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Subject: Florida's Marketable Record Title Act (MRTA) Applicability
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Author Messages
GeorgeS21
(Florida)

Posts:3806


08/12/2018 10:51 AM  
Hi All,

Quick summary that many of you remember, but repeated, below, just in case.

189 single family homes in Florida. Association is voluntary. D, CC&Rs recorded and deeded with each property. Property owners of the 189 homes also jointly own a park of about 1 acre that was deeded by the developer. HOA Board operates on an annual budget of about $7-8K. About 58% of the property owners pay the annual dues of $85. First phase of the PUD was recorded in 1993.

Question - given the voluntary nature of the HOA, how do you interpret Florida law (Statute, Chapter 712 - http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0712/0712.html) regarding need and procedure to "preserve?"

Thanks!
GwenG
(Florida)

Posts:632


08/12/2018 1:33 PM  
MRTA law, FS712, was enacted decades before revisions were adopted permitting HOA's to preserve/revitalize and it applies to all parcels except those few specifically exempted. POA's that are NOT subject to FS720 can preserve/revitalize under FS712.12, a newly-enacted provision which allows non-mandatory HOA's to preserve or revitalize using the processes of 720.4XX.

Thus, your voluntary community can use the notice in FS712 to preserve your covenants, or, you could use the revitalization process in FS720 to revitalize expired covenants. At first glance, as you described, the community is still years away from expiration.


GeorgeS21
(Florida)

Posts:3806


08/12/2018 3:13 PM  
Thanks, Gwen. That was my read, as well, but I’m pretty close to the problem, so appreciate your thoughts.

I would consider doing it early in this case because of our age demographic and the spotty board performance over the last 20 years.

I think we can do this ourselves - I found one community’s version ... I may just plug our info in and see if it works.

From my read this does not require a special meeting, but does require the community to be notified of the board meeting with it on the agenda?
GenoS
(Florida)

Posts:4276


08/12/2018 3:24 PM  
Posted By GeorgeS21 on 08/12/2018 3:13 PM
From my read this does not require a special meeting, but does require the community to be notified of the board meeting with it on the agenda?

In an FS 720 HOA the board can do this on its own without any special meeting or membership vote required. That probably applies to non-720 HOAs as well.
GeorgeS21
(Florida)

Posts:3806


08/12/2018 7:00 PM  
Hi Geno,

Thanks ...I didn’t see any language requiring “special” meeting for the Board, either.

Looks pretty straightforward ...

Do you think we could do it without an attorney?
GeorgeS21
(Florida)

Posts:3806


08/30/2018 7:20 AM  
I still can't find a clear path to "Preserve" our CC&Rs via our voluntary association construct (FS 617). The latest revisions to FS712 and FS720 make it very easy for POAs to "preserve" their CCR's ...but, there doesn't appear to be a clear path for a voluntary organizations.

This is a BIG DEAL so I am continuing to lean into it ... I need to get this done, if it is possible, as soon as possible - while we are about 5 years early wrt the 30 years timeline, the neighborhood grows older every day with less and less interest by the owners.

I apologize if this is long, but I can't figure out a way to speak to it without the FS excerpts, below.

Could anyone with suitable interest to drag through all of this, please provide your thoughts?

Thanks.

712.01 Definitions.—As used in this chapter, the term:
(1) “Community covenant or restriction” means any agreement or limitation contained in a document recorded in the public records of the county in which a parcel is located which:
(a) Subjects the parcel to any use restriction that may be enforced by a property owners’ association; or
(b) Authorizes a property owners’ association to impose a charge or assessment against the parcel or the parcel owner.
(2) “Covenant or restriction” means any agreement or limitation contained in a document recorded in the public records of the county in which a parcel is located which subjects the parcel to any use or other restriction or obligation.
(3) “Parcel” means any real property that is subject to any covenant or restriction of a property owners’ association.
(4) “Person” includes the singular or plural, natural or corporate, private or governmental, including the state and any political subdivision or agency thereof as the context for the use thereof requires or denotes and including any property owners’ association.
(5) “Property owners’ association” means a homeowners’ association as defined in s. 720.301, a corporation or other entity responsible for the operation of property in which the voting membership is made up of the owners of the property or their agents, or a combination thereof, and in which membership is a mandatory condition of property ownership, or an association of parcel owners which is authorized to enforce a community covenant or restriction that is imposed on the parcels.
(6) “Root of title” means any title transaction purporting to create or transfer the estate claimed by any person which is the last title transaction to have been recorded at least 30 years before the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded.
(7) “Title transaction” means any recorded instrument or court proceeding that affects title to any estate or interest in land and that describes the land sufficiently to identify its location and boundaries.
History.—s. 1, ch. 63-133; s. 11, ch. 65-420; s. 1, ch. 81-242; s. 1, ch. 97-202; s. 56, ch. 2000-258; s. 16, ch. 2000-317; s. 2, ch. 2018-55.

++++++++++++++
712.05 Effect of filing notice.—
(1) A person claiming an interest in land or other right subject to extinguishment under this chapter may preserve and protect such interest or right from extinguishment by the operation of this chapter by filing for record, at any time during the 30-year period immediately following the effective date of the root of title, a written notice in accordance with s. 712.06.
(2) A property owners’ association may preserve and protect a community covenant or restriction from extinguishment by the operation of this chapter by filing for record, at any time during the 30-year period immediately following the effective date of the root of title:
(a) A written notice in accordance with s. 712.06; or
(b) A summary notice in substantial form and content as required under s. 720.3032(2); or an amendment to a community covenant or restriction that is indexed under the legal name of the property owners’ association and references the recording information of the covenant or restriction to be preserved. Failure of a summary notice or amendment to be indexed to the current owners of the affected property does not affect the validity of the notice or vitiate the effect of the filing of such notice.
(3) A notice under subsection (1) or subsection (2) preserves an interest in land or other right subject to extinguishment under this chapter, or a covenant or restriction or portion of such covenant or restriction, for not less than 30 years after filing the notice unless the notice is filed again as required in this chapter. A person’s disability or lack of knowledge of any kind may not delay the commencement of or suspend the running of the 30-year period. Such notice may be filed for record by the claimant or by any other person acting on behalf of a claimant who is:
(a) Under a disability;
(b) Unable to assert a claim on his or her behalf; or
(c) One of a class, but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.
The property owners’ association or clerk of the circuit court is not required to provide additional notice pursuant to s. 712.06(3) for a notice filed under subsection (2). The preceding sentence is intended to clarify existing law.
(4) It is not necessary for the owner of the marketable record title, as described in s. 712.02, to file a notice to protect his or her marketable record title.
History.—s. 5, ch. 63-133; s. 798, ch. 97-102; s. 3, ch. 97-202; s. 1, ch. 2003-79; s. 7, ch. 2014-133; s. 3, ch. 2018-55.

+++++++++++++++++++
712.12 Covenant or restriction revitalization by parcel owners not subject to a homeowners’ association.—
(1) As used in this section, the term:
(a) “Community” means the real property that is subject to a covenant or restriction that is recorded in the county where the property is located.
(b) “Covenant or restriction” means any agreement or limitation imposed by a private party and not required by a governmental agency as a condition of a development permit, as defined in s. 163.3164, which is contained in a document recorded in the public records of the county in which a parcel is located and which subjects the parcel to any use restriction that may be enforced by a parcel owner.
(c) “Parcel” means real property that is used for residential purposes and that is subject to exclusive ownership and any covenant or restriction that may be enforced by a parcel owner.
(d) “Parcel owner” means the record owner of legal title to a parcel.
(2) The parcel owners of a community not subject to a homeowners’ association may use the procedures set forth in ss. 720.403-720.407 to revive covenants or restrictions that have lapsed under the terms of this chapter, except:
(a) A reference to a homeowners’ association or articles of incorporation or bylaws of a homeowners’ association under ss. 720.403-720.407 is not required to revive the covenants or restrictions.
(b) The approval required under s. 720.405(6) must be in writing, and not at a meeting.
(c) The requirements under s. 720.407(2) may be satisfied by having the organizing committee execute the revived covenants or restrictions in the name of the community.
(d) The indexing requirements under s. 720.407(3) may be satisfied by indexing the community name in the covenants or restrictions as the grantee and the parcel owners as the grantors.
(3) With respect to any parcel that has ceased to be governed by covenants or restrictions as of October 1, 2018, the parcel owner may commence an action by October 1, 2019, for a judicial determination that the covenants or restrictions did not govern that parcel as of October 1, 2018, and that any revitalization of such covenants or restrictions as to that parcel would unconstitutionally deprive the parcel owner of rights or property.
(4) Revived covenants or restrictions that are implemented pursuant to this section do not apply to or affect the rights of the parcel owner which are recognized by any court order or judgment in any action commenced by October 1, 2019, and any such rights so recognized may not be subsequently altered by revived covenants or restrictions implemented under this section without the consent of the affected parcel owner.
History.—s. 6, ch. 2018-55.

++++++++++++
720.301 Definitions.—As used in this chapter, the term:
(1) “Assessment” or “amenity fee” means a sum or sums of money payable to the association, to the developer or other owner of common areas, or to recreational facilities and other properties serving the parcels by the owners of one or more parcels as authorized in the governing documents, which if not paid by the owner of a parcel, can result in a lien against the parcel.
(2) “Common area” means all real property within a community which is owned or leased by an association or dedicated for use or maintenance by the association or its members, including, regardless of whether title has been conveyed to the association:
(a) Real property the use of which is dedicated to the association or its members by a recorded plat; or
(b) Real property committed by a declaration of covenants to be leased or conveyed to the association.
(3) “Community” means the real property that is or will be subject to a declaration of covenants which is recorded in the county where the property is located. The term “community” includes all real property, including undeveloped phases, that is or was the subject of a development-of-regional-impact development order, together with any approved modification thereto.
(4) “Declaration of covenants,” or “declaration,” means a recorded written instrument or instruments in the nature of covenants running with the land which subject the land comprising the community to the jurisdiction and control of an association or associations in which the owners of the parcels, or their association representatives, must be members.
(5) “Department” means the Department of Business and Professional Regulation.
(6) “Developer” means a person or entity that:
(a) Creates the community served by the association; or
(b) Succeeds to the rights and liabilities of the person or entity that created the community served by the association, provided that such is evidenced in writing.
(7) “Division” means the Division of Florida Condominiums, Timeshares, and Mobile Homes in the Department of Business and Professional Regulation.
(8) “Governing documents” means:
(a) The recorded declaration of covenants for a community and all duly adopted and recorded amendments, supplements, and recorded exhibits thereto;
(b) The articles of incorporation and bylaws of the homeowners’ association and any duly adopted amendments thereto; and
(c) Rules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto.
(9) “Homeowners’ association” or “association” means a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel. The term “homeowners’ association” does not include a community development district or other similar special taxing district created pursuant to statute.
(10) “Member” means a member of an association, and may include, but is not limited to, a parcel owner or an association representing parcel owners or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee.
(11) “Parcel” means a platted or unplatted lot, tract, unit, or other subdivision of real property within a community, as described in the declaration:
(a) Which is capable of separate conveyance; and
(b) Of which the parcel owner, or an association in which the parcel owner must be a member, is obligated:
1. By the governing documents to be a member of an association that serves the community; and
2. To pay to the homeowners’ association assessments that, if not paid, may result in a lien.
(12) “Parcel owner” means the record owner of legal title to a parcel.
(13) “Voting interest” means the voting rights distributed to the members of the homeowners’ association, pursuant to the governing documents.
History.—s. 33, ch. 92-49; s. 52, ch. 95-274; s. 4, ch. 99-382; s. 44, ch. 2000-258; s. 16, ch. 2004-345; s. 13, ch. 2004-353; s. 62, ch. 2008-240; s. 16, ch. 2011-196; s. 15, ch. 2015-97.
Note.—Former s. 617.301.

++++++++++++
720.3032 Notice of association information; preservation from Marketable Record Title Act.—
(1) Any property owners’ association desiring to preserve covenants from potential termination after 30 years by operation of chapter 712 may record in the official records of each county in which the community is located a notice specifying:
(a) The legal name of the association.
(b) The mailing and physical addresses of the association.
(c) The names of the affected subdivision plats and condominiums or, if not applicable, the common name of the community.
(d) The name, address, and telephone number for the current community association management company or community association manager, if any.
(e) Indication as to whether the association desires to preserve the covenants or restrictions affecting the community or association from extinguishment under the Marketable Record Title Act, chapter 712.
(f) A listing by name and recording information of those covenants or restrictions affecting the community which the association desires to be preserved from extinguishment.
(g) The legal description of the community affected by the covenants or restrictions, which may be satisfied by a reference to a recorded plat.
(h) The signature of a duly authorized officer of the association, acknowledged in the same manner as deeds are acknowledged for record.
(2) Recording a document in substantially the following form satisfies the notice obligation and constitutes a summary notice as specified in s. 712.05(2)(b) sufficient to preserve and protect the referenced covenants and restrictions from extinguishment under the Marketable Record Title Act, chapter 712.
Notice of (Name of association) under s. 720.3032, Florida Statutes, and notice to preserve and protect covenants and restrictions from extinguishment under the Marketable Record Title Act, chapter 712, Florida Statutes.

Instructions to recorder: Please index both the legal name of the association and the names shown in item 3.
1. Legal name of association:
2. Mailing and physical addresses of association:
3. Names of the subdivision plats, or, if none, common name of community:
4. Name, address, and telephone number for management company, if any:
5. This notice does does not constitute a notice to preserve and protect covenants or restrictions from extinguishment under the Marketable Record Title Act.
6. The following covenants or restrictions affecting the community which the association desires to be preserved from extinguishment:
(Name of instrument)
(Official Records Book where recorded & page)
(List of instruments)
(List of recording information)
7. The legal description of the community affected by the listed covenants or restrictions is: (Legal description, which may be satisfied by reference to a recorded plat)
This notice is filed on behalf of (Name of association) as of (Date) .
(Name of association)
By:
(Name of individual officer)
(Title of officer)
(Notary acknowledgment)
(3) A copy of the notice, as filed, must be included as part of the next notice of meeting or other mailing sent to all members.
(4) The original signed notice must be recorded in the official records of the clerk of the circuit court or other recorder for the county.
History.—s. 8, ch. 2018-55.
GeorgeS21
(Florida)

Posts:3806


08/30/2018 12:04 PM  
Bump?
GwenG
(Florida)

Posts:632


08/30/2018 1:45 PM  
GeorgeS21; Was there ever anything in your covenants that made any behavior or parcel condition mandatory? Do the covenants authorize and mandate membership in an owners association? Is there any common interest that is managed by your association? Is this a sunsetting situation for covenants that has a renewal provision? If not, it is unclear to me whether your voluntary POA can preserve covenants at all and I sure wouldn't go forward without competent legal opinion. Sounds more like a social club or civic improvement organization.

Individuals could, however, record the desired covenants against their own parcels for the duration of their ownership and preserve the right of a future buyer to either be free of the POA covenants or voluntarily preserve the covenants using the boilerplate in FS712.06. I am just a bit confused on the value of covenants on parcels at all if the membership is voluntary and that burden can be removed at will.
GeorgeS21
(Florida)

Posts:3806


08/30/2018 2:34 PM  
Gwen,

There are four phases , ALL have recorded CC&Rs ... there is a common area park of about an acre co-owned and deeded indivisbly to ALL of the property owners with total restriction to be able to sell it or develop it, there is entrance property and signage and electronic and water ... think of this as a typical HOA with fully linked CC&Rs via every deed ... EXCEPT the language in each of the CC&Rs (all identical) says "voluntary" HOA. Yeah - silly, right?

Your questions:
- Was there ever anything in your covenants that made any behavior or parcel condition mandatory? (Yes, fully recorded CC&Rs with behavior, architectural control, property condition and look, etc - all deeds are connected and the development is a PUD)
- Do the covenants authorize and mandate membership in an owners association? (No, "voluntary")
- Is there any common interest that is managed by your association? (Yes, one acre indivisibly owned park, common entrance property, etc)
- Is this a sunsetting situation for covenants that has a renewal provision? (No, CC&Rs were for 20 years with automatic 10 year extensions
- Sounds more like a social club or civic improvement organization. (while covered by FS 617, it is certainly an HOA by CC&R wording, Bylaws, etc)
- I am just a bit confused on the value of covenants on parcels at all if the membership is voluntary and that burden can be removed at will. (to my knowledge, cannot be removed)

There are hundreds of these in Florida - bad idea at the time and still a bad idea ...

Here's some language:

"Article I Definitions

Section 1. Association shall means and refer to that certain homeowners' association organized by Declarant, membership in which by the Owners of Lots shall be voluntary, and the organization of which was for purposes of causing the street lighting serving the Lots to be operated continuously as well as maintaining, in cooperation with the owners of Lots in XXX, Phases etc, the park, entrance island , signage and landscaping thereof.

Article VI General Provisions
Section 1. Any Owner, the homeowners' association or the Architectural Control Committee shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions and covenants imposed by the provisions of this Declaration."
GwenG
(Florida)

Posts:632


08/30/2018 4:46 PM  
That language is whack. Just out of curisity are there two classes of members defined in the Articles and Bylaws?

IMO you have common property which all owners have to maintain and are a mandatory HOA if you can lien and foreclose for failure to pay assessments. Is that language in the Covenants?
GeorgeS21
(Florida)

Posts:3806


08/30/2018 4:59 PM  
There is no ability to fine, lien, or foreclose ...dues are not mandatory.

But, there are connected deeds via the CCRs.

Yep - it’s crazy ...

And, there are hundreds of these types of situations across Florida.

Now, as you postulate ...IF, by owning common property, including a one acre park, indivisible between 189 property owners, we can change the construct to mandatory, that would be cool.
GwenG
(Florida)

Posts:632


08/30/2018 7:46 PM  
To be subject to FS720:

F720.301(4) “Declaration of covenants,” or “declaration,” means a recorded written instrument or instruments in the nature of covenants running with the land which subject the land comprising the community to the jurisdiction and control of an association or associations in which the owners of the parcels, or their association representatives, must be members.

You do not meet the criteria to be subject to FS720 because your members are not "subject to". It is voluntary.

IMO, since membership is specifically voluntary AND assessments are not collectible by lien and foreclosure, your association cannot impose/preserve covenants unless they renew through the renewal mechanism described in your covenants. Outside of that, parcels must self impose covenants voluntarily. My lay opinion.

Actually, I have not heard that many associations are set up in such a manner but I have learned over the years that there are many variations on the theme. I only know of one that has a mix of voluntary and compulsory members. I have heard of some that have minimal common property and costs are voluntarily paid by members. You are the first I have heard about that have significant common property and voluntary dues.
GeorgeS21
(Florida)

Posts:3806


08/30/2018 7:59 PM  
The CCRs are mandatory and do run with the land ... every deed has the CCRs included as in mandatory HOAs, or even where there are communities connected via CCRs, but that have no HOA at all.

Forgot to answer your other question, just one class of association member ... membership is based on paying dues.
GwenG
(Florida)

Posts:632


08/31/2018 8:36 AM  
Do your CCR's specify lien and foreclosure related to payment of assessments? That is an important criteria to be "subject to" FS720. (My suspicion is NO since you are voluntary).

So, presumably all members are voting parcels but only volunteer parcels pay. The voluntary members pay nothing. Can all members serve as a director?--just curious.
GeorgeS21
(Florida)

Posts:3806


08/31/2018 9:11 AM  
We know we are not subject to 720 - clearly 617.

Directors must be Members - "Members" are defined as having paid dues for that year - only Members can vote.

No lien or foreclosure ability.

The 45% not currently paying are riding free on the backs of those that pay.

I would love to wrap all this up and go to court to request change to mandatory HOA status based on the indivisible ownership of the park (separate deed) and the common areas requiring maintenance ... just don't know if we would win.
GwenG
(Florida)

Posts:632


08/31/2018 10:46 AM  
Doubtful that you could do that unless 100% owner agreement. That would be a unilateral contract change and you would have to get the non-members to agree. That is not likely. Would YOU just give away your free ride contract without a fight?

If you are feeling lucky, you could seek an opinion on suing the voluntarys to compel them to pay on the basis of equitable servitude. But, that would be a pretty expensive way to go and divide for years.

Do you have any historical knowledge of why it was set up this way? Seems very unfair for no apparent reason.

Why not just file a preservation notice per 712.05 and 06 to preserve the CCR's for the mandatorys? At least it stops the MRTA clock from ticking and you can attend to the problem of "voluntary" later and continue the CCR's are they are now on the mandatory ones. No harm, No foul on that route.

But, it looks as though you cannot preserve CCR's on the voluntary owners. They can self-burden themselves with covenants, but since they are not Members of the HOA, their parcels' CCR's will be alienated by MRTA.

With such a lot at stake, I am wondering why you have not yet gotten legal help.

PaaN


Posts:0


08/31/2018 11:03 AM  
$$$$$ legal help $$$$$

? answered !

sincerely,

your ROYAL Paan

:L
GeorgeS21
(Florida)

Posts:3806


08/31/2018 12:47 PM  
Gwen,

Not sure it is making sense to you yet ...takes awhile since it is so nutty.

We're aware it would take 100% to modify the CC&Rs.

"Voluntary" describes the concept behind being a Member of the HOA - those that pay are Members, those that do no are simply not a member of the HOA. It does not relate to the covenants, all of which are mandatory, deeded, and recorded.

My point re this thread was to determine whether the HOA had the legal standing to preserve on behalf of the PUD, since the HOA is tasked, via the CC&Rs to maintain the common property and enforce the CC&Rs.

Here's an interesting article on the topic - https://www.jimersoncobb.com/blog/2018/01/civic-associations-authority-covenants-restrictions/ ... take a look at the appeals court case regarding one such neighborhood - a pretty standard "voluntary HOA" neighborhood.

In an initial email discussion (off the record and off the clock) with an attorney for the neighborhood where I live regarding the one I am posting on, she immediately assumed (I had sent her copy of the CC&Rs, but she obviously didn't read them since she wasn't on the clock) the covenants were unenforceable because the neighborhood couldn't have specific wording from the declarant granting the right to enforce (we do have such wording - and, this is referenced in the legal article, above). At $275 an hour this would go on for years ... I'll bet the HOA would spend $50,000 before it closed out - one way of the other. With 50% of the 189 properties at $85 a year .... figure a decade?

I was hoping for some clarity - failing getting any, I will likely prepare the preservation package, do the mailings as required, put it on the agenda at a Board meeting, seek approval from the Board, if approved take it downtown and record it. I don't know if there is a down side to doing that, but it seems reasonable.

GwenG
(Florida)

Posts:632


08/31/2018 2:41 PM  
I read the blogger's discussion you cited in your last post and seems that case law pivots on the existence of recorded instrument assigning Declarant's rights specifically to the association:

"See Hernandez v. Trout Creek Development Corp., 779 So.2d 360 (Fla. 2d DCA 2000) (holding that a voluntary homeowners’ association has the authority to enforce its covenants and restrictions based on its status as assignee of the developer’s rights if expressly stated in recorded governing documents)"

In the absence of such an instrument giving association the Declarant's power, the Association would derive its authority from the language of the Covenants.

According to the blogger, this voluntary 'civic association' scheme is archaic. But, if I were you, I would get the lawyer back into the conversation to make sure that you are not impairing the right of voluntary members to be free of covenants by operation of MRTA. You might take my story as a cautionary tale; MRTA expired my covenants and my HOA filed a preservation over my alienated property. I sued for slander of title and won. The fact of recording prior to expiration might be disputed by owners who are not HOA members.
GwenG
(Florida)

Posts:632


08/31/2018 2:41 PM  
I read the blogger's discussion you cited in your last post and seems that case law pivots on the existence of recorded instrument assigning Declarant's rights specifically to the association:

"See Hernandez v. Trout Creek Development Corp., 779 So.2d 360 (Fla. 2d DCA 2000) (holding that a voluntary homeowners’ association has the authority to enforce its covenants and restrictions based on its status as assignee of the developer’s rights if expressly stated in recorded governing documents)"

In the absence of such an instrument giving association the Declarant's power, the Association would derive its authority from the language of the Covenants.

According to the blogger, this voluntary 'civic association' scheme is archaic. But, if I were you, I would get the lawyer back into the conversation to make sure that you are not impairing the right of voluntary members to be free of covenants by operation of MRTA. You might take my story as a cautionary tale; MRTA expired my covenants and my HOA filed a preservation over my alienated property. I sued for slander of title and won. The fact of recording prior to expiration might be disputed by owners who are not HOA members.
GeorgeS21
(Florida)

Posts:3806


08/31/2018 5:45 PM  
Gwen,

Could certainly see in your case that since they were MRTA’d, that you would have to agree to their revitalization.

Since ours still exist, they can be preserved .... this is exactly what the recent Florida statute mods were all about - to make it easier to do this rather than harder. The new law for 1 Oct 18 requires MRTA to be discussed at the first, non organizational Board meeting following the annual POA meeting. I personally think this is to ensure that every HOA sees this and does something about it - they don’t screw up and let their CCRs get MRTA’d.

To my intent, what’s the worst case scenario? Disgruntled owner uses to to overturn the preservation?
GwenG
(Florida)

Posts:632


08/31/2018 6:35 PM  
Yup. Takes about $15 to remove the preservation from a disgruntled owner title. I would characterize my mood as more than disgruntled. I asked them to remove the preservation from my parcel "pretty please". They refused. My HOA spent $100K and had to pay me back. If the HOA has no authority to revitalize, they have no authority to preserve. Just sayin.
GeorgeS21
(Florida)

Posts:3806


08/31/2018 7:24 PM  
Good points ... based on my read, at this point, I think we have the ability and authority to preserve.

Since a lack of preservation means, in my opinion, the death of the cohesiveness and then the property values, it probably makes sense for us to work it this way.
GwenG
(Florida)

Posts:632


08/31/2018 9:46 PM  
Another Problem Solved!
GwenG
(Florida)

Posts:632


08/31/2018 9:46 PM  
Another Problem Solved!
GeorgeS21
(Florida)

Posts:3806


09/01/2018 7:35 AM  
Gwen,

Thanks for helping me think this through ... reviewed FS 712 and FS 720, again, this morning. 712 provides link to 720 for the actual form to be used - looks like they simplified the form, I'm assuming to make it easier and cheaper for POAs to preserve. The provision requiring this to be discussed at the first Board meeting each cycle will likely help a lot of neighborhoods avoid the unintended mess caused by the original MRTA in 1963.

Below is what the simplified form looks like in FS 712.

Process would look like - even though we are not a 720 POA, I would use those rules for process:

1. Show MRTA preservation as a topic on BoD Meeting Agenda that is published per FS (again, even though we are not 720, we would provide full meeting notice per 720)
2. BoD meets, discusses in New Business
3. BoD 2/3 vote to preserve
4. Form (below) completed
5. Form (below) delivered to Clerk for recording (I would also have an affidavit for the BoD officer to sign)
6. Send a copy to all property owners in the next mailing (does not require a separate mailing, nor apparently is a mailout of the specific document required to all owners in advance of the recording)

Does this sound correct per the 2018 (effective 1 Oct 2018) FS?

+++++++++++
Notice of   (Name of association)   under s. 720.3032, Florida Statutes, and notice to preserve and protect covenants and restrictions from extinguishment under the Marketable Record Title Act, chapter 712, Florida Statutes.
Instructions to recorder: Please index both the legal name of the association and the names shown in item 3.
1. Legal name of association: 
2. Mailing and physical addresses of association:  
3. Names of the subdivision plats, or, if none, common name of community: 
4. Name, address, and telephone number for management company, if any:    
5. This notice does constitute a notice to preserve and protect covenants or restrictions from extinguishment under the Marketable Record Title Act.
6. The following covenants or restrictions affecting the community which the association desires to be preserved from extinguishment:
  (Name of instrument)  
  (Official Records Book where recorded & page)  
  (List of instruments)  
  (List of recording information)  
7. The legal description of the community affected by the listed covenants or restrictions is:   (Legal description, which may be satisfied by reference to a recorded plat)  
This notice is filed on behalf of   (Name of association)   as of   (Date)  .
  (Name of association)  
By: 
  (Name of individual officer)  
  (Title of officer)  
  (Notary acknowledgment)  
(3) A copy of the notice, as filed, must be included as part of the next notice of meeting or other mailing sent to all members.
(4) The original signed notice must be recorded in the official records of the clerk of the circuit court or other recorder for the county.
GwenG
(Florida)

Posts:632


09/01/2018 8:25 AM  
You have set up a great process that was legislated for 720 communities. But you are not a 720 entity and can follow the simplified process of 712 which is a bit more streamlined. The state obviously is very concerned that HOA's don't "forget" to preserve or risk expiring their covenants and have gone to great lengths to trigger them to follow a process that is foolproof.

Additionally, strictly following 712 would not confuse the issue with owners who might think that the association is subject to 720 and would be later called upon to rationalize their actions. IMO, there is potential for voluntary owners to dispute the preservation. If I were you, I would present on the basis of 712 only and not invite 720 into the business of your HOA to avoid unintended consequences.

I disagree that the lack of preservation means dire decline in property values. You already have a "half and half" community and i think that is a greater deterrent than the other alternatives to "value" as I would see a greater than average risk of divisiveness and litigation in such a setup. As a practicing real estate agent, I never once heard a buyer ask for property specifically in an HOA. That being said, HOA's "sameness" generally triggers a sense of complacency about the neighborhood on an emotional level because of the overall tidiness and orderliness of the environment. Indeed, many buyers expressed that they did not want to look at condos or homes in HOA and only reluctantly bought in an HOA when unable to find a suitable home without one.

Property values reflect many things and perhaps in extremely gentrified areas, an HOA is considered some protection against invasion by "the element". But in today's middle market where most of us live, absence of deed restrictions is a desirable checkbox for more buyers than ever due to the unwanted intrusiveness, complexity and pettiness of HOA's in our private lives.

Cohesiveness? Seriously? CID's are some of the most contentious places on earth!
GeorgeS21
(Florida)

Posts:3806


09/01/2018 8:46 AM  
I can't tell any difference in what 712 and 720 say to do - in fact, 712 seems to send one to 720 for the "format." Is there a difference in what either is asking for?

To the cohesiveness - this is Pensacola - a location where there are many run down neighborhoods. This particular neighborhood has substantively higher values and shorter resale times than anything in its size/cost class. Those that buy here are paying more because the like the fact there are enforced covenants. Clearly, everywhere may not be like this - and, I have a pet theory that the lower the cost the greater need for covenants - just a theory. This neighborhood being a lower cost neighborhood has benefited from covenants.

To me personally, right now I'm trying to buy both a big house for my family, and high opportunity rental houses - I would NEVER even consider EITHER without an HOA and reasonable, locked down CC&Rs.

To the half and half - even though I don't even live in that neighborhood - those that do and that are members are apparently willing to carry the cost of the freeloaders in order to keep the lights on, the common areas landscaped, and the place in general looking nice. Even as an owner of rentals, I am willing to pay the small price! FYI - Board just lowered dues from $85/YEAR to $60/YEAR as we had convinced more owners to join the Association - this is a peanuts number, but some are just freeloaders. The only thing contentious in the neighborhood is that some pay for others' benefits - hey, wait a minute - maybe we do have two classes of people! :-)
PaaN


Posts:0


09/01/2018 10:35 AM  
..... Good points ... based on my read, at this point, I think we have the ability and authority to preserve. .....


Therein lies the nub.

Performing a legal procedure w/o legal advice is DEFINITELY misfeasance, possibly nonfeasance.
GeorgeS21
(Florida)

Posts:3806


09/01/2018 11:04 AM  
Gwen,

Could you help me with understanding what you see as the differences between 712 and 720 processes or documents?

Thanks.
GwenG
(Florida)

Posts:632


09/01/2018 1:08 PM  
The 712 notice is the same.

There are MANY differences between the notice, meeting and other requirements and procedures of 720 vs 617. For instance, 720 requires the Board to meet every year on the subject of MRTA and there is no such requirement of 617. Putting this on your agenda "as if" you were a 720 association sends the wrong message. Certainly, 720 is a superior framework for enacting a preservation. The risk is the blur that will inevitably confuse corporate conduct under 720 which you are not subject to, and 617-which you are.
GeorgeS21
(Florida)

Posts:3806


09/01/2018 2:05 PM  
Ah - OK, you were talking about the other provisions re FS 617 vs 720. Sure, got it. Thanks.

I live in a neighborhood that is FS 720 ... we will, of course, have MRTA on the agenda of the first non-organizational meeting following the Annual Meeting this cycle. I don't think it has to be the only topic, though. I am on that BoD, as well - when I mentioned MRTA (2025 requirement for this neighborhood) at the first BoD meeting, I got blank looks except for the MC rep. So, we're read, I think, to address it. This neighborhood, BTW, has money and is stable. The other (voluntary) neighborhood that I post a lot about, does not have money - frankly, it doesn't have money for an attorney to even do the MRTA work.

I would agree re the voluntary neighborhood that putting it on the agenda, especially if we record this year prior to the next annual meeting, is unnecessary and likely distracting. The meeting agenda I spoke of re this neighborhood is a BoD meeting - frankly, we don't even have to have an agenda, we don't have to allow members to attend, etc ... BUT, we are trying to be as open and transparent as possible - all things FS 720 requires.

Thanks, again.
ErikaG1
(Florida)

Posts:3


07/25/2021 6:52 PM  
GwenG wrote:
I sued for slander of title and won.

Gwen could you please give me at least the county and names of parties or the case number I would like to study your case, thanks!
KerryL1
(California)

Posts:8729


07/25/2021 9:15 PM  
Haven’t seen a post from Gwen in a long time…
ErikaG1
(Florida)

Posts:3


07/25/2021 10:04 PM  
Thanks, Kerry... I'm in no mood to write much after a long day of writing interrogatories for my lawsuit against a volunteer civic assocaition with supposed deed restrictions...
MelissaP1
(Alabama)

Posts:10590


07/26/2021 3:44 AM  
Good luck in suing yourself and your neighbors...

Former HOA President
GwenG
(Florida)

Posts:632


07/26/2021 6:54 AM  
Answering the comment from
Melissa: I made out just fine and got all my fees and costs returned to me by the Association. As a Past President, you are no doubt aware the law protects the prevailing party in a dispute and they do not have to pay any part of courts costs incurred by the Association or any attendant awards.

Answering the question ErikaG1: As is typical in these disputes, the cases were settled out of court at the insistence of the Association's Insurance Company, who refused to cover the Association legal costs because they knew the case was not going to favor the Association. I got ALL my legal fees and costs returned to me promptly after settlement. I did not enter into a gag order. As a result, I (along with the companion litigants) also negotiated the FIRING of the CAM, who lied to the board. The CAM was universally hated and this was one of the best settlements ever!

A companion case to mine with very similar arguments and complaint, also settled and received all their money and expenses back from the Association. Additionally, they negotiated dismissal of a minor criminal complaint. This Plaintiff won on a COUNTERSUIT as the Association was the party picking the fight. No gag order there either.

The longer term consequences were expensive for the HOA. They lost their insurance and had to seek inferior, foreign insurance with litigation rider. They had to find a new CAM. Owners were angry about the costs to litigate.

The companion litigants lodged a HUD housing complaint and subsequently sold their home and moved. I vacated the community for 3 years which was actually quite pleasant for me. I am now living in the community and most people don't even remember. There are some with lingering resentment which distresses them--not me.

Litigation is not fun and has short and long term consequences for both sides.
AugustinD


Posts:1920


07/26/2021 7:54 AM  
Posted By GwenG on 07/26/2021 6:54 AM
you are no doubt aware the law protects the prevailing party in a dispute and they do not have to pay any part of courts costs incurred by the Association or any attendant awards.
For the archives, this is only so where state statute or a HOA/COA's covenants have such a provision. Without a statutory or covenant provision that says the prevailing party gets his/her attorney fees paid by the losing party, the "American Rule" says each side pays their own attorney fees.

I appreciate your sharing your experience. I am sure what you did is likely to help others in the future with the exact same situation.
GwenG
(Florida)

Posts:632


07/26/2021 8:02 AM  
Thanks Augustin. So true about states being different. Hopefully, anyone pursuing a legal action will have a lawyer licensed in their state to guide them through the litigation
jungle!
ErikaG1
(Florida)

Posts:3


07/26/2021 8:09 AM  
MelissaP1
THank you for your reply.
I actually miss-spoke. I am being sued, not the other way around.
In a voluntary community assocaition which does not abide by FS 720, I am alledely required to abide by deed resrictions put in place in 1957.

Gwen, I would still appreciate a case number or the names of the parties in which state and County your lawsuit is in just to get a feel for the case in a little more detail even if you did settle.


And yes there is language in the covenants saying the prevailing party will have their attorney fees awarded.
AugustinD


Posts:1920


07/26/2021 8:17 AM  
Posted By AugustinD on 07/26/2021 7:54 AM
Posted By GwenG on 07/26/2021 6:54 AM
you are no doubt aware the law protects the prevailing party in a dispute and they do not have to pay any part of courts costs incurred by the Association or any attendant awards.
For the archives, this is only so where state statute or a HOA/COA's covenants have such a provision.
The Florida Marketable Record Title Act at 712.08 does give a judge the authority to award attorney fees to the prevailing party:

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

Perhaps this was used as some leverage for the settlement that occurred? Because I can sure see a judge letting an association have it right-between-the-eyes for pulling a stunt like what GwenG describes:
Posted By GwenG on 08/31/2018 6:35 PM
Yup. Takes about $15 to remove the preservation from a disgruntled owner title. I would characterize my mood as more than disgruntled. I asked them to remove the preservation from my parcel "pretty please". They refused. My HOA spent $100K and had to pay me back. If the HOA has no authority to revitalize, they have no authority to preserve. Just sayin.
GwenG, I am glad you got the CAM fired, since the CAM lied to the Board.

I am observing litigation right now between a HOA/COA and a HOA/COA member. It is not pretty. It takes years. Neither the plaintiff nor the defendant are really winning. Both are learning a hard lesson. I think the judge wants to kill everyone at this point. As is common, only the attorneys are "winning." It takes years.


GwenG
(Florida)

Posts:632


07/26/2021 8:17 AM  
Erika. If you will give me your email, I will send you the complaint and all motions and you can follow the progress of this legal discussion. Send to [email protected]
GwenG
(Florida)

Posts:632


07/26/2021 11:44 AM  
AugustinD: The key leverage in getting my was the HOA Association's lawyers, who pressured the HOA to close this case or they would not pay any more HOA legal fees. That was a shock to the HOA, who thought that insurance would pay their ego-driven litigation until...

As for time, on the same day that the Board voted to record the Preservation over my sovereign title, I called the President to meet with me. Prez refused. I proffered a mediation and spent $1000 on a 20min mediation during which the old men did not communicate at all. For the NEXT YEAR, my attorney met and spoke with the board president who refused to believe that the Covenants had expired on 90% of the parcels. My attorney asked me if there was a personal vendetta between me and the Prez. Not so, I was friends with him prior to this. He and his buddies were simply exercising his male pectorals. I finally pulled the trigger and sued my HOA. The HOA strategy was to stonewall me and outwait me and hoped that I would die before the case came to a conclusion. You could say that one belligerant, over-testosteroned old man was responsible for the HOA spending about $150K in legal fees to fight me and another similar case.

One fact I learned is that a case is not necessarily just about the case; it can be about many underlying issues, including defending a cultural institution and face-saving.

Of course, the HOA board relentlessly attacked me personally throughout the 3 year litigation. That is the nature of the beast and it is not a pretty beast, but once this train starts to roll, you gotta grow a thick skin, hold on tight and trust your attorney!
AugustinD


Posts:1920


07/27/2021 7:03 AM  
GwenG, got it, regarding the insurance and all else. Thank you for elaborating. I am sorry you had to go through this.
GwenG
(Florida)

Posts:632


07/27/2021 7:56 AM  
AaugustinD Thanks for recognizing the personal difficulty of litigation with an HOA. It is not recognized how life changing litigation--any litigation--can be, but in the case of an HOA, it is especially difficult because it occurs within a small bubble that negatively affects quality of life in a community.


I don't know if I would do it again, but you cannot rewrite history and I accept the decisions I made at the time. The experience has led me down paths I never would otherwise have taken and I have no regrets.

All in all, I would NOT recommend that anyone sue their HOA except under the most extreme circumstances. I would advocate that anyone with cause to sue, wait for the HOA to sue. It changes the dynamics to favor the Defendant, as the Plaintiff (HOA) must prove its accusation has merit.

In an intolerable situation, I would simply move (needless to say, somewhere without an HOA).
AugustinD


Posts:1920


07/27/2021 8:17 AM  
GwenG, I agree about the life-changing nature of any litigation that lasts more than a year. And once in the courts, it's just about guaranteed to last more than a year.

Also when I read about the lawsuits where a HOA has spent on the order of $100k or higher, it is so common to see that this was about the directors' ego. Not always; but often. The directors have members' money at their disposal. They can lawyer up and think they are important, even when in the wrong.

Regarding waiting for the HOA to sue: I mostly agree. A HOA member being denied records or certain voting rights is where I might disagree. Both of these issues come up a lot here. Unfortunately they still nearly always require hiring an attorney to threaten suit or actually bring suit. A HOA member that wants her or his rights enforced when it comes to records or voting will pay an attorney a few thousand dollars; probably keep the matter out of court; and not get her or his attorney's fees back, usually. Plus the delay in getting the right enforced wears a member down.

