Get 1 year of free community web site hosting from Community123.com!
Saturday, May 15, 2021











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Are we a homeowners association?
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
JohnK45
(Florida)

Posts:2


04/26/2021 9:47 AM  
I have been unable to find a definitive answer regarding whether or not our association is in fact a homeowners association goverened by Florida Statute Chapter 720. I am concerned because the purpose of the association is primarily to collect assessments, from approximately 3000 lot owners in a completed subdivision, with county maintained roads, water and sewer utilities, in order to maintain the common lands and provide architectural control over single family home construction. Our governing documents do not use the words homeowners association anywhere, although we fit the legal definition exactly as a mandatory lot owner membership association. Approximately 20% of the lots have been built upon. Chapter 720.302 (2) and (5), excerpted below, seem to support that Chapter 720 does not apply, since we were incorporated under Chapter 617.021, not the homeowners association parts of the act. In many respects Chapter 720 opens the door to many powers not authorized by our governing documents and allows for precedures which are far more lenient, in many respects.

The articles of incorporation were filed on March 1, 1972 and have not been altered since. The Declaration was filed on April 16, 1970 and has been amended and restated several times since. The Articles of incorporation state the following in
Article XI, Powers and Duties:
“Consistent with the Declaration and applicable laws, the association shall have all of the powers and duties granted to or imposed upon it by any of the following and any amendment thereof: (a) Chapter 617.021, Florida Statutes, (b) the Declaration, (c) these Articles of Incorporation, (d) the By-Laws and (e) other applicable laws”......


720.302 (2). In part states:
...Further, the Legislature recognizes that certain contract rights have been created for the benefit of homeowners’ associations and members thereof before the effective date of this act and that ss. 720.301-720.407 are not intended to impair such contract rights...

(5) Unless expressly stated to the contrary, corporations that operate residential homeowners’ associations in this state shall be governed by and subject to part I of chapter 607, if the association was incorporated under that part, or to chapter 617, if the association was incorporated under that chapter, and this chapter. This subsection is intended to clarify existing law.
BarbaraT1
(Texas)

Posts:415


04/26/2021 10:01 AM  
In fifty years, only 20 out of 3000 lots have a home on them? Am I reading that right?



JohnC46
(South Carolina)

Posts:10952


04/26/2021 10:08 AM  
John

You say you are single family homes with a mandatory lot owner membership association which to me says Home Owners Association even if not called an HOA. A Duck by any other name is still a Duck.
JohnK45
(Florida)

Posts:2


04/26/2021 11:11 AM  
20 percent-less than 600 homes built - thats correct
SheliaH
(Indiana)

Posts:3923


04/26/2021 11:44 AM  
Did you get anything with your closing documents that referred to a HOA? If not, it may be the declaration was filed, but then the developer left (or went belly up - sounds like that's what happened) without filing the rest (Bylaws and CCRs). You might check your state secretary of state's corporations division to see if anything was filed, but if not, you may have to get with your neighbors and an attorney to see what comes next.

You probably won't be able to say "well, we'll just leave it alone because we hate HOAs anyway," because you may hae common areas that all the owners are responsible for. Without a framework to collect money to take care of those areas, you and your neightbors may risk becoming personally liable if someone gets hurt but there's no formal HOA to go after (or carry insurance).
AugustinD


Posts:313


04/26/2021 12:54 PM  
I have read a number of other states' condo/HOA statutes that limit their applicability to condos/HOAs established after a certain date. My opinion is that FS 720.302 is clear that the OP's HOA is subject to FS 720.

You might wish to observe that --

-- the history of 720.302 states that it was formerly 617.302. See http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html

-- I believe FS 720 was enacted around 1992. You could go google newspapers from around 1992 and see what their chatter is about the pending "Florida Homeowners' Association Act." I bet the media discussed its applicability.

-- To convince your HOA's members of this, as needed have the Board hire an attorney to opine.
CathyA3
(Ohio)

Posts:1888


04/26/2021 1:12 PM  
Posted By SheliaH on 04/26/2021 11:44 AM
Did you get anything with your closing documents that referred to a HOA? If not, it may be the declaration was filed, but then the developer left (or went belly up - sounds like that's what happened) without filing the rest (Bylaws and CCRs). You might check your state secretary of state's corporations division to see if anything was filed, but if not, you may have to get with your neighbors and an attorney to see what comes next.

You probably won't be able to say "well, we'll just leave it alone because we hate HOAs anyway," because you may hae common areas that all the owners are responsible for. Without a framework to collect money to take care of those areas, you and your neightbors may risk becoming personally liable if someone gets hurt but there's no formal HOA to go after (or carry insurance).




I think this is the most important feature of HOAs: they can purchase insurance on commonly owned property, thus protecting individual owners from being held personally liable if someone is hurt and sues the association.

In addition, HOAs usually provide Directors and Officers insurance for the people who serve on the board and make the decisions for the association. Otherwise the board members would put their personal assets at risk if someone sues them - over an unpopular decision, for example - and nobody who understands this would ever volunteer to serve on the board.

Last, HOAs can insure their non-physical financial assets such as the money set aside for future replacement of big ticket items - this protects these funds in the event someone embezzles from the HOA.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Are we a homeowners association?



Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement