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Subject: FL Covenant Expiration MRTA
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KevinK7
(Florida)

Posts:1343


09/13/2015 7:18 PM  
Posted By GwenG on 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.


I did mean revitalization.

As for my situation it is interesting. I have not been to court. In 2009 the c&rs expired. In 2012 I was sent an enforcement letter demanding I remove a lattice I had placed on the side of my home. I was on vacation when I received the letter. When I got home I got another letter, this time from the attorney. It demanded legal fees and removal of the lattice. My attorney informed them of MRTA. Their attorney responded to me ignoring my attorney demanding payment. My attorney sent a second letter reminding them of MRTA and the rules set by the Florida bar. That was the lat I heard from them about that issue.

Then in 2014 I received a couple enforcement letters from the new management company demanding I clean my mailbox. Nothing ever came of their threat.

Then, out of the blue in 2015, I got a letter from their attorney demanding 3 years of assessments and legal fees and a response within 30 days. My attorney responded reminding them of MRTA yet again, as well as some other laws that could be plied towards their attorney for continued harassment and threats of legal action. It has been 4 months since th at letter and the HOA'S attorney has yet to respond.

My attorney believes they were testing the waters to see if I would fold. I think that each time they get a new property manager they attempt to collect on the hold outs and enforce their rules on the rest. I also believe that because of the HOA's continued acts of legal threat and subsequent action is quite damning on their part.

But, because there has not been a formal suit or ruling my case is in limbo. Many of the posters told me this in 2012. I have actually tried to avoid court because of the time and costs. My attorney informed them of the law. He outlined all of their actions and how they were contrary to the statutes. They ignored that with repeated threats of legal action but never followed through - another action that is against florida statutes.

If they try a third time I may be forced to take this thing to court and if that happens a lot of people are going to be screwed. My neighbors cannot afford a huge lawsuit and a lawsuit with the HOA would ruin a lot of lives and chances are my life won't be one of those. I have statutes, court cases, and a history of harassment (I have kept nearly 2 decades of documentation as well).


VickiC3
(Florida)

Posts:26


09/13/2015 8:44 PM  
Our neighborhood is a big mess! The president and his wife seem to be hiding something. Several of us have asked for a ballot count. The president counted the votes with his wife. He wouldn't agree to count the ballots in front of the homeowners. Those that asked were told it passed with 20 yes's. Three no's, one I need more information and the rest of the 37 homes didn't vote. Two homeowners went to the presidents house yesterday to count the ballots for themselves. They told me there were 19 ballots not 20. When they asked where the 20th ballot was the president told them that was enough and to leave. The presidents wife told me everything has been sent to the lawyer so I'm assuming these ballots must have been copies. We don't know who to believe. The president withheld a letter from an attorney last April. When he was asked about it he said he didn't get anything yet. One of the homeowners, one that counted ballots on Saturday, called the lawyer and found out that he indeed had received a letter and he received it in Feb. She got a copy from the lawyer and made copies and distributed them to every homeowner. At the time she was secretary treasurer but has since resigned. Shouldn't the president have told the homeowners the votes passed by now? I am really just sick of the whole thing! I, as well as a few others, have spent way to much time looking for the truth and trying to clarify issues.
GenoS
(Florida)

Posts:3328


09/13/2015 10:46 PM  
I found this recent and interesting court case in Florida. The trial court concluded, and the 4th District Court of Appeals upheld, that HOA boards have an obligation to take planned and specific action to ensure that governing covenants and restrictions do not expire due to MRTA.

I don't know what legal liability directors would be open to should they fail to preserve in time, but the decision is fairly recent and perhaps we will find out soon enough.
KevinK7
(Florida)

Posts:1343


09/14/2015 7:51 AM  
Interesting. So this case says there is an obligation for the HOA to file but does not seem to change much else. I need to read the full ruling but it does make sense. If a HOA exists then they should try to preserve. This case seems interesting since it states 95% of the homeowners wanted to dissolve.

My thoughts are you rarely see MRTA cases because A) the law has only started to take affect in the last 20 years and it takes several years for a case to wind through the courts (my neighborhood took nearly 4 or 5 years to litigate) and B) many homeowners do not have the resources to fight a prolonged legal battle so these issues do not come up as often as they should.

I want to compile all MRTA cases for my website to help homeowners and florida HOAS better educate themselves
GwenG
(Florida)

Posts:600


09/14/2015 8:59 AM  
[email protected]
Here is the link to the appellate decision:

http://law.justia.com/cases/florida/fourth-district-court-of-appeal/2013/4d11-1130.html

Thanks Kevin for the additional info. The decision to withhold assessments is fraught with peril under normal circumstances when there are Covenants providing for lien/foreclosure. Without Covenants, I guess one just rolls the dice and deals with uncertainty and the lawyers/management company du jour.

What is the rationale of your attorney on your decision to withhold assessments?
SusanE6
(Florida)

