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Subject: "Voluntary" HOA in Florida
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GeorgeS21
(Florida)

Posts:659


04/09/2018 12:15 PM  
Hi All,

I am a new Board member of a 189 home (single family PUD) in Florida, developed circa 1995. The neighborhood is moderately priced and residents are, on average, 65-85 years or age. The only common areas are an island with a single sign, the verges on both sides of the road where the sign is, and a 1/20th acre "park" with three picnic benches. The island and verges are maintained by basic mowing, trimming and landscaping. The park is kept clean and left somewhat natural with some grass being mowed.

There are a couple of issues - I would appreciate your thoughts!

1. CC&Rs
- are very clear that membership in the Association is voluntary - which supposedly was pretty common in Florida during that time frame. The CC&Rs are also clear - "The covenants and restrictions of this Declaration shall run with and bind the land for a term of twenty (20) years from the date this Declaration is recorded, after which time they shall be extended automatically for successive period of ten (10) years."
- while the Board has been trying to maintain the level of effort on CC&R enforcement, it has been slowed by loss of Board members due to death, and significant health issues
- approximately 42% of the community pays the dues that are assessed each year - the other 58% freeloads

What I have recommended re the CC&Rs:
- increase membership with personal contact, good communications, welcome to the neighborhood visits (sadly, there is a high turnover rate), invitations to attend Board meetings, social events, and by following, as closely a possible, all governing documents
- (accurately, I hope) that while it is a voluntary association, the covenants are in effect and the Board (via the Architectural Control Committee) should evenly and consistently enforce them - keeping contact friendly, consistently using a process for initial and follow-up notification of violations, and suing for compliance only as a last resort. I even considered, given the confusion, asking the Board to sue me, in order to establish a precedent
- the current dues are less than $100 a year with 42% of the neighborhood paying; I strongly recommended that the Board lower the dues to match the budget needs as membership increases

2. ByLaws (an unusual circumstance, somewhat related to inattention, but mainly to aging and death of members of the Association)
- the ByLaws being carried around by the current President are dated 1998, but as I research the neighborhood's records, I found nothing recorded (not unusual) - there are no stamps, names, signatures, etc, of any kind -simply the date on the last page
- I contacted the original developer who was still in business - they provided the turnover documents, which included the ORIGINAL ByLaws, dated 1995, which are quite different from the 1998 version - the original ByLaws allowed the Board of Directors to modify these ByLaws (without the vote of the community)
- ALL administrative records were completely lost several years ago when the then-president died unexpectedly and the records were discarded when his house was cleaned out - ALL minutes of ALL meetings from 1995-2016 are lost
- so, there are no records of any kind to substantiate the legal existence of the 1998 ByLaws
- the 1998 ByLaws have components that are clearly illegal under Florida law (ex: only Board members can attend Board meetings)

What I have recommended re the ByLaws:
- the current Board form a committee to research how the 1998 ByLaws came into being
- if they cannot find any records to substantiate their legal existence, that the Board rewrite the originals to closely resemble the 1998 version, fixing only those things that were incorrectly included
- the current Board use the original ByLaws as basis for voting on the new ones


Would appreciate your thoughts, especially if you have some experience in these sorts of circumstances!

Thanks!
DouglasK1
(Florida)

Posts:1233


04/09/2018 12:27 PM  
You've got quite a lot to deal with!

If the bylaws allow the board to modify them, then it seems the board has pretty free rein to use whatever starting point they want and create a new set that works for the association. Our original bylaws from around 1995 were not recorded, and might have been lost too except for myself and some other original owners who had them from our closings. The board had lost them, and apparently didn't even realize that there were docs other than the CCRs. I would suggest recording yours when you get them adopted, while not required, there is no reason they can't be recorded.

I'm not too familiar with voluntary associations, but are you sure your covenant restrictions apply to non-members?

Since suing can be expensive, I would suggest that as a last resort.

Losing records can happen in a self managed association, we have a good set going back about 5 years, but there are some gaps before then.

Escaped former treasurer and director of a self managed association.
GeorgeS21
(Florida)

Posts:659


04/09/2018 12:33 PM  
Douglas,

Yeah, no kidding - another extenuating factor includes the broad lack of ability to communicate via email - even with the Board members - working this one hard, as even the mailings for dues is painful cost.

Yes - Declaration of Covenants, Conditions and Restrictions very clear that they go with the land - says so on all the deeds. This is where a lot of the property owners get confused, though - they try and connect "membership" with the CC&Rs. I believe I am accurate in this regard, but more than willing to listen to input!

DouglasK1
(Florida)

Posts:1233


04/09/2018 12:45 PM  
Posted By GeorgeS21 on 04/09/2018 12:33 PM
Yes - Declaration of Covenants, Conditions and Restrictions very clear that they go with the land - says so on all the deeds. This is where a lot of the property owners get confused, though - they try and connect "membership" with the CC&Rs. I believe I am accurate in this regard, but more than willing to listen to input!


The best anyone here can do is to let you know what is typical, which may or may not match your docs, unless you post a link to them and somebody has the time to give their two cents. If you have specific questions, then having an attorney review and give an opinion is probably your best option. If you have read them and feel comfortable with your understanding, then I'd go with that, if somebody else feels differently they can fight it legally if they want to go that route. Keep in mind that people threaten to sue a lot more than they actually sue, so don't get worked up about threats to sue.

Escaped former treasurer and director of a self managed association.
TimB4
(Virginia)

Posts:15999


04/09/2018 2:58 PM  
George,

As others have said, another name for the CC&Rs would be deed restrictions. Simpler to easements attached to the deed, the CC&Rs say what can and can not be done with the property.

Bylaws, as you are finding out, typically are not filed. Condominiums might have them filed with the CC&Rs. Some States may have an initial set filed with the corporation commission when the corporation was formed. However, it's typical that they are not filed anywhere except within the corporate records.

We went through a period of lost records as well. We were able to recover/recreate some records by soliciting past board members for any records they might have. A restatement of Bylaws would be a good idea. This is where the Board simply rewrites the Bylaws and certify them to be true and accurate to the best of their knowledge.

You may want to consider publishing all the governing documents (including resolutions) in a book that is provided to all. We have such a book, approx 200 pages, which costs us about $35 per book when printing 10 at a time. Costs can be down to $20 when printing in quantity.
GenoS
(Florida)

Posts:2430


04/09/2018 3:28 PM  
George, keep in mind that Florida's MRTA statute will begin to extinguish your deed restrictions starting in 2025 (30 years after 1995) unless someone acts to preserve them. I'm not sure at all how to proceed there as a voluntary HOA. Regardless, unless something is done those deed restrictions will expire starting in about 7 years.

From what you've described I also think your board probably has free rein to enact new bylaws as it sees fit.

More importantly in my opinion (note that I'm not a lawyer) is the fact that if your association is voluntary then you don't fall under FS 720 at all (mandatory membership required) and if the bylaws say only board members may attend board meetings then that is fine and dandy. Is the association incorporated? If it's incorporated as a not-for-profit corporation then you're subject to FS 617 only and FS 720 does not apply.
GeorgeS21
(Florida)

Posts:659


04/18/2018 9:39 AM  
Thanks, Geno,

Went back and read several articles re MRTA as well as several threads on HOAT, including Gwen's thoughts.

It seems to me the smart thing, given a suitable Board makeup, is to simply abide by the MRTA requirements and act to preserve them - Florida statute requirements of a 2/3 Board vote is reasonable.

HOWEVER, our Association being voluntary, makes it a bit fuzzier - we aren't exactly covered by Chapter 720, but two property management company "experts" believe certain components of governance fall into Chapter 617 and certain components in Chapter 720 - they said it wasn't their first ball game regarding this issue. No legal counsel yet, and we do have some time - neighborhood first Phase signed on 1 April 1993 - so, I'm thinking to be safe, NLT 1 Jan 2023.

Reference the Bylaws - yeah, agree - unless we find documents showing there was a vote - we will restate new Bylaws by following the direction in the first Bylaws which allows the Board to develop and pass. We would then record to lock them down.

Reference attendance at BoD meetings - since we are always trying to get more membership, it seems reasonable to communicate as effectively as possible in order to convince anyone of the need for them to be a member of their own neighborhood - sunshine always helps - makes some meetings more contentious than others, but yields a lot more trust.

If anyone has ANY thoughts on this, would be great to share ...we will end up getting legal assistance on the filing, but would prefer not to burn through non-existent money right now.

Please keep providing your experience and knowledge!!!!
RobertM25
(Florida)

Posts:11


05/30/2018 8:53 AM  
Welcome Geroges21

I am president of Grandin Lake Shores Association, Inc. We went through the same issues in 2010. Our Association us formed 1964. I formed a Committee for governing documents we met one or twice a month. We took a look at all the Covenants and By-laws one by one. The Board made the changes to the by- laws that we need to handled, but the covenants changes had to be approved by a majority of the Members IN GOOD STANDING. Then all the changes were then recorded with County of the Putnam in Florida. Our website is grandinlakeshores.org visit some time. and YES TIM Has been very helpful.
GeorgeS21
(Florida)

Posts:659


05/30/2018 5:01 PM  
Hi,

My understanding is that modification of the CCRs requires 100% approval by property owners.

Bylaws modifications sometimes require a certain percentage of owners, as well.
TimB4
(Virginia)

Posts:15999


05/30/2018 7:30 PM  
Robert,

Please review the posting rules:

This is a positive place for community association leaders to share ideas and learn. This forum is for community association Boards, Committees, Volunteers & HOA Professionals to discuss topics concerning their association duties.

Topics from individual homeowners, who are not acting as association volunteers, may be addressed if the person has come here to learn in a positive way.

We have only a few other rules:

(1) Post any relevant topic you like, but please keep it clean, helpful, positive and friendly.

(2) No Selling: No solicitation, advertising, or selling of any kind is allowed here, except for occasional announcements from official site sponsors.

(3) No Mention of Community/Company/Person Names: In order to fairly enforce (2) and prevent liability, we do not allow the mentioning of any community name, company name or product. Please also do not post the full name of any person.
RobertM25
(Florida)

Posts:11


06/07/2018 8:15 AM  
Thanks Tim I was just wanting to aid someone at a time of need .Will keep it all in mind.
GenoS
(Florida)

Posts:2430


06/07/2018 2:13 PM  
Robert, the only problem is your post names your association. Recounting your experiences with amending your documents is fine, it's the name dropping that is against the site's posting rules. There's nothing else to "keep in mind".
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Forums > Homeowner Association > HOA Discussions > "Voluntary" HOA in Florida



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