your neighbors and the community at large understand appreciate that in the end, the outcome of your time and out-of-pocket expenses you have devoted to this cause is going to benefit everyone there.

Personally I learned a tremendous amount from everyone who constructively contributed to this forum, having led me to answer my own questions and discover that my own MRTA issue was moot (due to the 712.03 exceptions) and not worth the time and effort to pursue.

RM5
(Florida)

Posts:41


01/29/2015 9:15 AM  
Just to clarify the closing of the last thread:
It was not meant to denigrate the originally posted MRTA issue at hand.
It was meant to express gratitude to those who have posted and shared their knowledge and experience herein.
Thank you

TjC
(Florida)

Posts:3


02/02/2015 4:53 PM  
How does contract law play into Revitalization?
Suppose there is suspected fraud or deception taking place.
Is there anything like predatory lending protection on the State or Federal level to protect against deceptive, coercive, exploitative or unscrupulous wording in a revitalization agreement?
GwenG
(Florida)

Posts:592


02/02/2015 6:30 PM  
Update: I and two other litigants sponsored an owner-generated MRTA seminar & Q & A for two hours on Jan 25th. Two days later, the Association announced they would hold a Q & A on Feb 2.

Forum took place today. Association announced that revitalization packages were being mailed. I have not read one yet but they represent that no changes have been made--the conservative approach. I will scrutinize the package.

Questions from audience terse. Most questioners had already attended "my" MRTA seminar and asked some hard questions. Association's lawyer (FOUR OF THEM!) were uncomfortable, shifted focus, and gave pat answers. Members not impressed.

Lawyers also publicly lied and attacked me. I stood up and refuted the accusation. Lawyer visibly stunned at counterattack.

Lawyer stated that "Covenants are still active"--we are revitalizing as a "legal strategy" to try to moot the current lawsuits and strengthen position for future challenges.

Revitalized docs include two invalid Amendments to the Covenants (no amendment provision in the covenants), which lawyer likes to call "replacement covenants" and says the Developer meant to do other than was actually stated in the Covenants.

I will challenge the revitalization with the Dept of Economic Opportunity if the revitalized docs are affirmed.

I was physically accosted by a woman as I left the meeting. No injury.

Re: TjC question about revitalization agreement; this agreement has been referred to my attorney. There is questionable language on the Consent Form. Re: deception and fraud--many believe BOTH are taking place and are looking for deep pockets for a forensic audit.
RM5
(Florida)

Posts:41


02/02/2015 7:43 PM  


Lawyer stated that "Covenants are still active"--we are revitalizing as a "legal strategy" to try to moot the current lawsuits and strengthen position for future challenges.

Revitalized docs include two invalid Amendments to the Covenants (no amendment provision in the covenants), which lawyer likes to call "replacement covenants" and says the Developer meant to do other than was actually stated in the Covenants.

I will challenge the revitalization with the Dept of Economic Opportunity if the revitalized docs are affirmed.

Do you want to/need to wait for affirmation before challenging with DEO? Why wait?
Wouldn't it be better to have them rejected first before they have a chance of being affirmed?


How much does/will a forensic audit cost? We are considering the same, but unlike other places I/we don't have deep pockets, no homeowner support to speak of (one or two non-doer supporters) and no-one to sponsor a SNAP, (which is a real nice touch by the way).
TimB4
(Virginia)

Posts:15999


02/02/2015 8:20 PM  
Posted By RM5 on 02/02/2015 7:43 PM

How much does/will a forensic audit cost? We are considering the same, but unlike other places I/we don't have deep pockets, no homeowner support to speak of (one or two non-doer supporters) and no-one to sponsor a SNAP, (which is a real nice touch by the way).




Audits, depending on the number of years audited, can easily be $8,000 or more.
A forensic audit will cost much more as that is a specific specialty.

See: http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/118391/view/topic/Default.aspx Subject: Financial Audits, Reviews or Compilation Which do you use?


As an example, this past year we had a financial review for 2 years worth of records. It cost $1,800.



RM5
(Florida)

Posts:41


02/02/2015 8:32 PM  
Posted By TimB4 on 02/02/2015 8:20 PM
Posted By RM5 on 02/02/2015 7:43 PM

How much does/will a forensic audit cost?




Audits, depending on the number of years audited, can easily be $8,000 or more.
A forensic audit will cost much more as that is a specific specialty.

Ouch!
And we were considering looking at seven years.
Fat chance that's gonna happen.
Is it no wonder why sitting Boards want to keep their circle closed





ChrisP12
(Florida)

Posts:13


02/03/2015 4:54 AM  
Hey GwenG, so an attorney stated that the covenants were still active. That is interesting since you can only "Revitalize" covenants that have "ceased to govern one or more parcels" according to 720.403(2). Since when does the law matter to what an attorney says, legalized liars they are.
GwenG
(Florida)

Posts:592


02/03/2015 5:44 AM  
ChrisP12

The Members witnessed a shameful display from this law firm; when questioned about details, lawyer always ready with a related but misdirected response to make listeners forget the question. Obvious "handling" of the question. I believe many (aside from the True Believers in the BOD) "got it".

The Association is governing by a new private HOA doctrine which contains phrases uttered by Directors many times over the years "We can only see the present", "Making it up as we go along" and "Let the Chips fall..." The leaders also signed on to the "Tinkerbell Treaty"--if you can only make them BELIEVE hard and long enough--truly believe they can fly, you will eventually prevail in the effort to control through persuasion. It is part of an equation, however, and there must be collusion with a passive group that abdicates reason and accountability for Tinkerbell to sprinkle her cerebral fairy dust.

RM5

Our current concern is that the revite package contains a Ballot Sheet encoded with all owner names and the Parcel ID. It seems that it simply asks the owner to vote on the revitalization DOCUMENTS when, in reality, by signing your name, you CONSENT to be re-encumbered. This means that even if you vote NO, you CONSENT to be re-encumbered by affirmative passage by the membership, thereby losing certain rights to challenge the encumbrance under Florida homestead protection and/or constitutional arguments. This was done without notice but an alert member picked up on it and put the word out. The word is "If you want to vote NO--Don't Vote!"

Challenge of a passed revite package will not happen until April or May since the Ballot results will not be known until March 25th. If none of the three packages are affirmed, there is nothing to challenge. We have already made internal challenges but that is unproductive at this point, except to have it as part of the official record for future challenges. It appears that this Association will be bogged down with legal challenges for the duration if the revitalization is affirmed.

As far as my lawsuit, I believe that I am in a difficult corner--I cannot settle my suit if I want to do the right thing (morally). The only thing that will support future legal challenges is a Declaratory Judgement and voiding/nullification of the Amendment Documents included in the Revite Package. That will not be adjudicated if I settle. I am already being villanized for resisting attending a SECOND mediation before my motion for a Summary Judgement can be heard.
RM5
(Florida)

Posts:41


02/03/2015 7:10 AM  

GwenG:

Oh, I misinterpreted what you meant by "affirmed". You mean affirmed by the owner/membership, not approved by DEO, is that correct?

Unfortunately, as you probably know, getting out the Word is not enough. Unless it is has the commercial appeal of a jingle like "Rice a Roni, the San Francisco treat!", "The best part of waking up is Folgers in your cup!", "Like a good neighbor, State Farm is there!", that can be parroted back with no thought, you might as well spend your time having conversations with your pet Macaw. You have to have a slogan, no more than four words, preferable with a symbol (like a heart) embedded in it, that people will get in line for and fight over. ;)

Who is villainizing you for resisting a second mediation? Can't you file an objection and have the judge rule on it and proceed from there. If the judge orders it then do it, if not then go to the next step.

Your moral dilemma is a tough one. But, except for a very few, very close friends/partners, what you do and the outcome derived therefrom will make no difference one way or the other. Hopefully your obsession has not made this your final life's legacy and that you are still movin after all is said and done with it. (Maybe more on this for another time).
GwenG
(Florida)

Posts:592


04/09/2015 2:17 AM  
Much has happened in the last month.

In answer to the question "Who is villainizing me?" for resisting a second mediation at the final hour, an opposing attorney to the companion case to mine who is not even a party to my case stated I was being uncooperative to about 300 people at a community meeting. I stood up and challenged the attorney and politely called him a liar who had no business saying anything about my case! Other villains: The Board and other Owners. This has divided the community and Owners are bitter and ugly.

On advice of my lawyer, I agreed to a second mediation. It lasted for 10 1/2 hours, involved 7 attorneys and two separate conference rooms in downtown Orlando. It was entirely paid for--parking, lunch, snacks and a nice bottle of wine--all my attorney fees--by the insurance carrier.

To put it bluntly, it was a clean sweep and I retained the right to continue my MRTA litigation of a key issue AND got all my costs and fees returned to me plus a significant bonus if I prevail on the remaining item to be litigated. My companion (consolidated) litigants had the HOA's case dismissed, a separate civil action dismissed and also got all their attorney fees back. They also were successful in resolving their MRTA countersuit.

The key concessions from me were: no appeal of the upcoming litigation and no legal challenge of revitalization with Florida's Dept of Econ Opp. In reality, the only meaningful concession was "no appeal" as there are several owners who will sponsor a challenge to revitalization. (Revitaization: separate subject and too complicated for this update).

The HOA was humiliated and angry. The insurance company was quite distressed with our board. The Owners paying for this are fed up with the board and confused about the whole thing.

Next step is for the judge to rule on my issue and then I and the companion litigants will prepare a case for damages.

Since then, TWO major personnel changes (firings!)have been made, much to the relief of many.
MelissaP1
(Alabama)

Posts:7671


04/09/2015 7:45 AM  
The HOA your a member of? Just asking so know who is really paying...

Former HOA President
TimB4
(Virginia)

Posts:15999


04/09/2015 7:48 AM  
Gwen,

That's great news. Thanks for the update.
Please keep us posted as your issue progresses along it's way.

It's a shame that the Board didn't understand the issue or received bad advice concerning the issue to have had them take the position they did.
GwenG
(Florida)

Posts:592


04/09/2015 8:42 AM  
@Melissa; EVERYBODY pays in some fashion when the HOA ignores or breaks the law (except the lawyers). My proportionate contribution to "sue myself" is a drop in the bucket compared to the personal cost of litigating with my HOA. I know you beat this drum constantly (suing yourself) but ignoring illegal behavior by a fiduciary is not something to be taken lightly and must be answered. It wasn't necessary for the HOA to provoke the lawsuit; this is a self-inflicted wound by a fearful group assured by lawyers that I would not have the guts to call them on their action which they knew from the start was wrong. Suing ones HOA (self) is just collateral damage. The slapdown hopefully sends a strong caution message to BOD and reminds ALL members to pay attention to the business and governance of their HOA. Biggest loser; the homeowners who don't get their money back; it is wasted and down the drain.
DonB11
(Florida)

Posts:4


04/11/2015 1:01 PM  
It would be interesting to know what the actual costs and attorney fees were assessed against the HOA by the court and how many units are in that community. We have only 80 here in mine and a similar situation which might not be worth the fight.
BruceS3
(Florida)

Posts:33


04/16/2015 8:47 AM  
This whole MRTA is confusing to say the least. My question is our HOA (Florida) is mandated by the St. Johns River Management and requires us to have a HOA to maintain the three retention ponds we own. It specifically states that the HOA cannot be disbanded. But from what I have read in this thread is homeowners automatically are released from the HOA 30 years after they buy their home. Is this right? How does this work if no one wants to rejoin the HOA and the state says you must have one?
DonB11
(Florida)

Posts:4


04/16/2015 11:21 AM  
From a reading of the Florida Statute, one of the exceptions is when a government agency has restrictions placed on the property. In that case the homeowners are not released from those restrictions even if the HOA no longer has jurisdiction through the Declarations of Covenants after the 30 years.
GenoS
(Florida)

Posts:2435


04/16/2015 2:11 PM  
The homeowners, as a whole, not being released from the restrictions is different than an outright prohibition on HOA dissolution. BruceS3, if I may ask, where is this HOA continuance mandate found from the SJWMD? My HOA is also in the SJWMD and we have a permit that we're required to renew every so often along with required maintenance and record-keeping. But I don't recall seeing anything like a mandate to maintain the HOA with the force of law behind it. It's very possible such a thing exists and I just haven't seen it yet, so was just wondering where I might start looking for such a thing.
GwenG
(Florida)

Posts:592


04/17/2015 10:28 AM  
@bruces3:

I also would be interested in the language you refer to which forbids "disbanding an HOA". I cannot think of a scenario where state agencies monitoring and licensing infrastructure (such as groundwater use, roads, stormwater etc) could forbid private citizens from entering into a new, revised or "no" contract (Covenant). Florida does transfer licenses and permits to the HOA after a Developler has built the infrastructure but I would question if that would carry a requirement to encumber every parcel with a mandatory HOA government contrary to MRTA.

State Water Management District

The developer of a community in Central Florida had to receive a permit for the infrastructure construction from South Florida Water Management District (SFWMD), St. Johns River Water Management District (SJRWMD) or the Southwest Florida Water Management District (SWFWMD). Each of these permits would need to be transferred into a management phase permit, upon construction completion. Additionally, this management-phase permit is to be transferred to the HOA.

The WMD permits come with Conditions of Approval. Often, there are on-going responsibilities that are outlined via these Conditions. The responsibilities that befall the HOA may well include wetland habitat monitoring and maintenance; aquatic plat preservation; periodic engineer inspections; and so forth.

As previously mentioned, there are exceptions to expiration by MRTA. Here are the exceptions to MRTA FS712.03:

712.03 Exceptions to marketability.—Such marketable record title shall not affect or extinguish the following rights:
(1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title; provided, however, that a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of subsection (5).
(2) Estates, interests, claims, or charges, or any covenant or restriction, preserved by the filing of a proper notice in accordance with the provisions hereof.
(3) Rights of any person in possession of the lands, so long as such person is in such possession.
(4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.
(5) Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof. No notice need be filed in order to preserve the lien of any mortgage or deed of trust or any supplement thereto encumbering any such recorded or unrecorded easements, or rights, interest, or servitude in the nature of easements, rights-of-way, and terminal facilities. However, nothing herein shall be construed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any greater rights than the rights of the mortgagor or grantor.
(6) Rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so assessed and which rights are preserved for a period of 3 years after the land is last assessed in such person’s name.
(7) State title to lands beneath navigable waters acquired by virtue of sovereignty.
(8) A restriction or covenant recorded pursuant to chapter 376 or chapter 403.
(9) Any right, title, or interest held by the Board of Trustees of the Internal Improvement Trust Fund, any water management district created under chapter 373, or the United States.
History.—s. 3, ch. 63-133; s. 12, ch. 65-420; s. 1, ch. 73-218; s. 1, ch. 78-288; s. 2, ch. 97-202; s. 17, ch. 2000-317; s. 1, ch. 2010-104.

It appears that the reference to St John's Water Management District (which is part of FL Dept Environmental Protection) would be included as an exception (#9). It seems reasonable that the continued obligation of the licensee would become the responsibility of the homeowners who are now members of the not-for-corporation under FS617. But, sure would like to see the language being referred to!

BruceS3
(Florida)

Posts:33


04/18/2015 7:46 AM  
My apologies. Apparently (well actually) I was wrong. I could not find in our documents nor the statutes of the restriction other than that the permit for the retention ponds would have to be transfer to an entity if the HOA was disbanded. I probably drew the conclusion we must have one based on that. Please forgive me. However the last point item # 9 that GwenG mentioned is what I needed to see in regards to us dealing with the MRTA. Again I apologize for talking without checking the facts.
GwenG
(Florida)

Posts:592


05/09/2015 4:34 AM  
Update:

Both cases settled and all costs and fees reimbursed to owners; checks in hand. Association spent nearly $70K in legal fees persecuting the owner who had the audacity to site a new doublewide with the porch on the front of their house. This was a county-permitted structure, but Association had a "rule"--NO COVENANT--authorizing architectural authority. Additionally, Owner's Covenant had expired on their parcel 3 years earlier. Association sued them anyway and case was dismissed and all costs and fees returned to owner--a humiliating defeat to the Board.

Board budgeted $50K in Legal Fees for next fiscal year.

The second lawsuit (mine) is scheduled for a hearing of Summary Judgement next Friday (15th) and will decide a CONTRACTUAL issue related to MRTA preservation and revitalization.
GwenG
(Florida)

Posts:592


05/18/2015 6:50 AM  
I posted this (with some redaction) on the community forum to update owners about the hearing:

The "Battle of the Barristers" has happened, at long last on May 15, 2015. Bottom line (for the bottom-line folks) is NO DECISION reached by the Judge. The Judge will be reviewing all Motions, cases and arguments and be writing a decision in the near future. Timeline uncertain.

The hearing itself was intense and fascinating. It was conducted in a sm all meeting room-no bottled water, coffee or donuts served. Defense counsel for HOA was XXXXXXXX Insurance company counsel (2 attorneys), one attorney from HOA General Counsel to observe only, HOA Board Director and my lawyer Fred O'Neal (Attny) and myself (Plaintiff) and Friend (observer).

In opening, it was agreed by both sides not to argue "issues of fact" and the only thing that would be addressed was the question: "Do original Covenants give the Association permission to amend the Covenants?"

So...HOA Defense says that the governing documents--collectively--gives Association authority to amend even though the Covenants do not specifically and independently specify an amendment procedure.

Plaintiff says that "amending" is not synonymous with "releasing" and in contractual contexts, "amending adds, increases or changes" a burden while "releasing lessens a burden". The Covenants specify a release clause only. Judge comments that one cannot "release AND substitute" without a specific provision giving that authority. Absent clear language to amend, the 100% approval threshold must be met under common law.

HOA Defense insists that this 100% threshhold is "overarching" and not required by other statutes for other types of governing documents such as Articles, Bylaws and Rules & Regs. HOA stated that even if the Judge decides that there is no amendatory provision in the original Covenants, that there "is other basis that allowed HOA to proceed as they did". HOA Defense then argued against Plaintiff's related case law citations, citing details of the content of amendments which supposedly limited their applicability to the issue. HOA Defense also referenced the condo law (which HOA is not), the not-for-profit corporate law FS617 (which did not address homeowner associations' Covenants with any specificity in 1972) and FS 720 which was not even a statute until 2000. These were referred to as alternative arguments.

Plaintiff rebutted that all that was "interesting but irrelevant--the documents are separate fish". The Covenants are a contract between the homeowner and the Association and the Articles and Bylaws are just corporate documents and the same standard does not apply.

HOA Defense continued to argue against the "100% approval" requirement for amending the Covenants (in the absence of an amendatory provision in the Covenant) by pointing to condo law under FS718 (referred to as an "analagous authority" argument) and another case law which, on further reading, actually supported Plaintiff's assertion of the necessity of unanimous approval of all owners in exceptional situations.

HOA Defense then argued that it was the Successor to the Developer and it was pointed out by Plaintiff that "if HOA wants to be afforded the benefits of being a successor it must also assume responsibility for a poorly-written set of documents". The Judge asked "Should the homeowner take responsibility for sloppy drafting?" HOA accepted that it must then take responsibility for vague and ambiguous language drafted by the Developer in 1972 under a "rule of construction" i.e. if something is vague or uncertain, then bias must go against the drafter of the language and in favor of the homeowner.

Judge asked "What does the Association presently rely on?" HOA Defense states "It has been acting 'as if' the Amendments were valid and that implicit in 'release' is 'amendment'. Judge referred to this as "bootstrapping" (Pulling oneself up by one's own bootstraps e.g. amending "after the fact").

Plaintiff final remarks: there are pertinent Rules of Construction (of contracts/covenants):

1...the expression of one thing means the exclusion of all other things, means that whatever is omitted is understood to be excluded. The maxim is based on the rationale that if the writer/creator had intended to accommodate a particular remedy or allowance, it would have done so expressly;

2....Rule of Strict Construction: If the contract contains ambiguous terms, they are strictly construed against the party who drafted the contract.

3....Rules about construction of Restrictive Covenants: Restrictive covenants are subject to the general rules of contract construction. A restrictive covenant's words cannot be enlarged, extended, stretched, or changed by construction. All doubts concerning a restrictive covenant's terms are resolved in favor of the free and unrestricted use of the land, and any ambiguity must be strictly construed against the party seeking to enforce the covenant.

I have omitted a lot of discussion of case citations; these discuss similarities and dissimilarities to the present case and comprise "legal fine print" in support of arguments. All of the issues discussed were written in the individual attorney Motions for Summary Judgement. It was a new perspective to see and hear these arguments expanded in the hearing setting followed by controlled arguments and rebuttals to each point in the Motion.

I will update again as soon as the Judge rules.



TimB4
(Virginia)

Posts:15999


05/18/2015 12:32 PM  
Gwen,

Thanks for the update.
GenoS
(Florida)

Posts:2435


05/18/2015 12:52 PM  
Congratulations on your first win and I'm keeping my fingers crossed that the judge will see things your way in the second.

Thank you for keeping everyone posted on your progress. What you've gone through is going to make a great case study on how homeowner/HOA disputes ultimately get resolved in the real world when friendly negotiation and mediation fail and other legal remedies are sought. I think a lot of it is pertinent to non-MRTA disputes as well. Thanks again, Gwen!

Oh, and it sounds like the Rules of Construction are what's behind a lot of general legalese and fine print you see these days (gotta spell it all out)
KevinK7
(Florida)

Posts:1342


05/18/2015 6:15 PM  
I am very interested in this case. I of course have my own MRTA issues and my neighborhood recently decided to revive their enforcement of expired covenants (probably because they got a new property manager). This all occurring years after they were notified of the expiration and they chose to do nothing.

These MRTA cases are important because this statute is very much abused and homeowners need all the help they can get.

I do love how HOAS defense on the matter always drift to things that make no sense (unrelated statutes) or just having the Tinkerbell defense (believing in bring legitimate and so it must be so).
GwenG
(Florida)

Posts:592


05/26/2015 8:40 PM  
The lower court Judge ruled against my Motion for Summary Judgement. Despite my strong arguments, the inexplicable decision to Deny was rendered. There was no opinion offered--just a simple Deny. This leaves me with a feeling of "Incompleteness" but my right to appeal was waived as a condition of mediation. Unfortunately, it is possible that the issue will come up again at some point in the future and that is probably the worst part of the decision; i.e. it left the door open for another legal challenge in the future.

This is a wrap for this phase; there is more ahead before the Covenants expiration dust is settled. This decision simply permits challenged amendments to be included in the revitalization package-which had been suspended pending this decision.
KevinK7
(Florida)

Posts:1342


05/27/2015 7:29 AM  
Posted By GwenG on 05/26/2015 8:40 PM
The lower court Judge ruled against my Motion for Summary Judgement. Despite my strong arguments, the inexplicable decision to Deny was rendered. There was no opinion offered--just a simple Deny. This leaves me with a feeling of "Incompleteness" but my right to appeal was waived as a condition of mediation. Unfortunately, it is possible that the issue will come up again at some point in the future and that is probably the worst part of the decision; i.e. it left the door open for another legal challenge in the future.

This is a wrap for this phase; there is more ahead before the Covenants expiration dust is settled. This decision simply permits challenged amendments to be included in the revitalization package-which had been suspended pending this decision.




I find it really annoying when no reasoning is given. Sounds like they just decided to kick the can down the road.

I still wonder that in a situation where the covenants and restrictions are expired , in the absence could a property owner draft their own covenants that would supercede any revitalized documents. For instance, in my neighborhood there were the original 1979 covenants that my title reference and that have expired. The HOA tried to preserve their later 1982 covenants and the later amendmentS believing those take precedence over the original ones. So what is stopping me making new covenants that would run with the land for 30 years in the absence of preserved covenants?
BobD4
(up north)

Posts:904


05/27/2015 8:24 AM  
Posted By GwenG on 05/26/2015 8:40 PM
The lower court Judge ruled against my Motion for Summary Judgement. Despite my strong arguments, the inexplicable decision to Deny was rendered. There was no opinion offered--just a simple Deny. This leaves me with a feeling of "Incompleteness" but my right to appeal was waived as a condition of mediation. Unfortunately, it is possible that the issue will come up again at some point in the future and that is probably the worst part of the decision; i.e. it left the door open for another legal challenge in the future.

This is a wrap for this phase; there is more ahead before the Covenants expiration dust is settled. This decision simply permits challenged amendments to be included in the revitalization package-which had been suspended pending this decision.




If what just occurred was NOT a genuine mediation but instead an adjudicated adversarial scenario before a judge rendering a binding decision / arbitrating (with or without certain types of appeal from the arbitration possible) , THEN has the decision been merely

- to merely deny an upfront slam-dunk against the HOA as you apparently sought, ie to merely rule that the issue cannot be summarily decided upfront and that the judicial / arbitral process must continue as if a conventional Trial without relying merely on counsel arguments / affidavits etc ? ie that some sort of further Hearing activity can continue ?


or -

that you have made an Application/ Motion but that such is TOTALLY dismissed, without any further more conventional adjudicative/arbitrative interactions ?
JeffT2
(Iowa)

Posts:400


05/29/2015 11:01 AM  
You lost a summary judgment, not the whole case. Why don't you proceed with the trial (which would not be an appeal, just the regular trial)?
GwenG
(Florida)

Posts:592


05/29/2015 11:37 AM  
@JeffT2-the remainder of the case was settled at mediation and I prevailed and got all my attorney expenses returned. The HOA is attempting revitalization. This was the only remaining issue in dispute.
GwenG
(Florida)

Posts:592


07/05/2015 3:48 AM  
Update: Not a peep from BOD about resuming revitalization...they are too busy trying to enforce nonexistent rules. (Last Gasp?) They stole my and 12 others' real estate signs from our private properties. Police summoned for trespass and theft report. Signs returned. One owner padlocked his sign to a tree. I put up a No Trespassing sign. Nice look "for the good of the community" BOD!

Hopefully, lesson learned.
GenoS
(Florida)

Posts:2435


07/05/2015 6:33 PM  
Dang. If you wanted to be evil (and I know you don't) there's nothing in FS 720.403 through 407 that says the board must undertake revitalization. ANY committee of 3 parcel owners can undertake to revitalize. Eventually you'll need a majority of parcel owners to vote for the revitalization, but you can cherry-pick the parcels you want to have in the revitalized HOA. The number can be less than the original number of parcels governed under the original covenants. The revitalized CCRs can't be more restrictive than the original ones, but there's nothing preventing them from being LESS restrictive.

Perhaps a competing revitalization campaign will get them off their lazy posteriors.
SusanE6
(Florida)

Posts:102


07/06/2015 7:12 AM  
To: Gwen, Kevin, Chris and Geno - you have helped me so much with MRTA. I could not have moved forward in my Association without you. To me - truth always prevails and no matter how long it takes, it is well worth it. I have my friends looking at your blogs too now and it has made it possible to understand MRTA so much more. It is sad that HOA attorneys state they know the law when they just tell the Board what they like to hear.
My Board has now preserved the covenants - they have relied on an attorney that has 18 years of HOA law under his belt. He has done it improperly.
What would it take for an attorney to look into MRTA and make sure he is efficient at the law? If he represents HOAs, he should know the law. How sad it is to waste homeowners money and not know what you are doing.
Thanks again and I look forward to making sure homeowners are aware of MRTA and its consequences. What a great blog.......
JohnC46
(South Carolina)

Posts:7772


07/06/2015 10:26 AM  
Suan

All attorneys that I disagree with have done it wrong.....LOL
SusanE6
(Florida)

Posts:102


07/06/2015 6:09 PM  
I have seen a lot of action from the Boards over the past 30 years, John, and they always seem to pick an attorney that is local, a friend,a homeowner, or someone who is not familiar with a certain part of the law. I was sued by the Board in 1986 and they picked an attorney that had no idea what he was doing but did cost the Association over $18,000. The attorney when he lost the case, took it to the appellate level. He should have never done that as it was a definite loss for them in legal terms. He lost again. Just because an attorney tells you he is experienced in HOA law - one must research his cases and find out what he actually has specialized in.
With MRTA, you want to find someone who actually knows what MRTA is and how it is applied to the HOA. When I was a member of the Board, I researched for attorneys that specialized in MRTA - found two in a large city nearby but the Board thought they were too expensive. I always found using attorneys outside of the small town I lived in was much better for the Association. Everyone knows everyone in the small town setting.

Oh, well, onward I go to truth and what is right. Today it seems no one cares about truth - just do it as quick as one can and get it over with. And make sure it is cheap.


SusanE6
(Florida)

Posts:102


07/06/2015 6:30 PM  
Questions?

1) When the Association preserves the documents, do they have to list each lot, name and phase in the preservation?
2)When preserving the docs - do the amended docs as well as the original have to be specifically mentioned in the preservation? The attorney who did our preservation only mentioned the original docs specifically and put copies of the amended docs as an exhibit. No written description of the amended docs.
3) I have read in many recent descriptions of the method of preservation, that it needs to be published in the newspaper for two consecutive weeks. Is this no longer applicable and where do I find the amended law for this?
4) Can a homeowner ask the Board for references for the attorney they chose - like how many MRTA cases he has represented or how many preservations/revitalizations he has represented?
5)I've asked this question over and over again but I just need to ask again - if the root title mentions the book # and page # and is over 30 years old, is it not extinguished by MRTA? My President of the HOA states because the root title contains the book and page #, it is not extinguished by MRTA even though it was written in 1983 and 1984. All the titles following the root title do not have the language in them but the Association lawyer states they are not affected by MRTA. The three titles the attorney claims that are extinguished by MRTA, he did not revitalize? Also, I found 16 other titles that were exactly the same as the three he states are extinguished. Confusing to say the least.
6) So, if the attorney preserves improperly, can he be held responsible for doing this improperly?
7) A few years ago, the Board was redoing the covenants. The attorney at that time saw the date on the docs -1983(original), 1991(amended), and 2006(amended) and never even mentioned MRTA. When we found out about MRTA in November of 2014, we questioned him and he stated that because we had amended docs in 2006, we were free of MRTA. What would his liability be with those false remarks? We could have preserved them three years ago.

Thanks to all that help me answer these.
GenoS
(Florida)

Posts:2435


07/06/2015 8:29 PM  
I'll take a stab at it, but please remember I am not an attorney and this is not legal advice, only my understanding, which may not be 100% correct.