Posts:102


09/14/2015 1:49 PM  
You know, it is time someone take a stand and be the first to go forward and challenge this insanity. I do not have much money but am willing to do what is needed to be done to make people realize that attorneys need to know what MRTA is all about.
I am including parts of the Association attorney's letter and I am in awe of such a person representing a group of people that choose him without checking into his experience with MRTA.What are his credentials and how many MRTA cases has he represented? Lawyers should be responsible for their poor advice to these Associations and Board members should be responsible for not researching attorneys and vendors.
Some of his inclusions:
1)" If the five remaining lot owners choose not to voluntarily subject their lots to the Declaration, they will lose their membership status in the Association. As such, they will not be allowed to attend Board or membership meetings, benefit from any services paid for by common expenses, or use the common ares". (To me this means, I am ousted from the Association by declaration of an attorney. Why would I be paying anything for this privilege?)
2) He also states: "With the guidance of this firm, it was determined that the best way to remedy the issue of MRTA was to ask the eight effected(there are actually 19)homeowners with expired lots to voluntarily subject their lots to the Declaration".(This attorney only listed three extinguished properties to begin with and than I sent titles of 19 other titles that also were extinguished; he had already preserved the covenants and deeds with the county)(He than wrote this letter stating he had 5 more -which still have not been added to the preservation).
3)He continues: "The other option is to revitalize the deed restrictions to all the expired lots by obtaining the approval of the majority of all lots in the subdivision. This process is substantially more expensive and compels the affected homeowners to rejoin the Association, whether they desire to or not. This would be advocating a substantially more expensive and aggressive resolution in which thousands of dollars would be expended and the individual homeowners may sue the Association to attempt to withdraw their lot from the revitalized deed restrictions. When discussing these options with the Board, it seemed more prudent to give each expired lot owner the choice to voluntarily submit their lot to the deed restrictions instead of compelling owners to subject their lots to the Declaration by majority vote. Forcing owners to rejoin the Association invites litigation, at a possible substantial additional cost to the Association and its lot owners".

This attorney sent his two page letter to the President stating in it: " This correspondence includes privileged communications between attorney and client. This letter is not to be disclosed to third parties without the consent of the Board of Directors". The letter was sent out to the entire membership so they would know if the voluntary form was not signed, that homeowner was not a member of the Association.

We were told by our attorney, we are members of the Corporation and can still be attending meetings, voting, using the services. We have asked the Treasurer twice now for financial information and she refuses to provide us with this. On all the agendas sent out - it has been changed to all property members welcome to only Association members may attend. Hmmm - the Board and homeowner think we are no longer members as does their attorney.

One of the reasons for the Association and the main reason is to enforce the covenants and Declaration. No? If the covenants expired and our title is extinguished,there is nothing to enforce?
The homeowners that signed the form allowing them back into the Association are actually signing a contract that binds only them to the preservation- when they sell their property, what happens to the contract?
The Bylaws and AOI are guidelines by which the corporation runs- if the bylaws state as per the Declaration and the Declaration has expired?

This is terrible to subject people to this with attorneys that take our money and do things wrong. They should be held accountable for their actions.
KevinK7
(Florida)

Posts:1343


09/14/2015 2:07 PM  
His rationale wad that there are no more covenants. The statutes are clear, the HOA failed to act appropriately, there is significant legal precedents supporting my situation (such as the Matissek case), the HOA was notified and then ceased their attempt to pursue legal action, and because fifteen years ago I had never agreed to amend the covenants and restrictions (the covenants and restrictions not mentioned on my title but a document half the homeowners in 1982 decided on, not including my property, of course) forcing me into mandatory membership and mandatory assessments and granting the HOA the authority to lien, we were pretty confident.

Plus, each time the HOA threatens legal action and then fails to act when my attorney responds is like a tacit admission on part of the HOA that they are indeed wrong.
GwenG
(Florida)

Posts:600


09/14/2015 5:30 PM  
SusanE6 posted:

This attorney sent his two page letter to the President stating in it: " This correspondence includes privileged communications between attorney and client. This letter is not to be disclosed to third parties without the consent of the Board of Directors". The letter was sent out to the entire membership so they would know if the voluntary form was not signed, that homeowner was not a member of the Association.

Hahaha by sending out the letter to the entire membership, the Board consented to waiving the blanket confidentiality clause imposed by their own attorney. All is fair game since your HOA has waived confidentiality.

And, as your attorney stated, you are still a member of the corporation and entitled to whatever rights are given by the Art of Incorp and Bylaws. If you do not pay assessments, the corporation will have to sue you civilly to prevent your use of common amenities and will have to prove that you are using them (without paying). They could also set up a pay-per-use system for occasional use if they wanted to accommodate the 19 expired homeowners. If you DO pay assessments, you have rightful access to the common elements that your contributions support and the HOA should consider themselves lucky. You don't have to pay any attention to any "rules or conditions" concerning use of the common properties. It really doesn't matter what they say to homeowners; only what they DO. Forbidding you to attend a meeting is provocative behavior and your attorney might send them an invitation for a trip to the courthouse. They would be in violation of both 720 and 617.


@Kevin: I can see that your situation is very different from most Covenants expired by MRTA in that you were never a mandatory member of the HOA. You never had an obligation to pay assessments because you were a voluntary association and payment was optional. The HOA continues to intimidate you into paying but they really have no authority to sue for payment or place a lien on your property. If they did, they would have done so long ago. Is that about right?
GwenG
(Florida)

Posts:600


09/14/2015 6:30 PM  
DonB11 posted:

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.

You are correct in that recording the CC&R's on the PLAT is a MRTA exception but I differ with you as to prevalence of this practice. The first thing I did when researching this MRTA exception was examine my HOA PLATS (3 separate subdivisions) to assure that the CC&R's were not recorded with the PLATS. Recording HOA CC& R's on the PLAT is unusual, according to my attorney. In my HOA's case way back when (the 70's), the Developer prepped the tract infrastructure for sales and paid no attention to the use restriction side of it until the sales activity was ready to commence. I have heard of only ONE HOA that recorded its CC&R's on the PLAT.

Typically, the Plat Book/Page is where detailed physical parcel information resides. IF the CC&R's were recorded with the PLAT, theoretically the Covenants would never expire. (This is why condos don't have MRTA issues; the CC&R's are recorded on the PLAT of the project and Developer is selling vertical air space units.) For most older HOA's that are now experiencing MRTA expiration, CCR's were recorded as documents in the OFFICIAL Book--not on the PLAT. But your point is well taken--one must be careful to examine the PLAT before concluding that their parcel is MRTA-expired.
KevinK7
(Florida)

Posts:1343


09/14/2015 8:15 PM  
Posted By GwenG on 09/14/2015 5:30 PM
SusanE6 posted:

This attorney sent his two page letter to the President stating in it: " This correspondence includes privileged communications between attorney and client. This letter is not to be disclosed to third parties without the consent of the Board of Directors". The letter was sent out to the entire membership so they would know if the voluntary form was not signed, that homeowner was not a member of the Association.

