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Subject: FL Covenant Expiration MRTA
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KevinK7
(Florida)

Posts:1342


08/17/2015 3:03 PM  
Posted By JohnC46 on 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.


Not sure what you mean by your comment.
KevinK7
(Florida)

Posts:1342


08/17/2015 3:08 PM  
Posted By JohnC46 on 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.


Not sure what you mean by your comment. If you are implying I bought into restrictive HOAS not once, but twice, and decided to not take responsibility for my actions while under covenants.

I acquired my properties when my parents passed away BUT the properties were purchased specifically because there was no mandatory HOA. They decided to rewrite the rules improperly later on.
SusanE6
(Florida)

Posts:102


08/22/2015 9:36 PM  
Back once again and appreciate all the comments that are useful to the discussion. I am very grateful to Gwen, Kevin and Geno for their replies. John46 - I have no idea why you say some of the things you do and they are absolutely no help with the MRTA discussion. Sadly, being involved with a group of people called the Board who is elected to protect the interests of the homeowner and finding them to be self serving, cheap , unlawful individuals - it is hard to fathom. This is their neighborhood and yet they are cloaked in secrecy and do not keep the homeowners updated. The homeowners are apathetic, listen to what the Board feeds them and thinks that anyone that is trying to be honest and sincere - those are the ones they go after.
My attorney has just written a letter to the HOA attorney that we do not wish to be a part of the Association and yes, they mistakenly preserved our extinguished docs and deed. And to our amazement, they admitted they did so. At a Board meeting on Monday night, the Board showed homeowners in the audience how they missed certain titles but would have those homeowners sign an affidavit that allowed them back into the Association. We were offered the same. But we feel with 19 homes that were extinguished , they needed to revitalize the titles - they say no, they will have the affected homeowners sign an affidavit.
The Board is recklessly spending money, has a homeowner now doing our taxes and review, the new Treasurer is poorly educated to her role(just removed $7000 from or reserves with out any ones approval - this was to pay bills), they are not following the budget, they are once again using volunteers to do work that should require a licensed, insured vendor and the most important item on the agenda was a block party they are throwing for the community. Because I was the past Treasurer, they are now implying I did the taxes wrong and we owe the IRS money. I was the first Treasurer to utilize an accountant to do our taxes and review. Because we were nonprofit, there were no taxes to pay but they are telling homeowners that I did things wrong. As the Treasurer, I took the Association from bankruptcy to having a healthy reserve. But no where is that mentioned.

Because of this reckless Board, I want out and will continue my fight to be a sovereign home. I use none of the amenities except for cable and even with that I am willing to pay my own way. It will be interesting when they find out I am putting my assessment in escrow. What will they do? Already they have changed the meeting announcement to" only association members allowed to attend". I guess they are excluding me from the Association.

Thanks for all the comments and I will keep you updated.
SusanE6
(Florida)

Posts:102


08/22/2015 9:54 PM  
Also, thank you Tim - your words have helped a lot. This has been a very stressful experience but I will not give up until it is done correctly.I do appreciate your comments and they have been a big help.
KevinK7
(Florida)

Posts:1342


08/23/2015 3:25 AM  
Posted By SusanE6 on 08/22/2015 9:36 PM
Back once again and appreciate all the comments that are useful to the discussion. I am very grateful to Gwen, Kevin and Geno for their replies. John46 - I have no idea why you say some of the things you do and they are absolutely no help with the MRTA discussion. Sadly, being involved with a group of people called the Board who is elected to protect the interests of the homeowner and finding them to be self serving, cheap , unlawful individuals - it is hard to fathom. This is their neighborhood and yet they are cloaked in secrecy and do not keep the homeowners updated. The homeowners are apathetic, listen to what the Board feeds them and thinks that anyone that is trying to be honest and sincere - those are the ones they go after.
My attorney has just written a letter to the HOA attorney that we do not wish to be a part of the Association and yes, they mistakenly preserved our extinguished docs and deed. And to our amazement, they admitted they did so. At a Board meeting on Monday night, the Board showed homeowners in the audience how they missed certain titles but would have those homeowners sign an affidavit that allowed them back into the Association. We were offered the same. But we feel with 19 homes that were extinguished , they needed to revitalize the titles - they say no, they will have the affected homeowners sign an affidavit.
The Board is recklessly spending money, has a homeowner now doing our taxes and review, the new Treasurer is poorly educated to her role(just removed $7000 from or reserves with out any ones approval - this was to pay bills), they are not following the budget, they are once again using volunteers to do work that should require a licensed, insured vendor and the most important item on the agenda was a block party they are throwing for the community. Because I was the past Treasurer, they are now implying I did the taxes wrong and we owe the IRS money. I was the first Treasurer to utilize an accountant to do our taxes and review. Because we were nonprofit, there were no taxes to pay but they are telling homeowners that I did things wrong. As the Treasurer, I took the Association from bankruptcy to having a healthy reserve. But no where is that mentioned.

Because of this reckless Board, I want out and will continue my fight to be a sovereign home. I use none of the amenities except for cable and even with that I am willing to pay my own way. It will be interesting when they find out I am putting my assessment in escrow. What will they do? Already they have changed the meeting announcement to" only association members allowed to attend". I guess they are excluding me from the Association.

Thanks for all the comments and I will keep you updated.


You are lucky to be out. I would agree that an affidavit is probably not enough. I remember my one neighborhood filed new covenants (that incorrectly asserted they amended the documents of every lot in not only their neighborhood but the 10 other surrounding neighborhoods) and basically kept refilling that when they got 50%+1 homeowners from each section to sign. The way they attempted preservation put a lot of people in danger because on paper it appeared a bunch of homeowners took it upon themselves to impose covenants on everyone else (which is why the lawsuit that bankrupted the HOA was also against 50 other homeowners individually)

I thought it was weird with my other HOA decided preservation started with the 1982 c&rs - not the 1979 c&rs. They then filed along with that preservation the several amendments that were made afterwards that had no mention in any document other than the amendment itaelf. One was even thrown out by a judge but they preserved that. Granted they did preserve the c&r that repealed it but still.

And that is the tip. After the 1979 c&C&Rs it looked like 50% of the homeowners filed a document in 1982 saying they were essentially dissolving the old covenants for new ones. Then those same homeowners filed new ones that meant to impose on everyone! Then 20 years after that some other homeowners signed to make their voluntary /mandatory association. When I looked through my title history my property never signed the 1982 document throwing out the original document. And I never signed the concentration form to go mandatory but that didn't stop the HOA. They had threatened me with lawsuits numerous times and they won and/or for closed on others that didn't know what to do.

So be prepared. This board you described is incompetent and it won't take long for an attorney to take advantage of that and try and come after you because they believe something that is not the case.
SusanE6
(Florida)

Posts:102


09/01/2015 6:25 AM  
Ah, it gets better and better. A few days ago the attorney for the Association wrote a two page letter(what did that cost) about a letter my husband and I sent to the homeowners describing the lots he forgot to recognize as being extinguished. Funny....
On July 1st, the President wrote that we were 100% compliant with MRTA - all lots were preserved. When we wrote to him that our lot was wrongfully preserved, all kinds of emails came from the President; accusing me of playing lawyer, not knowing MRTA like he knew MRTA, and showing me my title(which was a title from a lot I sold years ago). This well informed President - all his info came from the Association attorney(who had 18 years of HOA law under his belt). Now, this experienced lawyer writes to the homeowners about my letter and states there are 8 more lots that were extinguished but never admitting he made a mistake - and actually there are nine more lots that he failed to recognize. He is sending out forms for the newly extinguished properties to sign so they can get back into the Association. I am one of the lots and I will not sign to get back into this horrifically run Association. Not until Florida wakes up and sees what a travesty living in HOAs is and works to protect the homeowners from Boards that are run poorly and wasting our money, will I join this Association. What a shameful exhibit of attorneys using our hard earned money and not doing their job properly. And than sending out a letter bad mouthing an owner.And I am the owner that brought MRTA up to them in the first place.

Disgusting what Florida residents have to put up with living in HOAs and have no enforceable laws to protect them.
TimB4
(Virginia)

Posts:15999


09/01/2015 6:56 AM  
Posted By SusanE6 on 09/01/2015 6:25 AM

Disgusting what Florida residents have to put up with living in HOAs and have no enforceable laws to protect them.




Susan,

It's not just FL, it's like that (what you perceive) in all States.

The laws are enforceable. However, the laws are civil laws (vs criminal laws). Criminal laws are enforced by the City/County/State governments. Civil laws are enforced by the parties involved and that is done through the courts.
GwenG
(Florida)

Posts:592


09/01/2015 8:24 AM  
Susan posted:

What will they do? Already they have changed the meeting announcement to" only association members allowed to attend". I guess they are excluding me from the Association.


Your board cannot exclude you from the Association. You are a member per corporate documents because you own a parcel. When you sell, you will no longer be a member. MRTA ONLY expires deed use restrictions that "run with the land".