1. Yes, all affected parcels must be listed.
2. All documents and amendments have to be included, but having them listed in Exhibits to the main filing may be OK (that's how ours was done).
3. I have not seen anything that requires publication in a newspaper. FS 720 is the last word on this, see "Part III - Covenant Revitalization". At this link, click "View Entire Chapter" near the top to see the whole thing. The last 5 sections are FS 720.403-720.407. http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html
4. Probably not. A board will usually undertake "preservation" before any of the covenants expire on any of the parcels (ours was done 6 years prior to that happening). But once the covenants have started to expire, then a "revitalization" is necessary and any 3 parcel owners can begin the process. The "board" has no special power or status in this regard. They may say they're the only ones who can do it, but they would be wrong. For a "preservation" where nothing has expired yet, yes, the board has to do it. For a "revitalization" after covenants have started to be extinguished? No. In the eyes of the state they would be treated the same as any other organizing committee when it comes to revitalization. Remember, if covenants have started to expire then the board doesn't legally have any power over the expired parcels. When covenants are extinguished the contract has ceased to exist.
5. This can be complicated and I don't have the energy this evening to re-hash it all. An internet search will turn up a lot of information. There are posters here who have been involved with MRTA cases, maybe some of them will chime in. One of the big problems is that there simply aren't a lot of attorneys who are well versed in MRTA issues and HOAs. There's not a lot of money in it, basically. If I was an attorney I probably wouldn't choose to specialize in HOA-MRTA issues.
6. Maybe. Probably not. Again, there are no HOA police and there certainly aren't any lawyer police who will punish an attorney for screwing up in an area of law few understand to begin with.
7. Passing amendments to the covenants do not reset the 30-year clock on MRTA. I know that for a fact, but I don't have the citation to the case in Florida that I know of handy. As for the liability of an attorney who misstates the law? Good luck with that. You could sue for malpractice if he was your lawyer. But see #6 for the liklihood that you're going to find other lawyers and judges willing to impose penalties on their "partners in crime". If a lawyer steals money from his clients, the odds are good he will face punishment. Anything less than that is a crapshoot.
SusanE6
(Florida)

Posts:102


07/07/2015 6:34 AM  
Thanks, Geno - I appreciate your answers and I am convinced they preserved incorrectly. Instead of revitalizing the extinguished deeds, they went around and had the homeowners that were extinguished sign a paper allowing them back into the association. This attorney may have HOA savvy but he surely lacks in MRTA knowledge. Why have a law for MRTA if the attorneys don't know how to cover it? And there are other extinguished titles that they didn't address.
I have researched until I am weary and every place I look has different answers. I have looked over all these blogs hundreds of times tring to make sense of it all. What I truly appreciate is that by going over all this material, we are helping someone else understand MRTA.

Thanks, again.
KevinK7
(Florida)

Posts:1342


07/07/2015 11:53 PM  
Posted By SusanE6 on 07/07/2015 6:34 AM
Thanks, Geno - I appreciate your answers and I am convinced they preserved incorrectly. Instead of revitalizing the extinguished deeds, they went around and had the homeowners that were extinguished sign a paper allowing them back into the association. This attorney may have HOA savvy but he surely lacks in MRTA knowledge. Why have a law for MRTA if the attorneys don't know how to cover it? And there are other extinguished titles that they didn't address.
I have researched until I am weary and every place I look has different answers. I have looked over all these blogs hundreds of times tring to make sense of it all. What I truly appreciate is that by going over all this material, we are helping someone else understand MRTA.

Thanks, again.



When you have a set of laws but nobody to enforce them you will have a group of people take advatage of the situation. Here you have associations, property managers, and Lawyers pto fit from poor enforcement and each has more resources than an individual homeowner.

When I first got involved with my neighborhood I started by asking a simple question. When told we were now mandatory and required to pay I requested a vote tally. What I got was the president telling me to go find the information myself and their lawyer threatening legal action if I didn't comply. That is what led me to research not just their "vote" but the law instead. They knew what they were doing. My neighbors paid and didn't want to question the board for fear of being sued.
SusanE6
(Florida)

Posts:102


07/08/2015 5:24 AM  
How very sad......Lawyers and HOAs - not a very good mix. If more homeowners banded together and insisted that the law be enforced - things might change. Isn't there a better result if people realize that there is strength in numbers? It makes me very sad that in our community, there is a group of people called the Board, that run a business and follow no laws.....
GwenG
(Florida)

Posts:592


07/08/2015 6:24 AM  
Posted By SusanE6 on 07/06/2015 6:30 PM
Questions?

1) When the Association preserves the documents, do they have to list each lot, name and phase in the preservation?

The phases, if you mean the individual subdivisions within a multi-phased development, must be accurately identified on a Preservation as well as a Revitalization. My Association's attorney DID THIS WRONG on the Revitalization Consent/Ballot; the voting form correctly identified each parcel but incorporated by reference all three phases/units in the subdivision. This was pointed out to them-in writing--by a homeowner before the documents were distributed--but they ignored the homeowner. Later, it was brought up again within a legal proceeding and they were forced to admit the Consent/Ballot was legally flawed. Presumably, it would be discovered by the FL Dept of Economic Opportunity and the Consent/Ballot would be voided and the Revitalization Package returned to the HOA for a do-over. Thousands of dollars spent and wasted on stupid attorney. Stupid board took Management Company's recommendation and failed to vet the attorney for MRTA expertise. Board stupidly did not seek a second opinion when first stupid attorney warned them they were operating in a "gray" area.

One parcel cannot lawfully vote to encumber property interests in another parcel's unit. This concept does not require legal training. However, legislators are not known for common sense or rigorous intellectual scrutiny when they allow special interests to write their own law and seek sponsorship of a bill. Indeed, there may be a constitutional challenge one day as to the right of 51% of parcels in a phase/unit to encumber 100% of parcels in that unit with use restrictions.


2)When preserving the docs - do the amended docs as well as the original have to be specifically mentioned in the preservation? The attorney who did our preservation only mentioned the original docs specifically and put copies of the amended docs as an exhibit. No written description of the amended docs.

When the Covenants "die"-all amendments to Covenants and Rules/Regs automatically "die" with them. The corporate documents do not technically die, but they functionally expire because they derive their authority from the Covenants. Corporate documents ie Articles of Incorporation and Bylaws should also be included in the Revitalization package and should be treated as dead for revitalization. In my opinion, it should also be in a Preservation but that is just my non-legal opinion. Therefore, everything that the HOA wishes to be revitalized must be disclosed in the Revitalization package given to owners before they Consent to the new encumbrance. For any future amendments to documents, the Amendments must be specifically disclosed ON THE DEED itself, because Amendments are an internal HOA document and do not attach to the land unless specifically referenced on a Deed. I have seen only one deed that did this in the 200+ title searches I have done. 99.9% of deeds contain only the general "subject to restrictions, if any" clause.

There was an interesting/disturbing case that may have implications in the future regarding non-specific references:
http://rpptl.org/index.php?option=com_easyblog&view=entry&id=100&Itemid=247

3) I have read in many recent descriptions of the method of preservation, that it needs to be published in the newspaper for two consecutive weeks. Is this no longer applicable and where do I find the amended law for this?