Hahaha by sending out the letter to the entire membership, the Board consented to waiving the blanket confidentiality clause imposed by their own attorney. All is fair game since your HOA has waived confidentiality.

And, as your attorney stated, you are still a member of the corporation and entitled to whatever rights are given by the Art of Incorp and Bylaws. If you do not pay assessments, the corporation will have to sue you civilly to prevent your use of common amenities and will have to prove that you are using them (without paying). They could also set up a pay-per-use system for occasional use if they wanted to accommodate the 19 expired homeowners. If you DO pay assessments, you have rightful access to the common elements that your contributions support and the HOA should consider themselves lucky. You don't have to pay any attention to any "rules or conditions" concerning use of the common properties. It really doesn't matter what they say to homeowners; only what they DO. Forbidding you to attend a meeting is provocative behavior and your attorney might send them an invitation for a trip to the courthouse. They would be in violation of both 720 and 617.


@Kevin: I can see that your situation is very different from most Covenants expired by MRTA in that you were never a mandatory member of the HOA. You never had an obligation to pay assessments because you were a voluntary association and payment was optional. The HOA continues to intimidate you into paying but they really have no authority to sue for payment or place a lien on your property. If they did, they would have done so long ago. Is that about right?




Ignoring the whole "release" of the original covenants and filing of new ones, in late 2001 they filed an amendment to the newer set making it voluntary to join for lif or newer homeowners automatically lifers. My family owned the home since 1991 and we were always voluntary paying members. I never knew there was an issue. My father passed away in late 2001 and his estate was finally settled in 2002. I continued paying until 2012 when my attorney informed me I no longer had to so I stopped.

Surprisingly the HOA never made any argument as to why I should pay. They would only make demands and any response was typically met with silence. I assume they have never filed a lien or pursued action because they know I know and that I will fight.

I informed them in 2012 and shortly afterwards they foreclosed on a homeowner for nonpayment. The homeowner was unaware of MRTA and was in a rough spot (single mother laid off). The HOA knew they lacked authority but they still pursued action. They tried to go after other homeowners for various infractions but once those people learned about MRTA they addressed the board and they were given the option to leave.

I think this is why my attorney believed they keep testing the waters against me.

One thing about their most recent attempt was that they demanded 3 years of assessments plus legal fees. This is their first attempt to collect in 3 years. Juse nother reason why I am confident shold this ever go to court.
GenoS
(Florida)

Posts:3328


09/14/2015 9:31 PM  
Posted By GwenG on 09/14/2015 6:30 PM
I have heard of only ONE HOA that recorded its CC&R's on the PLAT.

Typically, the Plat Book/Page is where detailed physical parcel information resides. IF the CC&R's were recorded with the PLAT, theoretically the Covenants would never expire.

My HOA is that way. After moving in I pulled the plats for 4 other HOAs that are nearby. Their plats were recorded in 2001, 2004 and 2007. My HOA's plat was recorded in 1988. All 5 call out the Official Record Book and Page numbers for the recorded declarations right on the plats. Maybe different counties' building departments have different requirements when developers initially file their plans and record the plats. It's certainly not unusual in Indian River County.
VickiC3
(Florida)

Posts:26


09/15/2015 3:16 AM  
I and another homeowner called the lawyer handling our revitalization yesterday. The lawyer just received the votes. I did not get a call back and the other homeowner was informed that the lawyer will not talk to us. He's representing the HOA and only will talk to the president! We are the homeowners. So we enter revitalization with a lot of unanswered questions and uncertain clarity. This us really crazy.
GwenG
(Florida)

Posts:600


09/15/2015 8:28 AM  
Vicki: Suggest you forget verbal communications and mail certify any requests for information. The records are yours--they do not belong to the attorney or the board members. You have a right to inspect the primary ballot and validate the authority but you must do everything in writing from now because you are dealing with a hostile HOA environment.

You can take your HOA to Small Claims Courts if they do not produce records in 10 days. The penalty is up to $500 and a court order to compel record production.

Your HOA will have to file an affidavit to the Dept of Econ Dev if they believe they have a sufficient mandate to request revitalization review. It is not uncommon for HOA's to fabricate affidavits. My HOA did it on several occasions.

My opinion is that you should validate your member mandate to revitalize now. Validate every single signature. The more self-help you can assume, the better your chances of a relatively modest legal fee if you choose to challenge the revitalization.
WalterM4
(Florida)

Posts:29


09/18/2015 7:49 AM  
I am new to this site. I can only suggest to someone like Vicki not to sign anything, and not to be bullied. With my limited knowledge, and from what I have seen in other communities the issue of affidavits as presented here means nothing by itself. There is by far much more required to revive expired c&r's. Also the matter of a simple majority vote may not hold water. Most documents require an approval of 2/3 rds to 75% of the members of the community. A subdivision where I live tried to start a mandatory HOA with a 50+1 vote, and it could not be done. My communities C&Rs expired in 2009; in 2007 the HOA filed a notice of preservation only, without taking any further actions. The Idiots still believe they are a mandatory association, and have been placing liens on everyone they can. I have challenged them to place a lien against me but so far they have refused. In 2009 they tried to have an attorney stop me, but he refused to assist them. My HOA does not have open meetings and do no have annual meetings. They do not allow anyone to review their books, and refuse to respond to the community members claiming the the attorney told them not to. There are very few good attorney's with knowlege of HOA & MRTA law, but I am sure that there is more than one person on this blog who could provide a name who two if needed.
GwenG
(Florida)

Posts:600


09/18/2015 8:41 AM  
WalterM4 posted:

I agree that there is much more to reviving documents than an Affidavit. Members can self-impose restrictions on their parcel, but to have the HOA attorney prepare and present homeowners with "coerced" affidavits invites legal trouble down the road.

Most documents require an approval of 2/3 rds to 75% of the members of the community.

That is true and always stated in the Covenants; if silent, a mandatory FL HOA will be subject to the threshhold in FS720 i.e. 2/3 of entire membership.

A subdivision where I live tried to start a mandatory HOA with a 50+1 vote, and it could not be done.

True. Assuming that you were a voluntary HOA prior to that attempt, that would not be an majority-votable amendment; it is a NEW restriction and thus, 100% of the membership would have to affirm. (50+ 1 is a pretty low threshold and FS720 provides that number for member agreement to ATTEMPT a revitalization of expired covenants. It is believed that there are constitutional issues in the way this statute was written. Some governing documents provide 50% + 1 for adoption of Rules & Regs.) Covenants are treated as contracts in civil law and such an action imposing a NEW use restriction "after the fact" would be a violation of the civil contract.

My communities C&Rs expired in 2009; in 2007 the HOA filed a notice of preservation only, without taking any further actions.

If the preservation was done correctly in 2007 BEFORE the 2009 expirations began, then it would appear at first flush that your HOA has another 30 years to be in existence from 2007. HOWEVER, you stated that that your HOA tried to start a mandatory association which assumes that it was voluntary at the time. Thus, IMO, your HOA would not be eligible to file a Preservation. There are three conditions for eligibility for preservation/revitalization and one of those requirements is that the HOA is a mandatory association. HOA is defined in both statute 712 and 720. Your preservation is likely "null and void" and if I were a member, I would seek a MRTA-experienced attorney's opinion and, if necessary, require the HOA to UNslander your title.

Disclaimer: Not an attorney so don't rely on any opinion expressed here. Anyone who wants the names of practicing, competent MRTA attorneys can contact me personally at [email protected]
WalterM4
(Florida)

Posts:29


09/18/2015 9:12 AM  
GwenG: Thank you! the fact is that the 2007 preservation was not done properly. It was done by 4 board members only without a meeting of the community or a vote of the members nothing was indexed and the so called amended c&r's were never drawn up or recorded.
GwenG
(Florida)

Posts:600


09/18/2015 4:29 PM  
Did the 4 board members represent the board as a quorum and 2/3 of board members? Only the board members (not owners) get a vote on Preservation. Preservation must be done prior to expiration of Covenants. (Only UNEXPIRED parcels can be preserved. If expired parcels are indexed in a Preservation, those parcels' titles have been slandered and owners should demand that the Preservation be removed.)

After expiration, Owners can participate in a "revival vote" which is 50% +1 on attempting revitalization. The revival vote ballot incorporates written Consent to be re-encumbered by the original governing documents. If approved by the DEO, all eligible parcels are re-encumbered.

Next question is: what must owners do who do not consent to revitalization and whose parcels are indexed in the revitalization document (which typically includes ALL properties)? Unfortunately, I expect this to be a future issue in my HOA and possibly necessitate another lawsuit.
SusanE6
(Florida)

Posts:102


09/18/2015 7:51 PM  
Hello, Walter:
It almost sounds like you live in my HOA. Sad how these Boards just run amok. I would like to tell you that I have been following this blog for a while and it has helped me so much in the MRTA issue. Gwen, Kevin, Geno and Tim have helped me so much. Without Gwen I would not have had a good attorney to represent me with the MRTA issue in my HOA.

Sadly, many Boards operate as if they have all the answers and do very little research to make sure they are represented by knowledgeable people. My attorney will be filing a complaint against my Association next week as the preserved our documents improperly. Their attorney sent a letter to my membership stating if I did not sign the contract he drew up to join my association, that I no longer am a member of the association. We are up to date with our assessment and feel if we are no longer members as per their attorney, than why pay into the Association? We have asked for some financial records and had a reply from the President that we may not have access to these records as we did not sign his contract and we are no longer part of the private corporation. So, right now the President and their attorney have labeled us non members and have made this public to the membership.

The membership is now stating(heresay) that we no longer can drive on the private streets and that they are cutting off our cable. What????? It seems to be a big movement out there to have us chastised for wanting to do the right thing and preserve/revitalize as per the statute. I have a feeling the best is yet to come.

So, I agree - these Boards feel empowered to do whatever they want; spending others money; making up rules as they go along; and bad mouthing those who disagree.

Life can't be any better than this.......
KevinK7
(Florida)

Posts:1343


09/18/2015 7:54 PM  
Posted By GwenG on 09/18/2015 4:29 PM
Did the 4 board members represent the board as a quorum and 2/3 of board members? Only the board members (not owners) get a vote on Preservation. Preservation must be done prior to expiration of Covenants. (Only UNEXPIRED parcels can be preserved. If expired parcels are indexed in a Preservation, those parcels' titles have been slandered and owners should demand that the Preservation be removed.)

After expiration, Owners can participate in a "revival vote" which is 50% +1 on attempting revitalization. The revival vote ballot incorporates written Consent to be re-encumbered by the original governing documents. If approved by the DEO, all eligible parcels are re-encumbered.

Next question is: what must owners do who do not consent to revitalization and whose parcels are indexed in the revitalization document (which typically includes ALL properties)? Unfortunately, I expect this to be a future issue in my HOA and possibly necessitate another lawsuit.



If this ever happens in my neighborhood (which I assume it will eventually but done incorrectly) I would love my original covenants because there aren't that many, there is no HOA mentioned, and some of the covenants have already been invalidated by law. But I assume the HOA will try to revitalize using their new covenants and go on the attack.

I still wonder, and I have mentioned it here before, if c&rs are expired and not revitalized, if new covenants are placed on the property by the owner, would they supercede revitalized restrictions? I am trying to figure out a way to protect my property just in case...
WalterM4
(Florida)

Posts:29


09/19/2015 4:37 AM  
Gwen: No one knows if there was a quorum of board members all of the board meetings are held at a private residence, and closed to the community.
The board has never had an election; everyone on the board is appointed by the president so no one ever really knows who and how many board members there are at any given time. I have already sent the preservation document to my attorney for review and she claims the filed paper work does not even come close to being legal. I trust her!
WalterM4
(Florida)

Posts:29


09/19/2015 4:49 AM  
KevinK: Revitalized restrictions can not be more restrictive than the original. If many of your covenants have already been invalidated you would have to wonder what's on the associations mind. The expense of revitalizing would be far greater than the benefits derived form the process.
WalterM4
(Florida)

Posts:29


09/19/2015 4:58 AM  
SusanE: Trying to deprive people from access to their homes by preventing them from using the roads has been attempted before and it did not work.
If your deed restrictions have expired than what would prevent a person from installing dish network.
GwenG
(Florida)

Posts:600


09/19/2015 8:57 AM  
KevinK7 posted:

I still wonder, and I have mentioned it here before, if c&rs are expired and not revitalized, if new covenants are placed on the property by the owner, would they supercede revitalized restrictions? I am trying to figure out a way to protect my property just in case...

My 2 cents: If I understand your question, NO the Owner's own use restrictions will not supercede future lawful encumbrance of CCR's by the HOA. But, it would seem impossible to revitalize your old Covenants because you were never a mandatory HOA! That is one of the three criteria that must be met to be a recognized HOA. (Presumably a voluntary association is considered a social club and not regulated at all by Florida.)

Your question did, however, contain two different conditions i.e. no revitalization and revitalized restrictions. If the covenants are expired, the owner can place any restriction they like on their own property. If the HOA comes along later and places revitalized Covenants on your property, there might be a real mess and you'll want to probably hire a lawyer to protect your property. The HOA's action could be seen as a hostile takeover attempt and a slander of title. IMO, recording your own covenants would be more problematic than problem-solving because your HOA appears to be uncommonly stupid.

Separately, newly-ENACTED covenants are not a revitalization and cannot supercede the expired ones. The new ones are a brand spankin' new contract between Owners and Association and the adoption of NEW CC&R's would NOT be subject to review by DEO under the guidelines of FS720. The NEW document is not a statutory resurrection of the original document which was for a voluntary association, and a voluntary association does not meet the qualifying criteria as a real Florida HOA under FS720. It would be a new civil document adopted by individual owners which would be bound by FS720 provisions.

You are sittin' pretty with regard to living in this HOA. No use restrictions can be lawfully placed on your property by the social club and anything you want to pay to the social club is optional. The social club is apparently aware they have no authority to compel the payment of "assessments".

Walter M4: I am wondering if you or another owner are planning to use the information you have to act to protect your property from the illegitimate Board actions against your title.

SusanE6: I am glad you are turning this over to your attorney. Your board is scared and will be even more spooked when they get the legal papers and may redouble their efforts to intimidate you. They cannot, of course, legally prevent you to access to your property and if they attempt to do so, call the police (have your ID and Deed on hand). (I will look up the Florida case where the HOA attempted to prevent access to private property when the homeowner lapsed on assessments. The case was won by the homeowner.)
GwenG
(Florida)

Posts:600


09/19/2015 9:49 AM  
Here is an article summarizing the lawsuit against a Seminole County HOA; readers are urged that this case was won by the homeowner because of underlying flaws in the process which purported to amend the Declaration and not on the legality of the proposed restriction (which was not ruled on).

SusanE6: can we assume there is no authority to restrict access to private roads for non-payment of assessments in your corporate documents or power to limit your access of common areas over roads? Your Covenants are no longer applicable and neither is FS720 but I do recall reading something about restricting access in the statutes but can't remember where...

The Case # is 2011-CA-2559. To view recorded documents, you have to use Internet Explorer browser and install Seminole County's viewer.
--------------------------------------------------------------------------------------------

How far can an Association go in restricting entry for unpaid assessments?
by: Jean Winters, Esq. November 8th, 2013 | 12:10 PM

Most homeowners know that recent statutes allow a community association to bar homeowners delinquent in their assessments from using common grounds and amenities. There are some exceptions to that. A homeowner may not be barred from entering or leaving his community (ingress/egress), for example. That does not prevent the Association from cutting off access to “convenience” gates, requiring the homeowner to access the community by a visitor’s gate.

Upscale Alaqua Property Owners’ Association enacted a covenant amendment that went further. The amendment denies “access to the community to guest and/or other Invitees of an Owner or resident” if that Owner is delinquent in the payment of any portion of assessments by more than 90 days. By that definition, an owner’s family (not living with him) may not be allowed into the community. The Association’s attorney says that the Board would not bar family from the community or prohibit guests or family from walking into the community or being driven by an owner. However, that is not what the actual amendment provides. In fact, the amendment goes further to state that those guests or Invitees would be treated as unlawful trespassers and advises the Association to contact the police to remove the unauthorized guest or Invitee from the community.

What counts is the actual language of the covenants. Board enacted rules may change, as long as they are consistent with the covenants. Therefore, a Board would be within its rights to report as an unlawful trespasser a homeowner’s adult son who came into the community – whether riding in the homeowner’s car or walking in.

David Acosta, a homeowner in Alaqua, was evidently behind in assessments for a few years, before the Association filed a foreclosure action. Acosta disputed the amount owed, and the Association was denied summary judgment because material facts were in dispute. The Court then allowed Acosta to file a counterclaim. Among the issues in the counter-claim was the assertion that the amended covenant prohibiting access to the community to guests or Invitees was unreasonable and unenforceable. Acosta now is about 8 years behind in assessments, although the court granted his request to submit ongoing assessments into the court registry which he appears to be doing.

Acosta also filed for a temporary and permanent injunction to prevent the Association from enforcing the amended covenant. The Court granted both, but only on the grounds that the amendment was not properly passed – not because it was otherwise unenforceable.

Florida law has long held that covenants carry a “presumption of validity.” Most covenant amendments will not be ruled unenforceable unless they violate the law existing at the time, public policy or are otherwise illegal. This is a high standard.

The question remains as to whether this amendment is so unreasonable that it violates public policy or is illegal. In determining whether a covenant amendment is enforceable, a court may weigh the balancing interests. Associations clearly have a strong interest in receiving payment to maintain the common areas. Does that interest trump the homeowners’ property rights to have guests, family or other invitees visit? Does the Association have a right to define unauthorized entry into the community an unlawful trespass, because the owner did not pay assessments?

Although granting the injunction, the Court expressly ruled that the amendment would be deemed “reasonable.” Acosta’s lawyers have filed a motion for rehearing on that ruling. The outcome remains to be seen.

What do you think of this covenant amendment?
----------------------------------------------------------------------------------
WalterM4
(Florida)

Posts:29


09/20/2015 4:42 AM  
Jean & Jack Winters are good people, but I am left to assume that the covenants allow for amending, and contain the words "as may be amended from time to time" also would the amendment be more restrictive or less restrictive than the original document?
KevinK7
(Florida)

Posts:1343


09/20/2015 7:26 AM  
Posted By GwenG on 09/19/2015 8:57 AM
KevinK7 posted:

I still wonder, and I have mentioned it here before, if c&rs are expired and not revitalized, if new covenants are placed on the property by the owner, would they supercede revitalized restrictions? I am trying to figure out a way to protect my property just in case...

My 2 cents: If I understand your question, NO the Owner's own use restrictions will not supercede future lawful encumbrance of CCR's by the HOA. But, it would seem impossible to revitalize your old Covenants because you were never a mandatory HOA! That is one of the three criteria that must be met to be a recognized HOA. (Presumably a voluntary association is considered a social club and not regulated at all by Florida.)

Your question did, however, contain two different conditions i.e. no revitalization and revitalized restrictions. If the covenants are expired, the owner can place any restriction they like on their own property. If the HOA comes along later and places revitalized Covenants on your property, there might be a real mess and you'll want to probably hire a lawyer to protect your property. The HOA's action could be seen as a hostile takeover attempt and a slander of title. IMO, recording your own covenants would be more problematic than problem-solving because your HOA appears to be uncommonly stupid.




I gotta comb through the differences in my recorded c&rs and the "release" and new ones they enacted. What is funny is that if I recall the second set doesn't reference a hoa either. The hoa came later when the developer was finishing up. I think it came from a deal they made. Very confusing chain of events but the hoa modified the documents in 2001. That covenant made them voluntary/mandatory and I think they changed the language to give them sole enforcement authority.

I understand why so many people find mrta and hoa stuff confusing
WalterM4
(Florida)

Posts:29


09/20/2015 8:00 AM  
Kevin K: It almost sounds as if you live in the subdivision next to mine. Their builder returned 2 years after selling all of the properties, tried to start a mandatory HOA at the request of some trouble makers who did not get along with their neighbors. They tried to create the association based upon a 50 + 1 majority; however the builder had no legal right to do what he did, and it would have taken 100% of the members of the community to establish a mandatory HOA since they never had one before. They did start a voluntary association only because the first attempt got the community in hot water for a contract they signed with the power company for street lights. What a mess it was.
KevinK7
(Florida)

Posts:1343


09/20/2015 10:33 AM  
Posted By WalterM4 on 09/20/2015 8:00 AM
Kevin K: It almost sounds as if you live in the subdivision next to mine. Their builder returned 2 years after selling all of the properties, tried to start a mandatory HOA at the request of some trouble makers who did not get along with their neighbors. They tried to create the association based upon a 50 + 1 majority; however the builder had no legal right to do what he did, and it would have taken 100% of the members of the community to establish a mandatory HOA since they never had one before. They did start a voluntary association only because the first attempt got the community in hot water for a contract they signed with the power company for street lights. What a mess it was.



I had read some news articles from the mid 80s that when the new developer started building they promised the county they would make a mandatory HOA but then filed their documents anyway. There were talks about creating special taxing districts but some commissioners were afraid of establishing a precedent for developers to make neighborhoods with a bunch of amenities and then leaving with no way to sustain them placing the burden on the local municipalities. I believe the second developer created the couple common elements from the couple plats that remained. I have to double check. It is just strange. I would imagine things have become somewhat more standardized now. The way they did my neighborhood seemed like a bunch of half-brained business deals and contracts coupled with incompetent residents filing new covenants based on what they feel the neighborhood should be. That is why MRTA is kind of a blessing for me. Otherwise I would be at the whim of a board and a crap attorney.

I got enforcement letters for dirty mailboxes, potted plants, and lattices. They went after other homeowners for architectural control. They even passed covenants banning ownership of property against sex offenders (which in my opinion seems extremely illegal, especially since they did not use any clear definition of what an offender is). I even found properties that were not included in my neighborhood on their deeds (they still have the original name of the Plat before developer #1 took over) but that the HOA insisted they were under their control!

Once I get a free moment I planned on making a timeline complete with maps and images to help illustrate the matter for my neighbors.
GenoS
(Florida)

Posts:3328


09/20/2015 12:31 PM  
FS 720 has a section that provides for penalties for making "false statements", but it only applies while the HOA is still under developer control. That's one area of the law that needs to be changed. Anyone falsely claiming that another's property is encumbered by something that doesn't exist should be subject to legal reprecussions. It's tantamount to fraud.
GwenG
(Florida)

Posts:600


09/20/2015 1:04 PM  
Jean & Jack Winters are good people, but I am left to assume that the covenants allow for amending, and contain the words "as may be amended from time to time" also would the amendment be more restrictive or less restrictive than the original document?

Unknown what the Covenants say--it is only known that the process for amending was seriously flawed and nullified the amendment. The voting rights of the membership was strictly construed as to process; that was not followed and resulted in the outcome to nullify the amendment.

If the amendment was MORE restrictive than the Covenant, it would not be a lawful change and could nullify the amendment as well but that was not addressed in this case. Amendments can only address what is already in the Covenants and any changes must "flesh out", clarify or be removed/changed to adhere to superior law. The Covenants must provide not only the authority to amend but specify or refer to the exact process to effect an amendment.

I believe the Kaufman phrase "as amended from time to time" was meant to apply to changes in superior laws governing HOA's such as FS617 and FS720. It is defined as "...documentary language that has the effect of incorporating later-enacted "substantive" statutory changes into the governing documents of a community." Remedial or procedural changes are automatic because they do not affect contract or property rights. Without this language in governing documents, HOA owners are not subject to later-enacted SUBSTANTIVE legislative changes and the contract is, in effect, frozen in time to whatever property/contract rights existed at the time of incorporation.
GenoS
(Florida)

Posts:3328


09/20/2015 1:53 PM  
Posted By GwenG on 09/20/2015 1:04 PM
I believe the Kaufman phrase "as amended from time to time" was meant to apply to changes in superior laws governing HOA's such as FS617 and FS720. It is defined as "...documentary language that has the effect of incorporating later-enacted "substantive" statutory changes into the governing documents of a community." Remedial or procedural changes are automatic because they do not affect contract or property rights. Without this language in governing documents, HOA owners are not subject to later-enacted SUBSTANTIVE legislative changes and the contract is, in effect, frozen in time to whatever property/contract rights existed at the time of incorporation.

I'm sure this is something lawyers love to fight over. What distinguishes procedural changes vs substantial ones? This seems like fertile ground for billlable hours.

I'm having an issue right now along these lines. Since our HOA was started in 1988, well before FS 720 was enacted, the board's opinion is we do not have to follow FS 720. Sometimes we do, sometimes we don't.
GwenG
(Florida)

Posts:600


09/21/2015 10:23 AM  
Geno
Your association is seriously wrong if your association meets the criteria and definitions established by Florida to regulate HOA's. The definitions can be found in F720.301 and the applicability and exceptions are in FS720.302.

I am wondering exactly what is the rationale for excusing oneself from the FS720 statute if you are a mandatory HOA?



720.302 Homeowners' associations; purposes, scope, and application.--


(1) The purposes of ss. 720.301-720.312 are to give statutory recognition to corporations that operate residential communities in this state, to provide procedures for operating homeowners' associations, and to protect the rights of association members without unduly impairing the ability of such associations to perform their functions.

(2) The Legislature recognizes that it is not in the best interest of homeowners' associations or the individual association members thereof to create or impose a bureau or other agency of state government to regulate the affairs of homeowners' associations. 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. 720.301-720.312 are not intended to impair such contract rights, including, but not limited to, the rights of the developer to complete the community as initially contemplated.

(3) Sections 720.301-720.312 do not apply to:

(a) A community that is composed of property primarily intended for commercial, industrial, or other nonresidential use; or

(b) The commercial or industrial parcels in a community that contains both residential parcels and parcels intended for commercial or industrial use.

(4) Sections 720.301-720.312 do not apply to any association that is subject to regulation under chapter 718, chapter 719, or chapter 721; or to any nonmandatory association formed under chapter 723.

Further:

720.301(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.

A FL HOA is: 1- an association made up of parcel owners , 2- membership is a mandatory condition of parcel ownership, and 3-the association must be authorized to impose assessments that, if unpaid, may become a lien on the parcel.

If any of those conditions does NOT apply, you are NOT a FL statutory HOA and are not subject to FS720.

And incidentally, HOA'slack standing to revitalize expired CC&R's if they fail to meet any of those 3 criteria. Such is the case with my HOA; it does not meet #3 and should the DEO approve the revite, the approval will be challenged.
GenoS
(Florida)

Posts:3328


09/21/2015 7:44 PM  
Posted By GwenG on 09/21/2015 10:23 AM
Geno
Your association is seriously wrong if your association meets the criteria and definitions established by Florida to regulate HOA's. The definitions can be found in F720.301 and the applicability and exceptions are in FS720.302.

I am wondering exactly what is the rationale for excusing oneself from the FS720 statute if you are a mandatory HOA?

Thanks, Gwen, I am very familiar with F.S. 720. It's my homepage when I open Firefox

The board picks and chooses which parts of FS 720 they choose to pay attention to. The same goes for our CCRs. If it's convenient for them then they rely on it. If not they bend over backwards to avoid acknowledging it.

I've gone on at length in other threads about why they do this. The reasons are same as those they use to avoid doing a Reserve Study. They know that the fallout would entail raising assessments by an amount they consider to be unpalatable. Therefore, since we don't want to hear what FS 720 says in this area, we decide it doesn't apply to us. I say "we" and "us" loosely because I'm the only dissenter on the board. I motioned to have a reserve study done. The motion failed by a vote of 4-1 against. In the same manner I cannot, with my single vote, force the board to consult with an attorney to ask for an opinion on whether or not FS 720 applies to us as far as our reserves are concerned. They won't do it. They know what the answer would be and they don't want to raise assessments which would be necessary to comply with it.