You still have the right to attend meetings, run for the board and vote. You must still pay for amenities that you use per your/my attorney. (This has not yet ripened in Florida, but other states' case law has decided owners have an equitable obligation to pay ONLY for amenities that they use.) I suggest you get your attorney to weigh in on this and nip it in the bud--maybe formally request a partitioning of fees for which you are responsible.

You are only released from the restrictions described in the Covenants (and Rules/Regs).
SusanE6
(Florida)

Posts:102


09/01/2015 8:29 AM  
Thank you, Tim. Sadly to enforce the rules against a badly run Board/Association, you must use your own money and probably will not get it back. And the Association will run improperly anyways - most Board members are self serving and have no education on how to run a business. In our state they must be certified - most sign an affidavit that they know what the laws and covenant say. They do not.

Sadly, doing things right is not on most Board members agendas. They want to do things their way, bring in peopla they have as friends that can do the job or use volunteers to do licensed/insured work. Watching them do these things and know that it is wrong - that is what is mind boggling. And to do it with my hard earned money.......
GenoS
(Florida)

Posts:2435


09/01/2015 11:48 AM  
Just spitballing... what's needed is when a property is judged - by a court or state agency - to no longer be encumbered by deed restrictions that a proper notice be filed with the county's official records.

Then, any time in the future when an attorney or wannabe HOA or fearful neighbor starts haranguing you about why you won't play the game their way, you could point them to that book and page of the official county records. That would put an end to such conversations really quick and leave no doubt about the status of the property.

Sending out affidavits that purport to re-encumber a property anew with deed restrictions, in a way not in accordance with covenant revitalization as per Florida statutes, should be a criminal offense. There's more than one criminal offense going on there in my (non-lawyer) opinion. Making false statements, fraud, and extortion for starters.
KevinK7
(Florida)

Posts:1342


09/01/2015 12:20 PM  
Posted By GenoS on 09/01/2015 11:48 AM
Just spitballing... what's needed is when a property is judged - by a court or state agency - to no longer be encumbered by deed restrictions that a proper notice be filed with the county's official records.

Then, any time in the future when an attorney or wannabe HOA or fearful neighbor starts haranguing you about why you won't play the game their way, you could point them to that book and page of the official county records. That would put an end to such conversations really quick and leave no doubt about the status of the property.

Sending out affidavits that purport to re-encumber a property anew with deed restrictions, in a way not in accordance with covenant revitalization as per Florida statutes, should be a criminal offense. There's more than one criminal offense going on there in my (non-lawyer) opinion. Making false statements, fraud, and extortion for starters.




I still don't think that would work. MRTA fits on a page. So does my root title with the date. Adding 30 to the year isn't that hard (1979 + 30 = 2009). Despite the HOA having this information they still decided to try and enforce covenants against me. They still threaten legal action. The first time a few years ago I had to get an attorney. Then they got a new manager and the enforcement letters started again. I had to remind them again. Then they got a new manager and I got another letter demanding years worth of assessments and legal fees. They had the same attorney through all of this. I had to have an attorney respond again.

One would wonder why they try and try and do nothing when rebutted. My attorney believes they were testing the waters and trying to intimidate me hoping my legal representation was out of the picture so that they may pursue action against me without fear of losing. When their attorney preserved the C&Rs they preserved the wrong ones and the original ones expired. There are also a lot of other issues but those are meaningless because they preserved the wrong documents. And when told they did it wrong their solution is to carry on and come back to me later. I doubt having a court document saying a property is unencumbered would prevent a HOA from pursuing legal action. A month or two after my attorney notified the HOA that the C&Rs expired they still pursued action against a neighbor and foreclosed on their property. The homeowner was unaware of MRTA or the fact that they did not have to pay assessments. They lost their home for not knowing their rights. My last HOA decided to drag out legal proceedings in an attempt to drain the plaintiff's resources. They understood that most homeowners cannot afford a protracted legal battle.




KevinK7
(Florida)

Posts:1342


09/01/2015 12:27 PM  
Posted By GwenG on 09/01/2015 8:24 AM
Susan posted:

What will they do? Already they have changed the meeting announcement to" only association members allowed to attend". I guess they are excluding me from the Association.


Your board cannot exclude you from the Association. You are a member per corporate documents because you own a parcel. When you sell, you will no longer be a member. MRTA ONLY expires deed use restrictions that "run with the land".

You still have the right to attend meetings, run for the board and vote. You must still pay for amenities that you use per your/my attorney. (This has not yet ripened in Florida, but other states' case law has decided owners have an equitable obligation to pay ONLY for amenities that they use.) I suggest you get your attorney to weigh in on this and nip it in the bud--maybe formally request a partitioning of fees for which you are responsible.

You are only released from the restrictions described in the Covenants (and Rules/Regs).




That is one thing my other HOA used. They bent the laws. When they converted to "mandatory maintenance" they claimed it was not mandatory membership because people could still join voluntarily, therefor they did not fall under 720. Then they used 617 to ban certain people from the meetings. For instance, they were demanding my money as "mandatory maintenance" but denied me entrance into the meeting.

BUT... they altered their corporate documents to allow a certain number of non-homeowners to run for the board. This is how they had two people from the same residence as president and treasurer and a homeowner from a neighboring association as a board member (and going back years they technically had board members from several different neighborhoods as board members because our development was broken up into several sections each with their own C&Rs and ability to for a separate HOA). They also redefined some stuff to concentrate power with the board. They changed quorum requirements and voting thresholds and made all proxies go to the board members. Basically, it was impossible to make any change because they set up a corporate structure that gave them unrestricted authority.
JohnC46
(South Carolina)

Posts:7772


09/01/2015 2:42 PM  
Geno

All I know about MRTA is what I read on here but from what I understand it was not meant as OK folks you get to do a redo if you want to be a member of an HOA 30 years after it was incorporated (even if you recently bought in and/or do not like your BOD) and some are using it as such.

SusanE6
(Florida)

Posts:102


09/01/2015 4:16 PM  
You are so wrong, John 46. I joined my Board three times during my 30 years of living back here. Three times I fixed a broken Association and Board and three times someone joined the Board with self serving agendas. The liability of running a Board improperly will one day hit these folks square in the face. They have always had it fixed and than run it into the ground. I do not personally wish to depart from my home due to the poor way this Board is conducting business. But I do not wish to pay into a system that is doing things improperly with the Association money. I was the Treasurer for four years and I now am seeing this new Treasurer do very improper things with the Association money. Therefore, since my deed has expired, I will ask to leave the Association. I do not use anything but the cable. I do my own lawn service, irrigation, never use the pool and our common areas are behind our homes - most homeowners have developed these as the Association refuses to do so.
By preserving the titles improperly and than the Association attorney stating in a recent letter to the homeowners in which he stated that if we did not sign the form he made up to be reinstated in the Association, we no longer could go to Board meeting, participate in Association business, utilize the services provided to members, or use the common grounds(pool). To me, he is giving me no choice but to leave the Association and be a free home. The lawyer has described it in his letter and he has 18 years of HOA experience under his belt so all this must be true.

Again, John46, I wouldn't have stayed for 32 years in this horrific association if I didn't think it was salvageable. But after all these years of being kicked in the head, I have come to the conclusion that it isn't worth being a member. If MRTA provided me with this, so be it.
KevinK7
(Florida)

Posts:1342


09/01/2015 4:38 PM  
Posted By JohnC46 on 09/01/2015 2:42 PM
Geno

All I know about MRTA is what I read on here but from what I understand it was not meant as OK folks you get to do a redo if you want to be a member of an HOA 30 years after it was incorporated (even if you recently bought in and/or do not like your BOD) and some are using it as such.




I understand that there were unconsidered consequences of the law regarding HOAS but many of those issues were addressed years ago. Some believe they did not go far enough while others believe they do too little. I am somewhere in between and see that, yes, MRTA is not a redo BUT I think when considering the history regarding the formation of HOAS in the first place MRTA could be a good tool in cleaning up old documentation and in that process modernizing language or rooting out abuses.

If you think about it, if HOAS were tools 0created by developers to sell properties, what purpose should those tools have 20, 30, or even 40 or 50 years after that developer exited the neighborhood?

As I had mentioned in previous posts, my old neighborhood had covenants that granted supreme authority to a regional philanthropic organization, but it also had basic negative covenants and no more. The HOA decided they had authority because they made a deal with the developer. Nearly 20 years after that deal they decided to rewrite the covenants to make them more restrictive. They ignored the clause for the organization and filed paperwork sparking a huge lawsuit. It didn't endwell. The organization had the mindset that the new documents were invalid but they weren't going to get involved and waste resources in a battle between homeowners and an association. MRTA helped put an end to the debate in that case and cleaned up a real messy sI tuition but in just 30 short years a lot had happened to create a potentially huge legal mess.

Both my neighborhoods were voluntary groups and the covenants were small and limited in scope. They worked for nearly 30 years with no problem before someone decided to drastically change the scope and all hell broke loose. I think in those occasions MRTA did what was intended and cleaned up records to help facilitate marketability. I think the only HOAS that are experiencing problems are the ones not well run or that played loose with the law and now that the expiration has approached they don't know how to deal and a lot of attorneys have little experience with the nuances of the law to help.

I know to some us MRTA people sound like whiners but how would you feel if a cloud of uncertainty was hung over your property and biggest investment? To me I am thankful for my "redo" because it has literally saved me thousands and has helped me be a better member of my community by allocating my recourse in a more effective manner.
GwenG
(Florida)

Posts:592


09/01/2015 6:44 PM  

JohnC46 posted:
All I know about MRTA is what I read on here but from what I understand it was not meant as OK folks you get to do a redo if you want to be a member of an HOA 30 years after it was incorporated (even if you recently bought in and/or do not like your BOD) and some are using it as such.

When I began my MRTA lawsuit, I was aware that I was FREE of Association use restrictions although it would probably be an endless contest to have sovereignty recognized. This freedom was/is a side benefit. The original and overriding goal was to uncloud my title which had been encroached on by the Association's filing of a preservation on my MRTA-expired lot. My home is for sale. Not contesting an invalid preservation could have resulted in a messy title closing (at the very least) and cost me money in attorney's fees or I could possibly lose my buyer to whom I represent the property as HOA-free. It is my perception that buyers are avoiding HOA's and that freedom from HOA restrictions would be a marketplace advantage.

Since the inception of this MRTA issue, I have been gobsmacked with even more compelling reasons than marketability to rid myself of this dangerous and incompetent Association. MRTA started off as a vehicle to correct title slander, avoid future legal and title problems and possibly enhance marketability -but now MRTA is a financial and economic lifesaver that I will take advantage of without apology. In hindsight, buying an HOA property was the most problematic financial decision I ever made. It also occasioned the first and only lawsuit I have ever initiated or otherwise been involved in.

Since I won my case and all my attorney's fees were returned to me, I will not hesitate to defend my property's freedom from HOA use restrictions in the future.
SusanE6
(Florida)

Posts:102


09/01/2015 7:48 PM  
So what is all this for - having your property preserved? If they did it improperly and clouded your title - you are not preserved? To get back in the Association, one must be revitalized or just sign a form the attorney provides stating you are once again a member? If you choose not to be a part of the Association - you still are a member of the corporation and still are a member of the Association????? So why is the Association attorney telling me I no longer can be a part of the Association if I don't sign his form? Confusing......

I feel this Board and their attorney are not doing what is right. When I look at the preservation , the original docs with their page # and Book # are still on top of the page with different page # and book # in the preservation and amendment. I just feel this attorney is not use to MRTA and is stumbling into it hoping no one knows what he is doing. He still has missed 11 extinguished titles and has admitted only five new ones from the orignal three. What a real mess.......
GwenG
(Florida)

Posts:592


09/02/2015 5:44 AM  
My lot title was slandered by the Association's filing of the preservation OVER my previously-MRTA expired lot. That is why I sued; to get them to remove the preservation and recognize the expiration of Covenant deed restrictions. I tried to convince them for months with a title search, title opinion, law references etc. The idiots listened to their lawyers who said all this was a "gray area" and filled them with fear of a future lawless community run amok with little old ladies like myself. The attorney advised that homeowners RARELY sue an HOA and just wait for me to go away or die. When it became apparent that these idiots refused to attend to business, I had no choice but to sue. The prevailing attitude of the board was "Let's see how deep her pockets are!" (The answer is "Deep enough".)

It is my understanding that membership in the Association is mandatory with regard to the CORPORATE side (MRTA does not expire Art of Incorp or Bylaws although it substantially guts their applicability.) I am still a member as long as I own my lot. I still have all the rights but there is little reason to exercise these rights (who cares about the bozos elected to office?). I still must pay "my fair share" of amenities that I use, according to my attorney. This is subject to negotiation but that issue has been set aside for right now as the Association attempts to revitalize the Covenants. I will not be subject to revitalized covenants because I do not consent and have additional protection by virtue of homestead status. Homestead is also an issue that has not yet been litigated in Florida and ==alas==I might be the first case as believe these idiots will attempt to reimpose restrictions on my parcel if revitalization passes.

What I have gained is the certainty that I have firm legal ground to successfully contest any challenge this HOA makes to my parcel's sovereignty. I wish not to do this but am resigned that it will be an inconvenient nuisance as long as I own my property. I am still trying to sell--never again to buy into an HOA.
SusanE6
(Florida)

Posts:102


09/02/2015 6:55 AM  
Just heard from our attorney. It seems that they have ignored his letter to amend the preservation without our title being excluded. So, we will file a law suit with three counts:
1) slander of title
2) quiet title
3) declaratory relief under MRTA which included our attorney fees

Our attorney states we can not with hold our fees but we feel that we should as the Association attorney has made it clear we are no longer a part of the Association and can not use the pool, lawn care, attend meeting or have a voice in the Association. Where do these attorneys come from? They don't know the law; they recommend to their clients material that is not correct and they write a letter that is exposed to the membership that is full of lies. Why are they not reprimanded for this? It is using homeowners money for false information.

We checked the county records and this attorney has added three of the eight extinguished titles to the preservation. So far the other 4 have not been applied. And we are not going to sign this attorney's affidavit allowing us back into the fold. Sadly, when he applied the three forms to the preservation that the homeowners signed, he forgot to put the new page and book # of the covenants on the form and used the old covenants book and page #. He did not amend the preservation properly.

My husband and I have decided not to pay the assessment as this attorney's letter was sent out to the general membership stating we no longer were members of the Association. He sent this letter exclusively to the President and stated in the letter:
"This correspondence includes privileged communication between attorney and client.This letter is not to be disclosed to 3rd parties without the consent of the BOD.This letter is not to be placed in the official records of the association until such a time the BOD has determined to make its content public". There was no Board meeting to discuss this letter; the President sent it to the Treasurer who decided on her own to release it to the membership. No minutes that this was discussed by the Board and definitely no Special meeting. If this brilliant attorney feels we are no longer members, than it must be so. And now the membership is not allowing us to be a part of the Association(I prefer not to be).

In his letter he stated that it would be costly to revitalize the covenants and he recommends having the homeowners sign a form allowing them back into the Association. For the second time, he refused to acknowledge my attorney's letters.

So, onward we go, and will allow our attorney to file suit. With a sad heart, I feel this Board has gone to the dark side and misrepresent the membership. I had worked hard for the Board but now will watch all the monies that were collected to help the Association be utilized for a lawsuit. It is very sad that a group of ill informed Board members can do this to the Association. But the membership is hanging right with them and listens to everything they say with complete trust. So, they all will have to pay for this. Heartbreaking.......


BobD4
(up north)

Posts:904


09/02/2015 7:36 AM  
SusanE6 Fla :

" Our attorney states we can not with hold our fees but we feel that we should as the Association attorney has made it clear we are no longer a part of the Association and can not use the pool, lawn care, attend meeting or have a voice in the Association. . . ."

Without reading what the HOA's own lawyer wrote to you, cannot be sure if 'you are now physically forbidden . .' etc or instead presented with a potential scenario : 'IF you do not pay dues, you would be forbidden to use amenities.'

You may want to check the HOA incorporation articles about denying usage as part of any dispute. But consider the vulnerability of your usage & membership to capricious refusals. The toxic circulation by the Treasurer already may do long-lasting harm.

Worth careful thought before disregarding your own lawyer's advice.

SusanE6
(Florida)

Posts:102


09/02/2015 8:45 AM  
Thank you, Bob. I will carefully rethink holding my fees. I do want my attorney to communicate with the Association attorney and have this attorney put out a statement to the membership that he was incorrect and we are still members of the Association. That way we can still attend meetings and ask for financial info. The Treasurer is writing the agenda now(she has made herself "Queen" of our HOA) and does everything. On the agenda, she changed it from all property owners welcome to only association members allowed.

It is an ugly situation and I thank all for their comments.
GenoS
(Florida)

Posts:2435


09/02/2015 12:18 PM  
Posted By JohnC46 on 09/01/2015 2:42 PM
Geno

All I know about MRTA is what I read on here but from what I understand it was not meant as OK folks you get to do a redo if you want to be a member of an HOA 30 years after it was incorporated (even if you recently bought in and/or do not like your BOD) and some are using it as such.

I have to disagree, John. I think that's exactly what it was meant to do: extinguish covenants on land that have outlived their usefulness. MRTA extinguishes petty encumberances. What could be more petty than a board that is clueless about MRTA and derelict in its fiduciary duty?

The means to prevent extinguishment and the means to re-establish what was lost if you miss the deadline both exist. If those procedures can't be followed then it's not the homeowners' faults that the one or more boards was/is inept. I wouldn't want to be associated with such an HOA either.

To me, the homeowner's motives don't matter in the slightest.
GwenG
(Florida)

Posts:592


09/02/2015 2:46 PM  
SusanE6 posted:

We checked the county records and this attorney has added three of the eight extinguished titles to the preservation. So far the other 4 have not been applied. And we are not going to sign this attorney's affidavit allowing us back into the fold. Sadly, when he applied the three forms to the preservation that the homeowners signed, he forgot to put the new page and book # of the covenants on the form and used the old covenants book and page #. He did not amend the preservation properly.

To be clear, you cannot PRESERVE extinguished Covenants. Preservation is "continuation" and must be done while the lot is still encumbered. When extinguishment occurs, it can either be done by the individual in the same manner that was done originally i.e. a deed referencing specifically the Book/Page where the revived covenant is located or it can be done by the Association on behalf of owners by going through the revitalization process described in FS720. In my opinion, an HOA who involves itself in individual homeowners option to self-impose restrictions is over-reaching and can probably be nullified as a coerced contract.


Susan E6 posted: I have to disagree, John. I think that's exactly what it was meant to do: extinguish covenants on land that have outlived their usefulness. MRTA extinguishes petty encumberances.

In fact, the original incarnation of FS712 (MRTA) did not foresee the consequences of its actions on HOA's and required a special "Fix". The original intent was not to extinguish covenants (that may or may not have been petty or outlived their usefulness) but to extinguish outdated title claims limiting land use. Say that Owner A placed a deed restriction on property in 1970 that required part of the land to be used to provide a shelter for rescued dogs. Subsequent Owners B & C were bound by this restriction unless Owner A could be located and convinced to remove the restriction. Then, in 2015, Smart Owner D realized that the restriction had not been specifically restated since its inception in 1970 and decided to ignore the 45 year old dog shelter requirement under the protection of MRTA. The purpose of MRTA is/was to provide a vehicle to extinguish or "time-out" old claims on land and reset land use to public standards. This would relieve title searchers from having to search titles back to the frontier days to trace owners who were long gone and restrictions that were no longer desired. By limiting title searches to 30 years, it provided a greater ease of marketability of land by eliminating the necessity of clearing old title claims aka "quiet title" actions.

Ease of marketability of land was the overriding consideration of MRTA.

GenoS
(Florida)

Posts:2435


09/02/2015 5:26 PM  
That sums it up better than I did, Gwen. By the way, your second attributation to SusanE6 was actually posted by me. Yeah, quoting other posts on this site is not as easy as it should be.
KevinK7
(Florida)

Posts:1342


09/02/2015 6:48 PM  
Rough timeline (best I can recollect):

1979: C&Rs made.
1982: 50% homeowners release 1979 C&Rs. Institute new C&Rs over everyone.
1985: Developer changes. Makes some kind of arrangement. Association formed with clubhouse and common property not mentioned in either 1979 or 1982 covenants.
2001: HOA gets 50% to approve C&Rs forcing lifetime membership on new owners or those who join.
July 2009: C&Rs expired.
November 2009: C&Rs improperly preserved.
2010-now: HOA continually tries to enforce on homeowners threatening legal action, demanding direct payment of rent, etc.

Remember: neither the 1979 or 1982 covenants mention a hoa, membership, fines, fees, assessments, etc. They altered language in 2001 to give them sole authority.

MRTA was a godsend. My property never signed the 1982 release (is that even legal?) Or the 2001 joinder. Why should the title be clouded because my neighbors want a club with a bunch of rules? Why should I owe money to an organization I have no affiliation with?

Soooooo... As a homeowner who has used MRTA, I am glad it exists. Otherwise I would be spending thousands to a group of unprofessional busy bodies to tell me how to live on my land.
VickiC3
(Florida)

Posts:26


09/09/2015 6:27 AM  
Hi...our HOA stands for 50 years, however everything else expired in June 2015. The board is trying to revitalize. I have some simple questions that are causing much confusion. We have 37 homeowners. We had a vote. There were only 23 out of 37 ballots that came back. There were 20 yes, 3 no's and 1 I need more info. The board and lawyer said it passed with a majority. There are homeowners that say we need 2/3 of the homeowners to vote yes. There are homeowners that say if a ballot does not come back it's a no. Does anyone know the answers to these questions? There's about to be a huge explosion between a board member and several homeowners. We have three board members. The presidents wife is in everything and put out wrong information. The Vice President also gives out wrong information and never can answer a question. I'm just trying to get simple answers. I hope someone can help! Thanks....
GwenG
(Florida)

Posts:592


09/09/2015 7:23 AM  
VickiC3 posted: Hi...our HOA stands for 50 years, however everything else expired in June 2015. The board is trying to revitalize. I have some simple questions that are causing much confusion. We have 37 homeowners. We had a vote. There were only 23 out of 37 ballots that came back. There were 20 yes, 3 no's and 1 I need more info. The board and lawyer said it passed with a majority. There are homeowners that say we need 2/3 of the homeowners to vote yes. There are homeowners that say if a ballot does not come back it's a no. Does anyone know the answers to these questions? There's about to be a huge explosion between a board member and several homeowners. We have three board members. The presidents wife is in everything and put out wrong information. The Vice President also gives out wrong information and never can answer a question. I'm just trying to get simple answers. I hope someone can help! Thanks....

Your guidebook is FS720.4xx (not governing documents) and it provides that 50+ % homeowners can authorize revitalization. If a ballot does not come back--or if it comes back with a NO vote, it means nothing. ONLY (affirmative) YES votes count toward passage. Your membership passed the revitalization with the YES requirement. The entire membership is the baseline, so if you have 100 homeowners and 40 of them do not return a ballot but 51 vote YES on a ballot, the revitalization can be authorized. That does not mean the revitalization will be approved by the DEO-only that it can be attempted. Also, any expired homeowner who is homesteaded in Florida must consent, in writing, to be re-encumbered by revitalized documents. Otherwise, they are free of the revitalization. (This has not been litigated yet in Florida but my attorney believes it is inevitable that an Association will attempt to force revitalized documents on homestead-exempt parcels and it eventually will end up in the courts.)

With the proportion of votes, my opinion is your board needs to do a lot more education. Causing two large classes of encmmbered/nonencumbered lots will not result in happy times in the hood.
VickiC3
(Florida)

Posts:26


09/09/2015 8:03 AM  
Thanks for your information! A homesteader is a homeowner that has been the owner of their home for 30 years? They can withdraw then even if the revitalizing goes through? I'm assuming the board or lawyer would have to ask these homeowners which way they chose to go?
GwenG
(Florida)

Posts:592


09/09/2015 8:42 AM  
VickiC3 posted: Thanks for your information! A homesteader is a homeowner that has been the owner of their home for 30 years? They can withdraw then even if the revitalizing goes through? I'm assuming the board or lawyer would have to ask these homeowners which way they chose to go?


A homesteader is an owner of property who meets the criteria that Florida has set for homestead protection. In general, it is where you hang your hat, get your bills, title your stuff. You do not have to have a tax exemption however, it strengthens the case should homestead be challenged. Also beneficial is a Declaration of Domicile which you can file yourself for about $10 (good to have in addition to tax exemption as they "do" different things). The homestead statute specifies what "homestead" means in FS196. Florida has a generous homestead provision and does not even have a stated "time requirement" for occupancy.

It is not a slam dunk that homesteaders will automatically be recognized as exempt by HOA's. The revitalization tolls from the recording date of the revitalized documents and owners who are homesteaded must consent,in writing, to be reencumbered. Those who resist will certainly feel pressure from the HOA. Attorneys want the business and will "advise" the HOA that it is a gray area and "homeowners never sue". Thus, I believe that my association will attempt to encumber homesteaders should a revitalization occur and we will have another fight to fight.

As my attorney remarked, "it will not be easy attempting to reencumber homesteaders" meaning the Association will be have to be sued for slander of title. (This would be the second slander of title suit for me and I am confident I would prevail and get my attorney fees back a second time. I am willing to sue again to protect my title from this HOA.) There has not yet been case law in Florida. You might look up other states to see if there are any cases.
VickiC3
(Florida)

Posts:26


09/09/2015 3:54 PM  
Thank you so much for all your information! I've been sharing with my friend/neighbor as we try to figure this all out. Are you part of a board or have you just done extensive research into this topic? We are looking at the FSU you gave me on homesteading. I have lived in my home since July of 1985 and am the original homeowner. Would I be considered a homesteader? Is there a year amount to be a homesteader? I remember reading about it in my research but can't remember where I saw it. What separates the homesteaders from the non homesteaders? We have already done outr vote like Intold you. Would there be a reason for the homesteaders to vote? Can we opt out after the vote as long as it's in writing to the board? If I understand this correctly then we can opt out and are not under the covenants and restrictions. This is all so confusing! I'm wondering why the lawyer did not discuss this with our president or maybe he did and he's not telling us! Thanks again for your continued help!
JohnC46
(South Carolina)

Posts:7772


09/09/2015 4:49 PM  
Vicki

What do you personally want to do?

Do you want out of the HOA?

Do you want to be part of the HOA?

Do you want to pick and choose from what the HOA offers?

What do you want?