I continue to think the biggest problem is HOA members and HOA directors alike do not understand that their obligations are well-dictated by the covenants and state law. Too many HOA members and HOA directors think they can just make up what the HOA's obligations and what the HOA member's obligations are.

It's all been said here before, as I am sure you know.

For the bigger picture, I wonder whether statutes or insurer's requirements will start changing such that HOAs and COAs will have to maintain their reserves fully funded or say, 90% funded. I think this might radically change how directors handle things. Perhaps fewer frivolous lawsuits will be started or frivolous defenses will be undertaken?
GwenG
(Florida)

Posts:632


07/27/2021 9:14 AM  
AugustinD wrote:
For the bigger picture, I wonder whether statutes or insurer's requirements will start changing such that HOAs and COAs will have to maintain their reserves fully funded or say, 90% funded. I think this might radically change how directors handle things. Perhaps fewer frivolous lawsuits will be started or frivolous defenses will be undertaken?

I have pondered what would it take to change the innate excesses which take place in representative HOA's that are not accountable to anything or anyone, for all practical purposes. In my case, it was Insurance Company MONEY that finally put the brakes on--something I never imagined! The MONEY that the insurance company would no longer pay to litigate frivolous cases! MONEY is a very good place to leverage behavior! Maybe the only place. And MONEY is something most HOA's have at their disposal and Members have blithely given a small number of probably unschooled volunteers power to determine how it is spent.

As a PS to the involvement of the Insurance Company, they promptly dumped the HOA after the suits settled. New insurance was difficult to find, "offshore", inferior, extremely costly and contained a special "litigation rider" that severely limited the Insurance Company's obligation to pay for litigation to costs AFTER the HOA spent $100K of its own money. Not surprisingly, there have been no lawsuits since...

Would requiring better funding of reserves make a difference? Perhaps. But it did not help in my HOA which is well funded. Members were angry about so much money being spent, but they did not blame the HOA! Because the HOA controlled the narrative. But, perhaps it would make a difference in HOA's that did not have sufficient reserves and were statutorily required to maintain a certain level.

I have also thought about balancing the power of the board members' privilege with the Members' judgement; e.g. requiring a member vote to authorize a lawsuit against another member. This would presume the "wisdom of the crowd" to assess the need to spend their money on suing neighbors. Board versus Member lawsuits are likely to be the frivolous and ego-driven lawsuits which are often egged on by greedy association attorneys who "advise and recommend" that the Association SUE! As has been noted, the lawyers get paid regardless of who the prevailing party is.

My rationale for adding a level of internal control of HOA directors is based in my certain knowledge that 1) HOA's are more likely to be reckless when emotions are involved and lawyers are "advising" a direction 2) controls are unlikely to come from legislation which in FL is becoming more oppressive to consumers of housing than protective. If I were Queen, I would propose and advocate for a Bylaw requiring a Member super-majority affirmative vote to permit the board to sue a Member.
MaxB4
(California)

Posts:1601


07/27/2021 9:48 AM  
Posted By GwenG on 07/27/2021 9:14 AM
2) controls are unlikely to come from legislation which in FL is becoming more oppressive to consumers of housing than protective. If I were Queen, I would propose and advocate for a Bylaw requiring a Member super-majority affirmative vote to permit the board to sue a Member.




I happen to be from California and know that politics play a huge part in legislation for HOA's. We're opposite of Florida when it come to trying to protect consumer, though not always well thought out.

This is the language my HOA had in our CCRs:

4.1.13 The Association has the right and power to prosecute or defend, under the name of the Association, any action affecting or relating to the Project or the personal property thereon, or any action in which all of the Owners have an interest in the subject matter of the action. Notwithstanding the foregoing, without the prior vote or written assent of a majority of the voting power of the Association, the Board may not institute any legal proceeding (including any arbitration or judicial reference proceeding) against any person or entity the cost of which could reasonably be expected to exceed Two Thousand Five Hundred Dollars ($2,500.00). In estimating the costs, the Board shall include all normal and customary court costs and attorneys' fees without regard to the possibility of recovering costs and fees if the Association were to prevail.

Apparently, this language was put in by the builder, KB Homes, probably to protect itself from lawsuit from homeowners. I happen to have recently seen this same language in a case dealing with a recent thread here. The case law involved the same management company, president and property manager who were with us in our beginnings. In the case law, they suggested the HOA had the right to sue the homeowner, even with the language and the court completely ignored the CCRs language. In our case we had a homeowner to homeowner dispute and they got fired for upcoming the same language in a homeowner to homeowner ​dispute.

I am sure homeowners, like yourself win some court cases, but I wouldn't be camping out at the crap tables in Las Vegas with their odds


AugustinD


Posts:1920


07/27/2021 10:00 AM  
Posted By GwenG on 07/27/2021 9:14 AM

I have pondered what would it take to change the innate excesses which take place in representative HOA's that are not accountable to anything or anyone, for all practical purposes. In my case, it was Insurance Company MONEY that finally put the brakes on--something I never imagined! The MONEY that the insurance company would no longer pay to litigate frivolous cases! MONEY is a very good place to leverage behavior! Maybe the only place. And MONEY is something most HOA's have at their disposal and Members have blithely given a small number of probably unschooled volunteers power to determine how it is spent.

...

Would requiring better funding of reserves make a difference? Perhaps. But it did not help in my HOA which is well funded. Members were angry about so much money being spent, but they did not blame the HOA! Because the HOA controlled the narrative.
I hear you, especially about the HOA controlling the narrative. One can create, say, web sites, to counter such narratives, but it takes a lot of time, and a web site often pokes the bear more, even if the web site is factual whereas what the Board sends out to members is twisted.

If I were Queen, I would propose and advocate for a Bylaw requiring a Member super-majority affirmative vote to permit the board to sue a Member.
I am not sure I would support a bylaw that kept a board from foreclosing (a type of lawsuit) to collect owed money. Some states require judicial foreclosure; some do not. Sometimes foreclosure is appropriate.
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