NO this was changed a couple years ago.

4) Can a homeowner ask the Board for references for the attorney they chose - like how many MRTA cases he has represented or how many preservations/revitalizations he has represented?

Homeowners can ask the Board anything. It is always a good idea to "ask" in the form of written correspondence to the Board. This becomes part of HOA Official Records. The "ask" should be certified RRR. It places the board on legal notice and they must act according to the standards of fiduciary duty.


5)I've asked this question over and over again but I just need to ask again - if the root title mentions the book # and page # and is over 30 years old, is it not extinguished by MRTA? My President of the HOA states because the root title contains the book and page #, it is not extinguished by MRTA even though it was written in 1983 and 1984. All the titles following the root title do not have the language in them but the Association lawyer states they are not affected by MRTA. The three titles the attorney claims that are extinguished by MRTA, he did not revitalize? Also, I found 16 other titles that were exactly the same as the three he states are extinguished. Confusing to say the least.

The million dollar question. In most instances the answer is YES because arithmetic is a very simple method of making a yes, no or maybe determination. Your Association President does not comprehend MRTA. The attorney is a dolt for admitting that titles are extinguished and not revitalizing them.

6) So, if the attorney preserves improperly, can he be held responsible for doing this improperly?

Sure. Bring a sack of money and be prepared for a rough ride.

7) A few years ago, the Board was redoing the covenants. The attorney at that time saw the date on the docs -1983(original), 1991(amended), and 2006(amended) and never even mentioned MRTA. When we found out about MRTA in November of 2014, we questioned him and he stated that because we had amended docs in 2006, we were free of MRTA. What would his liability be with those false remarks? We could have preserved them three years ago.

Amendments do not "run with the land". They cannot "stand alone". This was established years ago in Florida i.e. Matissek v Waller:
http://www.floridacondohoalawblog.com/2011/02/articles/covenant-enforcementviolations/arbitration-court-rulings/mrta-recorded-amendments-didnt-make-a-difference/

Thanks to all that help me answer these.



SusanE6
(Florida)

Posts:102


07/08/2015 4:47 PM  
So, the bottom line is:

1) If the title is extinguished, it needs to be revitalized? It can not just be mentioned and the homeowner signed back into the association?
2) If the covenants go to revitalization, and the count has to be 50 plus one, does that mean all titles are back in the association? All the titles are revitalized?
3) What about if your property is homesteaded and they revitalize?


The reason I ask all of these is so if someone else comes along and feels their property is affected by MRTA, they can look to this blog. It sure has helped me.

I would like to see HOAs be more responsible to their homeowners. This is terrible what they put people through and continue to do so. There has to be something that can be done. It is shameful.
SusanE6
(Florida)

Posts:102


07/08/2015 4:48 PM  
And many thanks to you, Gwen, for your answers to my multiple questions. It is nice to find someone with knowledge of the toopic and answers to questions.
SusanE6
(Florida)

Posts:102


08/15/2015 10:24 AM  
I am back. My Board had preserved all but three of the 76 titles in my subdivision due to MRTA. They excluded 16 other titles including mine. The President stated my title was not extinguished even though it was over 30 years old. His reasoning was that it contained the language of the covenants on the root title and thus was not subject to MRTA. This was from the Association attorney with 18 years of HOA law under his belt. I sent a letter to all the homeowners explaining that I was extinguished and I was improperly preserved. Only heard back from two homeowners - one wanted my attorneys # and the other did not want me sending any more emails to him.
Today I received a letter from the Board President that they did preserve my title improperly. The Board just spent over $4200 of homeowners money to an attorney that did not know MRTA law. They sent me a form asking me to come back to the Association.
Sent all of this to my attorney who was instrumental in making sure this was done right. Without the comments of Gwen, Kevin and Geno, I would not have been able to move forward with this very important topic.
More later when I hear from my attorney. I would prefer personally not to rejoin this band of ignorant Board members and the apathetic group called homeowners. But I will wait and see what my attorney states.
TimB4
(Virginia)

Posts:15999


08/15/2015 10:40 AM  
Susan,

Thanks for the update.

If you don't want to rejoin, then don't.

The only issue will be if the roads are private, you may need to contribute to the roads but not be bound by anything else.

It could be a great selling point - home in an HOA community that is not bound to the HOA rules/regs or fees. Of course, you also don't get to use the amenities.
GenoS
(Florida)

Posts:2435


08/15/2015 12:35 PM  
Many thanks for the update, Susan. MRTA is simple in theory, but the number of attorneys in FL who don't understand it and pretend otherwise (and collect handsome fees for their expertise) is shockingly high. So very glad you found a good lawyer to help you.

As Tim said, consider your options carefully. There are advantages to being in an HOA and if the property is surrounded by roads maintained by the HOA then resale value could be affected. Maybe, nothing is certain. There may be other factors involved, such as subjecting yourself to the judgments and behaviors of a bozo board. Choose wisely and good luck.
GwenG
(Florida)

Posts:592


08/15/2015 5:50 PM  
Thank you Susan for letting me read the "form" given to homeowners to "rejoin" the association. Although the 4-page form seemed to be complete (in my non-lawyer opinion), there are serious concerns with the Association's attorney presenting a homeowner with a suggestion that they might no longer enjoy the amenities of the HOA unless they sign the form. It is inappropriate to approach an individual homeowner in this manner with a thinly-veiled threat that they must sign--or lose use of the amenities. The HOA attorney represents the Association--not the homeowner--and, though they did not hide the client relationship, they did not specifically disclose the obvious conflict of interest to the homeowner. Homeowners might feel intimidated and coerced by such an approach and I bet the "agreement" would be vacated if legally challenged by the homeowner.

Susan: Separately, you previously posted a question which I addressed below:

"The phases, if you mean the individual subdivisions within a multi-phased development, must be accurately identified on a Preservation as well as a Revitalization. My Association's attorney DID THIS WRONG on the Revitalization Consent/Ballot; the voting form correctly identified each parcel but incorporated by reference all three phases/units in the subdivision. This was pointed out to them-in writing--by a homeowner before the documents were distributed--but they ignored the homeowner. Later, it was brought up again within a legal proceeding and they were forced to admit the Consent/Ballot was legally flawed. Presumably, it would be discovered by the FL Dept of Economic Opportunity and the Consent/Ballot would be voided and the Revitalization Package returned to the HOA for a do-over. Thousands of dollars spent and wasted on stupid attorney. Stupid board took Management Company's recommendation and failed to vet the attorney for MRTA expertise. Board stupidly did not seek a second opinion when first stupid attorney warned them they were operating in a "gray" area."

I recently spent some time talking in detail with the DEO. Frankly, I was shocked at what appears to be cursory treatment of revitalization submissions. I said above that "presumably" a mistake on the Consent/Ballot form would be discovered early in the DEO review process. THIS IS NOT TRUE. I was informed that the DEO does not require the Ballot/Consent form for its review; it only needs an affidavit from the submitter (Corp President, Organizing Committee or Attorney) that everything was done correctly per documents. That affidavit would pass the review along without scrutiny of the underlying Ballot/Consent Form.

In my Corporation, the Ballot/Consent was prepared incorrectly by the HOA Attorney, and it was agreed as a condition of mediating the lawsuit that those incorrect forms would be re-done and new Ballot/Consents would be distributed to the entire membership for consideration. Five months have gone by and revitalization has not been mentioned by the Organizing Committee; it has been oddly silent on the status of the attempted revitalization. (That silence is what prompted my conversation with the DEO--to better understand the details of the process and the statutory notice periods and communication channels).

Imagine my surprise when I learned that the DEO, by accepting an Affidavit, would not catch the error --an error which was discovered by a non-lawyer homeowner before the form was distributed and who alerted the Attorney prior to distribution. The board sent it out anyway to almost 800 members. It can only be challenged as an "after the fact" decision by DEO and it has to be challenged in a separate statutory Administrative Dispute procedure--not with the DEO.

Here is another concern; Per FS720.400 the passage or denial of the revitalization "must be communicated immediately to the Membership", but the statute does not define "immediate" nor does it describe how the communication is to be made. The homeowners only have 21 days after the passage or denial to challenge a DEO decision.

In the meantime, the Board continues to assert use restrictions on expired Member parcels and provoke legal involvement, seemingly orchestrated by the Attorney who has nothing to lose and everything to gain.


TimB4
(Virginia)

Posts:15999


08/15/2015 5:56 PM  
Posted By GwenG on 08/15/2015 5:50 PM
Thank you Susan for letting me read the "form" given to homeowners to "rejoin" the association. Although the 4-page form seemed to be complete (in my non-lawyer opinion), there are serious concerns with the Association's attorney presenting a homeowner with a suggestion that they might no longer enjoy the amenities of the HOA unless they sign the form. It is inappropriate to approach an individual homeowner in this manner with a thinly-veiled threat that they must sign--or lose use of the amenities.




Granted, I haven't seen the form, and I am certainly no expert on MRTA.

However, pointing out that amenities of the Association are only for the members of the Association would, in my opinion, be appropriate.

An argument can certainly be made on how the wording should or shouldn't be that points this fact out. However, I do believe it should be pointed out. This way, if someone doesn't want to join the Association and tries to use the amenities, the Board can at least say that this was explained to you in that letter.
GwenG
(Florida)

Posts:592


08/16/2015 5:52 AM  
In the case of my corporation, which owns the water and sewer plant, the "threat" might include NO water, NO sewer. It could also include No Roads, since our roads are owned by the association. It could also include 'NO garbage collection, NO access through entry gate'. It is very threatening to associate these essential services with mandatory HOA membership. Even though they are empty threats, they might be sufficient to control the choices of the vulnerable elderly population in a retirement community.

The Board already published false material with dire statements of certain doom in an attempt to create fear and force a YES to consent to revitalization.

My lawyer has advised that non-members have a legal obligation to pay their fair share of the amenities consumed and the HOA would have to apportion the contribution of the non-member to reflect this, but I feel certain this would not be mentioned in a Consent Letter as an option to mandatory membership.

This will likely happen in my community in the near future as 28% of the owners (at least on the first count which must now be re-done) do not consent to revitalization--which will result in two classes of membership.
TimB4
(Virginia)

Posts:15999


08/16/2015 7:24 AM  

Posted By GwenG on 08/16/2015 5:52 AM

Even though they are empty threats, they might be sufficient to control the choices of the vulnerable elderly population in a retirement community.




Yep. That is sometimes what attorneys do. They bluff (along with deny, delay and defend).

This is why it's important for individuals to educate themselves and when in doubt consult with someone else.


KevinK7
(Florida)

Posts:1342


08/16/2015 7:24 PM  
Posted By GwenG on 08/16/2015 5:52 AM
In the case of my corporation, which owns the water and sewer plant, the "threat" might include NO water, NO sewer. It could also include No Roads, since our roads are owned by the association. It could also include 'NO garbage collection, NO access through entry gate'. It is very threatening to associate these essential services with mandatory HOA membership. Even though they are empty threats, they might be sufficient to control the choices of the vulnerable elderly population in a retirement community.

The Board already published false material with dire statements of certain doom in an attempt to create fear and force a YES to consent to revitalization.

My lawyer has advised that non-members have a legal obligation to pay their fair share of the amenities consumed and the HOA would have to apportion the contribution of the non-member to reflect this, but I feel certain this would not be mentioned in a Consent Letter as an option to mandatory membership.

This will likely happen in my community in the near future as 28% of the owners (at least on the first count which must now be re-done) do not consent to revitalization--which will result in two classes of membership.


My neighborhood was a former retirement community. When the HOA amended their covenants 15 years ago to make mandatory membership should you join, many of my neighbors didn't understand the implications. All they knew was that they paid before and planned on paying but we're confused when they were sent notices when they chose not to pay for a month (whether they were snowbirds or upset with service).

My other neighborhood sent out joiner and consent forms and had volunteers tell homeowners it was "only $100 per year" despite that being nowhere in the form and the tip of the iceberg. Their expanded documents permitted the HOA to make home modifications without approval, assessments of any amount at anytime with no vote, as well as other extremely restrictive covenants. When questioned they lied or threatened a lawsuit if challenged.

I have yet to hear of a properly preserved document...
JohnC46
(South Carolina)

Posts:7772


08/17/2015 6:20 AM  
Poor Kevin got sucked in several times and for some reason I think he will get sucked in again and of course it will never be his fault.

Fool me once, shame on you. Fool me twice, shame on me.
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