VickiC3
(Florida)

Posts:26


09/09/2015 5:31 PM  
I'm trying to make a decision. My husband wants out! I'm afraid our neighborhood could go down hill if there's not anything governing it. We have never been able to do much here. A few liens for non payment of dues and get together years ago. A few people were told about paint choices but that's about it. We have some board members that never know anything. Can we opt out?
GwenG
(Florida)

Posts:592


09/09/2015 5:32 PM  
To VickiC3: I have just spent the last two years litigating a slander of title with my HOA. I prevailed and got all my attorney fees reimbursed to me. During that time, I did an enormous amount of research and worked closely with my attorney learning the ropes of MRTA and contract law regarding HOA's in general. I also own/administer an independent owner/resident forum and newsletter and content must always be as current and correct as possible so I frequently consult my attorney before committing facts in writing. I am not on the board, though I have served on a condo board in the past.

Re homesteading; I will give you a link to this subject on my forum as it explains homestead protection thoroughly. Email me at [email protected] and I will send it to you.

A homesteader is recognized by Florida based on certain qualifying criteria. It protects the owner against certain types of claims by others. Homesteading status does not automatically assume homestead exemption because not everyone qualifies for the homestead tax exemption.

A homestead status has nothing to do with voting in an HOA; only your governing documents describe your qualifications to vote and generally this is attached to parcel ownership regardless of its homestead status.

To JohnC46; these questions are beyond the appropriate discussion of this thread. I have previously stated the desired outcome of my lawsuit which was to protect my title from unlawful claim by my HOA. What I ultimately want is the HOA to run itself like a professional business entity managing common property and respect owners' private property rights.
KevinK7
(Florida)

Posts:1342


09/09/2015 7:38 PM  
Gwen:John seems to believe if you don't buy into the HOA then you are the problem. He has made the same statements regarding me.

My first interactions with my board was when they filed covenants on my property demanding my non-member property either became a paying lifetime member or a pay a "mandatory maintenance fee." I had a simplementation question and that was when the HOA and their attorney told me to find out on my own. So I did. Their attorney insisted it was a gray area of the law that shouldn't be an issue as long as it wasn't challenged. It was and they lost.

Ever since then I would advocate that if the board is being run poorly and there does not seem to be hope for improvement then it is best to leave. I find that withholding membership (and tell assessments that accompanies it) can be a powerful tool.unfortunately it also comes with increased levels of harassment.
GwenG
(Florida)

Posts:592


09/09/2015 8:10 PM  
VickiC3 posted:

I'm trying to make a decision. My husband wants out! I'm afraid our neighborhood could go down hill if there's not anything governing it. We have never been able to do much here. A few liens for non payment of dues and get together years ago. A few people were told about paint choices but that's about it. We have some board members that never know anything. Can we opt out?

If your HOA was established as mandatory, according to the definition of Florida, then you cannot opt out. However, MRTA has changed all that and you are now a member of your corporation which previously received its authority from Covenants. You are no longer governed by HOA restrictive deed documents or FS720. When covenants are expired, the original governing documents will presumably provide for corporate membership by virtue of lot ownership. Read the Art of Incorp and Bylaws. Corporate documents i.e. Art of Incorp and Bylaws do not expire by MRTA but they are functionally gutted because they receive their underlying authority from the Covenants. What is left is the corporation FS617 (not-for-profit corp).

Many HOA's operate as corporations after MRTA extinguishes the Covenants/Declarations. The main things lost are property use restrictions declared in the CC&R's and any "protections" that one believes is offered by the homeowner statute FS720.

My HOA is expired and has been operating the common properties in similar manner as prior to the belief/acceptance of expired covenants. It is attempting to revitalize but has already screwed up the paperwork before even submitting the package to Dept Econ Opp and it has to be done over. It is a fact that expiration by operation of MRTA changes much in HOA's insofar as property use restrictions but it does not mean that the property has to decline. It could become a voluntary association as many expired HOA's in Florida have done. Those who benefit from HOA amenities continue to have an equitable obligation to pay "contributions" for the services they use, according to my attorney. Difference in the assessment situation is that HOA cannot lien or foreclose properties that do not pay because the underlying authority to do that has disappeared. They can only sue nonpays and get money judgements.

There are many people that refuse to even consider buying homes in HOA's in Florida because of all the horror stories of incompetent boards trying to control the community with rules, fines etc. Your HOA has been expired for 20 years or so and have been operating during that time. The difference is now you lack the constraints on board behavior that may have been afforded by your Covenants and FS720. Only time will tell if MRTA has made a positive or negative difference in the desirability and operation of your community.

Keep in mind that if you want out--as in selling and getting out--you must divulge what you know about your property's HOA status to potential buyers to avoid a later accusation of fraud.
GenoS
(Florida)

Posts:2435


09/10/2015 12:42 AM  
Posted By GwenG on 09/09/2015 8:42 AM
It is not a slam dunk that homesteaders will automatically be recognized as exempt by HOA's. The revitalization tolls from the recording date of the revitalized documents and owners who are homesteaded must consent,in writing, to be reencumbered.

That's something I'm not aware of. The only reference to "homestead" in FS 720 is in relation to liens and qualifying offers. Homesteading in Florida touches a lot more than just HOAs, I'm sure, and your lawyer's theory sounds interesting although I'm not sure I'd want to be the guinea pig for a court case.
GwenG
(Florida)

Posts:592


09/10/2015 7:42 AM  
Posted By GenoS on 09/10/2015 12:42 AM
Posted By GwenG on 09/09/2015 8:42 AM
It is not a slam dunk that homesteaders will automatically be recognized as exempt by HOA's. The revitalization tolls from the recording date of the revitalized documents and owners who are homesteaded must consent,in writing, to be reencumbered.


That's something I'm not aware of. The only reference to "homestead" in FS 720 is in relation to liens and qualifying offers. Homesteading in Florida touches a lot more than just HOAs, I'm sure, and your lawyer's theory sounds interesting although I'm not sure I'd want to be the guinea pig for a court case.




True. That is an ambiguity in the way the law is written and it has not yet been judicially tested in Florida. There are many legal scholars who believe that revitalization itself is unconstitutional, much less picking and choosing certain deed restrictions to exempt from revitalized restrictions. FS720 recognizes the sovereignty of revitalized parcels from certain restrictions and conditions specifically i.e from forced sale foreclosures if provided for in a revitalized document. (My HOA does not have the power to lien and foreclose in the original documents and, this fact alone precludes it being an HOA, as defined by statute. This ineligibility could be another basis for legal challenge of encumbering my parcel with revitalized restrictions.)

My lawyer believes that it would be difficult for courts to deny homesteaders freedom from retroactively applying some, but not all, deed restrictions that are revitalized without the parcel's consent. All based on lawyerly ponderous principles which he did not go into detail about. I hope that I do not become that client/guinea pig but that will be something the lawyer/mad scientist and I will work out if and when the HOA acts to attempt to include my non-consented, homesteaded parcel in revitalization.
KevinK7
(Florida)

Posts:1342


09/10/2015 8:19 AM  
That is very interesting. I personally believe revitalization should be illegal and that if HOAS want continued existence they would need homeowners to certify each year to continue.

I remember when my last neighborhood wanted to covert the surrounding sections they collected signatures over 3 years and once they collected 50%+1 they filed. I combed through property records and cross referenced with the filed documents to reveal that nearly 10% of those people who signed a document intending to impose "mandatory maintenance" assessments on nonmembers sold their properties prior to the HOA filed their documents. That showed that the HOA had difficulty collecting the necessary signatures and had to use deceptive methods to achieve their goals. Once filed they ramped up enforcement and many paid into it out of feat. I think that if the HOA had to actually fight to be more inclusive by requiring homeowners to show support on a yearly basis participation would improve and hoa performance would become a lot better.

But I am sure the hoa and lawyer lobby will beat out the nonexistent homeowner lobby in the legislature
VickiC3
(Florida)

Posts:26


09/10/2015 8:56 AM  
I have read so much and I am still not clear on the homestead. What exactly constitutes a homestead/homesteader? I've been in my home for 30 years, have a homestead exemption and our CC&Rs expired in June 2014. So we have that break in time, now over a year without CC&Rs. The board just got enough votes to attempt revitalization. I think I already told you but to refresh there are 37 homeowners. The ballots were 20 yes, 3 no and one that said I need more info. The letter that went out with the ballot had incorrect information. Those of us that we're the first to buy our homes were deeded 1/37th of our lake access. The rest did not get the 1/37th it went to the HOA. A few years later after many arguments those of us that Had the 1/37th turned it over to the HOA basically so if someone got hurt all of the homeowners couldn't get sued! The letter that went out with the ballot told everyone "we are all owners of the 1/37th go the area going to and by the lake. To which we are all responsible for." This is misleading to me considering most of the homeowners now don't know or didn't know anything about this. Apparently our board didn't know either. I asked our VP who is an original owner and she said she never paid attention to it her husband did, the crazy thing about all of this is the board new two years before that our CC&Rs were expiring and do nothing. They could have taken care of it and all this would not have taken place. Thanks...
GwenG
(Florida)

Posts:592


09/10/2015 9:25 AM  
Generally, HOA common property cannot be divided into shares and lakes generally cannot be privately-owned-only controlled for access. It is typical for the HOA to "own" the lake access and be responsible for liability related to the lake since it is HOA common property. The answer may be in your expired documents as to the intended "ownership" of lake access.

Homestead is two things: 1)protection of the "castle"; it partitions the home as a protected asset and makes it more difficult for creditors to reach and 2) a potential tax exemption and protection from excess tax increases. Florida has the most generous homestead protection laws in the nation. Have you read the thread on my forum yet?

Homestead has nothing to do with HOA's and there is little practical, actionable information about its impact on HOA revitalization.

It does not matter how long you have been in your home as long as you meet the criteria Florida has set for a homestead which is described in the statute (or you could call your county property appraiser).

Suggest you forget about any role of homesteading on your situation; it is a separate issue. It is not going to be fruitful in shedding any light or direction on your MRTA issues. IMO, you need to focus your concern to the problem you want to solve and then redirect the conversation.

Educate yourself using this forum and my resident forum which has a wealth of information about MRTA as well as a longitudinal narrative of two successful owner lawsuits involving MRTA.
JohnC46
(South Carolina)

Posts:7772


09/10/2015 10:41 AM  
Kevin

Allow me to state my personal belief. MRTA was designed to be sure a title was clear at a certain point due to many old land grants, unrecorded land sales, etc. a FL title could be a real hodgepodge and many of them not as "clear" as one was lead to believe. This in itself sounds like a good idea.

It was never meant to be a "redo" on being a member of an HOA. Some have interpreted it as such and use it as such. Not that they are legally wrong (as Geno points out) but it is very much using the letter of the law versus the intend of the law. Even those involved (and many lawyers) admit the law and actions being taken are a mess and open to various interpretations.

What I mainly hear is people pi$$ing and moaning about how badly their association operates and they are looking for ways to get out of it. Sort of like they are using MRTA selfishly versus what it was intended to be for.

Philosophically I do not believe one gets a redo on being a member of an association. Such would undermine the ability of an association from the get go. The people I find more offensive are those that are saying well yes I will pay for what I need and want but otherwise I am out. Kind of like I want to skim the cream off the top and the he!! with what is on the bottom.








GwenG
(Florida)

Posts:592


09/10/2015 4:18 PM  
Posted By JohnC46 on 09/10/2015 10:41 AM
Kevin


Philosophically I do not believe one gets a redo on being a member of an association. Such would undermine the ability of an association from the get go. The people I find more offensive are those that are saying well yes I will pay for what I need and want but otherwise I am out. Kind of like I want to skim the cream off the top and the he!! with what is on the bottom.




I will disagree with you aout the "redo" and here is why. Implied in your opinion is that there is inherent "creamy" value in being an association member and one should tolerate being abused and sued for the pleasure of licking the tasty, creamy goodness. Also, you acknowledge that people will agree to pay but contend that the association will still be "undermined". This is not clear and certainly not a given. I believe both of these are faulty premises.

MRTA has had unanticipated consequences. Let there be no mistake; I would like nothing more than to be free of this HOA and the headaches and liability it presents to me as an owner. Unfortunately, it is darn near impossible to sell anything in here but cheap "vacation cottages" and mine is not in that category thus, I have been unable to sell my doublewide manufactured home. Additionally, FL HOA's have a horrible reputation and real estate owners don't even want the listings for lack of potential buyers and various HOA issues that sour sales (such as MRTA).

I enjoy my park but I want no part of the incompetent nincompoops that operate unlawfully and disrespect owners and private property. I recognize the need to pay my fair share but never anticipated spending two years of my golden years and 10 thousand dollars in legal fees to defend my title from the brazen actions of this HOA. MRTA has opened the door to some relief and I intend to walk through it. Fortunately, my legal fees have been returned to me, but I can never recapture peace of mind or "true community". The ongoing public denigration, false accusations and lies of the board against me have assured that I will forever be a feared pariah.

John, you are certainly entitled to your opinion that people are "using MRTA" to get out of HOA's. I say to HOA victims "Do whatever you have to do to be free of these horrible private governments" run by egotistical sociopaths with deep pockets to litigate any control issue they please and no oversight by state regulators that they abide by governing documents or statutes. No one could have anticipated the hell that this HOA has put me and others' through. Most assuredly, we would have never chosen to buy in an HOA if there was any indication of the chaos to come.

It is MY opinion that it's "gloves off" when there is such a monstrous imbalance in the justice that is reasonably available to those captive to their HOA's abusive tactics. This is not a level paying field. HOA's have nearly-unlimited means to accomplish their mission and owners have only expensive civil redress which most retirees cannot afford. For that reason, I have established a not-for-profit corporation that provides immediate legal assistance and consultation services to HOA homeowners only. The consulting HOA attorney is retained and agreed to be available. It is privately funded by donations.
KevinK7
(Florida)

Posts:1342


09/10/2015 10:21 PM  
In both instances where MRTA had affected my properties, there was no official HOA mentioned in the covenants and restrictions referenced by book and page on my root title. In one neighborhood, the adjacent HOA decided it wanted to take over my subdivision and rewrote the C&Rs filing an illegal conversion. In the other instance the HOA that formed several years after the neighborhood was developed and the original developer went bust converted to a semi-mandatory association using some lawyer's idea of a loophole to circumvent 720 and have free reign with enforcement (same attorney for both). Yeah, there were other aspects to these cases, but MRTA took affect and wiped the slate of not only the original C&Rs but the shady attempts made by the future BODs. I was perfectly fine in my neighborhood with its set of negative covenants (no this, no that). I joined the voluntary association and participated in its function. They both ran fairly well until a set of ambitious board members took control. They continually pushed until they could find a perfect way to work around homeowners and the law.

For instance, in my nice voluntary neighborhood, the board wanted to rebuild our cinder block wall with a red brick wall. They didn't get competing bids or input from the membership on what it would look like. Instead they presented every homeowner with a yes or no ballot. It failed miserably. Instead of quitting or reworking their idea, they discovered municipal service benefit units. With lower and easier thresholds to meet for passage they got their wall approved and added nearly $500,000 added to everyone's tax bill. They did this with less than 30% approval. Many homeowners didn't even realize the wall was up for a county vote because they were not told. The board even misrepresented themselves to the county, and as we all know with Florida, the government does not and will not check into the validity of claims by a HOA.

After their success with the wall the board did it again with speed humps, this time winning with less than 18% approval.

They then converted each surrounding subdivision and started sending out demand letters for "mandatory maintenance" fees. Many paid for fear of retribution. This gave the HOA a tremendous war chest and they went on the offensive threatening lawsuits to anyone who stood in their way.

Mind you, this was all done with illegally filed covenants and restrictions. MRTA saved the neighborhood. The HOA could still exist in its previous voluntary form that saw much success but a few people ruined it.

My other neighborhood saw the same deal. My covenants are very easy. The HOA had spent the last 30 years filing amendments. Heck! Only a couple years after the original documents were composed half the homeowners felt they can "redo" the covenants and wrote new ones that gave them authority over everyone. And it was those covenants that they insisted on preserving. They amended their illegal new covenants to give them more power and pursued legal action against homeowners.

MRTA eradicated those documents as well.

While MRTA may have had some unforeseen affects on C&Rs and HOAs, those affects really haven't strayed much from the original concept. In my situation, as well as others on this board, illegal documents were filed with the state and enforcement was attempted. MRTA cleaned the history for those properties to make them more marketable.

My property is more marketable by not being a member to a broken corporation. A guy I know was going to pass on a house in the neighborhood because the HOA was demanding membership and payment. Once his mortgage lender's lawyer got involved and realized MRTA took affect, the HOA backed off and the person decided to buy.

I can go on but I think you all get the point.
SusanE6
(Florida)

Posts:102


09/11/2015 8:15 PM  
Wow - what a horrible mess Florida has made with HOA's. I am now going to sue my Association because they did not properly preserve titles and actually preserved mine when it was extinguished. I am very sad about the affairs of my Board. I, as I have said before, was on my Board and worked hard to make sure we did things properly and within the law. Because of over zealous Board members with agendas to get friends to be vendors and take total control of the Association, I resigned. I have spent a lot on my home, love the area and do not wish to move. My Boards attorney has written a two page missive to the Board which they published to the membership. I feel this is a huge mistake as it can open all kinds of problems. This very smart attorney has informed the Board and now the homeowners, if people with extinguished titles do not sign the form that he provided(this form is signed by a notary, the President, Secretary and the extinguished homeowner) that the owner is no longer a member of the Association. He further explains that the extinguished owner cannot attend Board meetings, vote, utilize the services the Association provides or use the pool and common grounds.
Sadly, I don't use the lawn service, irrigation, pool, and most common areas have been absorbed by homeowners as the Association over the years has never maintained them. So, watching this Board have special meeting after special meeting trying to understand what they need to be doing and losing vendor after vendor due to one Board member's determination to get her friends working for the Association, why would I want to belong? And their lawyer states I am no longer a member. And they have paid this lawyer a good amount of money to do MRTA improperly.

I realize this is a business and a corporation but my bylaws state the Association is run by the Declaration. If my property is extinguished as are the documents, I don't want to pay these idiots with my hard earned money. I am putting it into escrow. My attorney is looking into paying for what I use but right now I use only cable. My attorney states I am still a member of the Association but apparently this Board is going by what their attorney states. My husband and I have asked for financial records and we have been denied. And we no longer have a monthly reminder to pay our assessment. We shall see how it goes. I think they will put a lien against us after we don't pay for 2 months and than.......We will just watch and see what their brilliant attorney does.
I do not attend Board meetings any longer as I am not a member of the Association. However, my neighbor goes and reports they are now bad mouthing me at meetings. Stating I file the taxes wrong to the IRS(I used an accountant) - they are going with the word of a homeowner. They are having this homeowner do their taxes and review. They are also stating someone sabotaged the pool causing them to lose the pool vendor. However, the one Board member lives next to the pool and has a camera focused on the pool.

To John46 - I often wonder by your remarks, what type of HOA you live in and by your remarks it must be perfect. Maybe you could tell us all how we could go about doing what you do to live in such wonderful harmony. I am not being smart - I think that if someone asks the questions you do, that you have no problems. You could be a great help to us by telling us how to resolve all these problems.

Thanks again to all of you - you are a great help in this discussion on MRTA.
KevinK7
(Florida)

Posts:1342


09/12/2015 2:38 AM  
I am certain there are poorly run associations in states other than Florida but what I see is that in Florida there is a lot of hurdles designed for homeowners but not many for a HOA. I hear about how MRTA is terrible but it is really roughly one page of simple instructions.

Nearing expiration? Preserve

Expired? Revitalize.

My neighborhood couldn't do either. They preserved the wrong documents and then refused to acknowledge they did anything wrong and sadly the homeowners are the ones to suffer.

That is why I support an ombudsman position to reign in the abuses, but knowing the state they will probably do nothing or side with the industry.
JohnC46
(South Carolina)

Posts:7772


09/12/2015 7:02 AM  
To John46 - I often wonder by your remarks, what type of HOA you live in and by your remarks it must be perfect. Maybe you could tell us all how we could go about doing what you do to live in such wonderful harmony. I am not being smart - I think that if someone asks the questions you do, that you have no problems. You could be a great help to us by telling us how to resolve all these problems.

Kevin

My and most HOA's are far from perfect. Many need to be changed but the answer is not giving people a "redo" on being a member some 30 or whatever years later and that is what some are using it for.

Would anyone buy in an HOA when some years down the road one can decided they no longer want to be a member?


JohnC46
(South Carolina)

Posts:7772


09/12/2015 7:02 AM  
Oops on the all bold.
VickiC3
(Florida)

Posts:26


09/12/2015 7:51 AM  
I have a few more questions that have just come up. Two homeowners just counted the votes. First there is one less ballot then we were told. We need 19 and were told we had 20. So even at 19 it would pass. The homeowners that counted called me and said there has to be an envelope postmarked with every ballot. The president said they were already at the attorneys. I know for a fact there are at least two that were not mailed. One was put in the VP's door. Do you know if this is true? It makes sense to me but I'm not sure. Any clarification would be appreciated.
KevinK7
(Florida)

Posts:1342


09/12/2015 8:49 AM  
Posted By JohnC46 on 09/12/2015 7:02 AM
To John46 - I often wonder by your remarks, what type of HOA you live in and by your remarks it must be perfect. Maybe you could tell us all how we could go about doing what you do to live in such wonderful harmony. I am not being smart - I think that if someone asks the questions you do, that you have no problems. You could be a great help to us by telling us how to resolve all these problems.

Kevin

My and most HOA's are far from perfect. Many need to be changed but the answer is not giving people a "redo" on being a member some 30 or whatever years later and that is what some are using it for.

Would anyone buy in an HOA when some years down the road one can decided they no longer want to be a member?





I understand all that. My properties were purchased knowing there was no HOA OR mandatory membership requiring us to be a part of one and that the amount of restrictions s were small and limited. Some other homeowners wanted a "redo." They saw what the surrounding wealthier neighborhoods were doing and wanted more money for their pet projects. They lost focus on the original scope of the neighborhood and alienated a lot of people in the process. Sadly they found an attorney willing to say yes to all their crazy plans because they believed they could argue a "gray area" of the law.

I am happy being free of that liability. I remember at one meeting when they lost a lot of membership and we're in risk of going broke they wanted to figure out how to spend and where to save. They believed it was more important to pay a year's worth of pest control in advance for county property because they got a slight discount. They wanted to build another $500,000 wall, continue paying thousands on electric and water (again for county property). They wanted foliage with decorative plants that were not native or right for the climate and soil. And when questioned they refused to cut a thing and was banking everything on some far fetched appeal that would somehow pay their thousands in legal bills. Hey were poorly run and refused to accept the facts.

It seems those of us who want MRTA to free us is because THE HOA changed on us and was so poorly run that it would cost us so much more in the long run.
SusanE6
(Florida)

Posts:102


09/12/2015 8:53 AM  
To John46

I don't think most people thought when they bought into an HOA that they would encounter all types of problems including MRTA. I bought into my HOA thinking that a simple set of rules would keep the property values up. Unfortunately for many, it isn't the HOA per say - it is the group of people called the Board that destroys ones desire to remain in the HOA. If Florida enforced the laws they have on HOAs, I don't think we would have so many problems. People that get on the Board feel like the are empowered to control other peoples lives. If they ran it properly, like a business, it would be so much better.

I feel you are wrong, John, in assuming we got into MRTA to get out of our HOA. That is far from the truth. Some people try very hard to be a part of the HOA and contribute a great deal of time. Gwen is fantastic in her HOA - she has a blog for the homeowners to look at - it provides all types of helpful info. I know because I used it to educate my Board about MRTA. Simple and accurate info that they didn't want to hear. Now, they are paying dearly for hiring an attorney with absolutely zero knowledge of MRTA and the law. I was not trying to scare them with this knowledge but help them. I even found two attorneys with vaste knowledge of MRTA and they preferred a friend of a member of the Board. It is always bad business to utilize friends as vendors and attorneys.

I think most of your questions indicate that other bloggers are using MRTA to escape the responsibility of being an HOA member. From what I read about Kevin and Gwen, they tried very hard to make sense of all of this and even took it to court. They tried. It gets to be after a while, that the Board and apathetic homeowners are not worth my time and effort. I do not want to use my hard earned money fueling their inadequacies and inappropriate behavior. The liability is huge on what they are doing and not doing. Do I want to be responsible for that behavior and those actions?

It is a bad situation - if they acted properly and did what they were suppose to, I would be a part of the HOA gladly.

You must live in a wonderful association that does everything correctly and without fault. Please teach us all how that happens.
GwenG
(Florida)

Posts:592


09/12/2015 8:57 AM  
VickiC3: The answers are in your corporate documents, your expired Declaration and FS720.4xx. The statute is a general guideline and contains basic instructions when it says:

720.405(6) A majority of the affected parcel owners must agree in writing to the revived declaration of covenants and governing documents of the homeowners’ association or approve the revived declaration and governing documents by a vote at a meeting of the affected parcel owners noticed and conducted in the manner prescribed by s. 720.306. Proof of notice of the meeting to all affected owners of the meeting and the minutes of the meeting recording the votes of the property owners shall be certified by a court reporter or an attorney licensed to practice in the state.

The statute also states that you must have 50% affirmative votes-plus ONE--to ratify a revitalization submission. That would be 20--half of 37--19 + 1. (You cannot "round down" a voting parcel).

Now, you must comply with 720.306 which concerns meetings--notices, quorums. In large part, this section defers to your corporate documents, so you must refer to your Articles of Incorporation and Bylaws to determine which document is superior and rules. Were ALL your voting procedures and notice and reporting requirements met?

The provisions that are "key" in 720.405 concerning the manner of voting do not address such things as manner of delivery of ballots. Generally, these requirements come from your own governing documents and their requirements for voting that was in effect BEFORE expiration is what must be done during the revitalization process. Members are entitled to be balloted by the same voting process after expiration as before expiration.

This is a tricky area and I have been informed by an attorney practiced in this that associations often fail to ratify the DEO-approval because of defects in process of ballot and consent. Some attempt it multiple times. If there is a large contingent who object to revitalization (as there are in your HOA), there can be administrative challenges if DEO approves the revitalization package (suggest you hire an attorney for this). Administrative challenge is conducted per another Florida statute and must be done 21 days after the membership is notified of the results of revitalization.

In a nutshell, if your documents provide that a postmarked voting envelope must accompany a ballot to be a valid vote, then you might have a basis on which to challenge an approval by the DEO. If a ballot was delivered OUTSIDE your documents i.e. being left on a doorstep, the ownerS might be asked to sign an affidavit to that effect to validate the consent(s). The DEO does not require that this information is submitted and will not be aware that your voting provisions were violated by your board. The DEO will simply accept an affidavit certified by the board that all was kosher.

Did you submit an Official Records Request to see the envelopes supposedly at the attorneys? (This is YOUR record; the attorney is only the custodian and this information must be provided to you if you request it and certify the mail.) Did you also verify that the persons signing the ballot were the actual owners and they knew what they were being asked to sign? Did ALL owners on the deed have their signature notarized? For this, you must actually examine the current deed on record. In the case of my HOA, there were a lot of absentee owners and sloppy deeds that needed attention before a valid vote could be recorded.

If you are looking to negate that single qualifying vote, the easiest challenge is now and then certify your objection in writing to the board. It will become part of the Official Record and be helpful to your attorney to file a timely administrative challenge.

(Disclaimer: I am not an attorney blah blah blah and the information here should be regarded as information, opinion and entertainment and not be used as basis for legal action.)
GenoS
(Florida)

Posts:2435


09/12/2015 2:27 PM  
Posted By KevinK7 on 09/12/2015 2:38 AM
I hear about how MRTA is terrible but it is really roughly one page of simple instructions.

Nearing expiration? Preserve

Expired? Revitalize.

Bingo. No other options. There's a deadline on preserving. Miss it? Revitalize because it's too late to preserve.
KevinK7
(Florida)

Posts:1342


09/12/2015 3:10 PM  
Posted By GenoS on 09/12/2015 2:27 PM
Posted By KevinK7 on 09/12/2015 2:38 AM
I hear about how MRTA is terrible but it is really roughly one page of simple instructions.

Nearing expiration? Preserve

Expired? Revitalize.

Bingo. No other options. There's a deadline on preserving. Miss it? Revitalize because it's too late to preserve.


my neighborhood did neither. But even if they did the restrictions mentioned by my deed mention no hoa. So basically they would never be able to add me to a future hoa unless I sign my rights away. Based on their actions and behaviors I wont.
SusanE6
(Florida)

Posts:102


09/13/2015 7:29 AM  
My deed /title are over 30 years old and mention nothing about the covenants and or page and book #. Covenants are over 30 years old. So, the titles that are extinguished - most were preserved incorrectly by the Association attorney. I am repeating myself but can the Association attorney have homeowners that are extinguished sign an affidavit stating they wish to return to the Association? If the only two ways to go are :

1) Preservation

2) Revitalization

How can they just sign a piece of paper and be welcomed back into the fold? And if I am the only one who does not sign and my property is extinguished - what does this mean for the Association and me? If the attorney had these homeowners sign an affidavit and it has the original covenants book and page #; on the preservation there is a new book and page #. I thought the original covenants were extinguished and neede to have a new book and page #? Every time I think I know what MRTA is about, I get somewhat confused.

If the attorney for the Association stated that homeowners that did not sign the affidavit are not members of the Association, what am I to think?

Sorry for the repeated questions but maybe this might help others that were incorrectly preserved or revitalized. MRTA may seem fairly simple but Association lawyers have completely different interpretations.

Thank you again.
DonB11
(Florida)

Posts:4


09/13/2015 7:54 AM  
The issue of if your covenants have expired is really complex. I would venture to guess that your deed's legal description says somewhere "as recorded in Platbook x, Page y" of the records of your county, Florida. You then need to go to the courthouse and look up that Platbook and page. You are most likely to see on that Plat Book that the book and page of your covenants is cited on that Platbook page. And if so, you are not expired, nor anyone in that HOA. In my research it's a rare Platbook that doesn't cite where the covenants and restrictions are recorded as the attorneys who prepare those documents are careful to record the Platbook and restrictions at the same time. I'd be curious to see what you find when going to the courthouse Platbook.
SusanE6
(Florida)

Posts:102


09/13/2015 10:38 AM  
Don:

I am not sure what you mean but I had a title company search out my title and it is extinguished as well as the covenants.
KevinK7
(Florida)

Posts:1342


09/13/2015 11:33 AM  
In my opinion I think that it is a matter that is somewhat untested. I am sure if restrictions were preserved but excluded some properties the owners of those properties could sign a document agreeing to abide by the restrictions and HOA but I imagine such agreement could be challenged in court by future homeowners. How can a property owner essentially create a contract that will subject future owners to terms that theoretically end when one party of that agreement exits theneighborhood. I would find this similar to my neighborhood where the developer granted authorium to a corporate entity but once they sold their remaining interest in the neighborhood any agreement they made would no longer be binding.

The only way to make this somewhat foolproof is to re-preserve with 100% approval from the get-go. And maybe preserve more frequently since I do not believe the law limit's when preservation can commence.
GwenG
(Florida)

Posts:592


09/13/2015 12:48 PM  
Posted By KevinK7 on 09/13/2015 11:33 AM
In my opinion I think that it is a matter that is somewhat untested. I am sure if restrictions were preserved but excluded some properties the owners of those properties could sign a document agreeing to abide by the restrictions and HOA but I imagine such agreement could be challenged in court by future homeowners. How can a property owner essentially create a contract that will subject future owners to terms that theoretically end when one party of that agreement exits theneighborhood. I would find this similar to my neighborhood where the developer granted authorium to a corporate entity but once they sold their remaining interest in the neighborhood any agreement they made would no longer be binding.

The only way to make this somewhat foolproof is to re-preserve with 100% approval from the get-go. And maybe preserve more frequently since I do not believe the law limit's when preservation can commence.





I agree. But, did you mean 100% revitalization (as opposed to preservation) if done under the umbrella of 720? I think it is only a matter of time before some HOA attorney is going to litigate the constitutionality of revitalizing HOA documents with 50% plus 1 affirmative votes.

Individually, homeowners can put any (lawful) restriction on their property that they desire but if a future buyer/owner does not wish to accept the restrictions, they can either Not Buy or require the homeowner remove the restrictions before they convey title. Presumably, that would be be the benefit of revitalization under 720 because that brings back the previous "unlimited" deed restrictions which cannot be removed by an individual who consented to revitalization. Presumably, individual reimposition would have no such constraint and could be removed at the will of the titleholder.

This is a troublesome area in an environment where lawyers, much less real estate practitioners (and certainly not the public) are knowledgeable enough to appreciate this aspect of title claims on real estate. In the future, we will be see more and more "checkboard" HOA's where owners have not consented to re-encumbrance by their HOA or owners have been prevailed upon (coerced) by HOA attorneys to reimpose old Declarations their property individually. New buyers who buy an unencumbered property in an HOA have no legal obligation to pay assessments, but will probably be hauled into court anyway by the HOA-another legal mess for Susan's community to deal with down the road.

Kevin; how do you and your HOA deal with your not paying assessments? Was this incorporated into your legal settlement? Do you use any amenities paid for by the HOA? I am very curious about how this can work because of a developing problem in my community where partial withholding of assessments may be an issue in the future.

The above is my opinion-I am not an attorney and one should consult an HOA attorney experienced with MRTA before making any decisions involving their HOA and MRTA.
GenoS
(Florida)

Posts:2435


09/13/2015 6:27 PM  
Posted By DonB11 on 09/13/2015 7:54 AM
I would venture to guess that your deed's legal description says somewhere "as recorded in Platbook x, Page y" of the records of your county, Florida. You then need to go to the courthouse and look up that Platbook and page.

That's how ours are. Deed refers to Lot Number on a specific Plat and the Plat refers to specific Book and Page number where the covenants and restrictions can be found.

I would only add that it's not necessary to physically go anywhere to look up Plats and Official Records. Many counties in Florida - maybe all of them - have online systems where the public can pull up just about any document, including plats.
GenoS
(Florida)

Posts:2435


09/13/2015 6:42 PM  
Posted By KevinK7 on 09/13/2015 11:33 AM
In my opinion I think that it is a matter that is somewhat untested. I am sure if restrictions were preserved but excluded some properties the owners of those properties could sign a document agreeing to abide by the restrictions and HOA but I imagine such agreement could be challenged in court by future homeowners. How can a property owner essentially create a contract that will subject future owners to terms that theoretically end when one party of that agreement exits theneighborhood.

That's how I see it as well. For a property to be revitalized into an association it has to happen by way of a vote. There is no after-the-fact "affidavit" that could ever serve to legally encumber a property with deed restrictions.

The property is either revitalized and re-encumbered as a result of the vote, or it's not. No simple affidavit would suffice. At least I don't think so (and I'm not a lawyer either yada yada yada). A revitalization set of documents MUST list EVERY property to be revitalized. How does an owner whose property is not on that list voluntarily sign up to re-encumber their title with deed restrictions without being in the revitalization docs in the first place? Maybe there's some legal trickery that could make that happen. More likely, attorneys are selling this advice to people and as long as nobody calls them on it they're getting away with it.

Gwen is probably right, too, when she talks about a possible future legal challenge to re-encumbering a property without consent because 50% + 1 have voted for it. That would be an interesting case. Contract law is held in very high regard in Florida. On the other hand the preamble to the HOA and Condo laws make it clear that the legistlature favors common interest developments and associations for specific reasons. Not holding my breath for such a case, though. Odds are by the time it gets filed (if ever) I'll no longer be living in an HOA.
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