Me? I want to avoid special assessments down the road.
GenoS
(Florida)

Posts:3328


09/21/2015 7:47 PM  
To paraphrase Upton Sinclair,

"It is difficult to get a board member to understand something, when keeping assessments low depends on his not understanding it."

SusanE6
(Florida)

Posts:102


09/21/2015 9:24 PM  
As I read all these blogs about HOAs and the Boards and attorneys that are associated with them all, I am truly sickened. I worked hard all my life as an RN, following specific rules and laws; doing my job as set forth by my license and my ethics. If I do something improper, I would lose my license. If I don't get the necessary education, I can not practice. I must do competencies every year to make sure I am updated on my scope of practice. I must get CEU's continually to make sure I am educated as per my practice.

And yet - here we have these businesses that take in large amounts of money and have uneducated volunteers running them, not adhering to any law because it is not enforceable; not being responsible to the people they represent(who are usually apathetic); not researching and educating themselves to do the right thing and be ethical and just. What a travesty of justice. And than you have the attorneys who profess they know Association law and run up huge bills while doing improper things and never being reprimanded or held responsible for their lack of knowledge.

So, now I am filing a complaint against my association for filing a preservation improperly and as I read this complaint, I realize that the association lawyer has done it improperly and charged my association a large bill that will cost them even more. And the Board chose this attorney as he had "18 years of experience with HOA law and knew his stuff". But yet, he really doesn't know the law, has written incorrect letters to the Board and now I must sue him to do it properly. Me, the person who was on the Board, trying to educate the Board to do the right thing while running this business; was censored because I cared more than any of the others; educated myself regularly on HOA law and updates; and now I am using my money to sue them into doing the right thing. WHY? Why is this allowed? Bad laws, bad Boards, bad attorneys and who gets to pay for all of this? A caring homeowner that loves the place she lives and has to take the Board to task for their bad decisions.

Who is responsible for all of this and why is it allowed to happen? Shame on the Florida legislature for allowing HOA Boards and attorneys for costing people living in their homes tremendous amounts of money and causing emotional stress and physical pain. When I bought my home, I thought I could enjoy the home, raise my children and retire in a home I really loved. I am surrounded by incompetent boobs that call themselves the Board - they have no idea how to run a business and have been spiraling downward towards ruination. There goes my hard earned money and sanity. And they hire a friend who is an attorney, fire a vendor who was doing an excellent job because a Board member had a friend who could do it better; and now are using volunteers for work that needs a licensed and insured vendor.

My HOA Board is improper; does not follow the law, does items that are probably illegal(if they could be enforced) and no one cares but me.

Now this MRTA thing raises its ugly head and they hire an attorney that has no idea what he is doing but charges lots of money. Why? Why isn't he reprimanded for his misinformation and poor decisions? MRTA is so important and yet this man rushes through and does it totally wrong. And he tells me that I am wrong about the research I did about my title as he felt I was preserved. He absolutely gave the wrong information to the Board and now he admits it in a letter the Board put out to the general membership. I did everything properly and now I am watching this man state "oh, yeah, I missed a few properties but I can fix this". he was wrong, admits it and still is wrong. Out of the 19 properties that are extinguished, he only mentions 8. What? He doesn't know MRTA, FS 720,712,617. Gwen, Geno and Kevin know more about MRTA than him.

So, the complaint gets filed this week; I am still considered a non member by the association; I was going to have problems with ingress and egress(my attorney took care of that)and I refuse to pay my assessment. Nope, they are not getting my money for incompetency. I will fight them and will start a campaign against these types of Boards and lawyers.

I just took my ACLS and BLS to make sure I can aid a unresponsive, pulseless person. I have to have this for my license and yet look at these Boards. Sure .it doesn't have exactly the same impact on a life but it is required for me to continue on in my practice. Why are HOA Boards not required to know their covenants, state laws, procedures - why? Come on - all these complaints, there should be an action from HOA's. No, apathy runs rampid.......

I will let you all know how my Board handles the complaint but I am sure they will ignore it just as they have in the past.

KevinK7
(Florida)

Posts:1343


09/22/2015 3:37 AM  
Have you considered looking into rules and filing a complaint with the bar? Maybe you can somehow try to get rid of this attorney and force the HOA to get a new attorney? Maybe one more reasonable.
WalterM4
(Florida)

Posts:29


09/22/2015 5:24 AM  
Gwen: Lets see if I remember thing correctly. FS 720.301 states that all documents required by the HOA include Articles of incorporation, Bylaws, and restrictions. Chapter 720.303 if I recall states that the documents must be filed with the clerks office in the county where the community exist. (none of this has been done in my community). Chapter 723 pertains to Mobile, and time share communities. Feel free to correct me, and Thank You for all of your contributions to this Blog.
GwenG
(Florida)

Posts:600


09/22/2015 8:21 AM  
WalterM4: I try to avoid relying on my memory haha...so I looked up these references. 720.301 entitled "Definitions" is all definitions of terms used in the statute. 720.303 is "meaty" and entitled "Powers and Duties". It is a very long and detailed section. One of the duties cited is to record initial governing documents in the county in which the property is located.

Interestingly, I see nowhere where it is REQUIRED for an HOA to have ANY governing documents-no Declaration, no Rules & Regs, no Articles or Bylaws. It presumes but does not require. I suppose an HOA could therefore be totally governed by 720. I don't know how an HOA could meet the requirements of a statutory HOA without a Declaration but I did not find anything that required a Declaration. Perhaps this could be a voluntary thing for an HOA, but in that case FS720 does not strictly apply. Seems that if you don't need HOA governing documents, the only thing that applies is FS617 Non-Profit Corporations. Please correct me if I missed something.

A non-profit corporation only has to file a yearly registration with name, business category, 3 officers and a place of service. I know this because I have a non-profit corporation in Florida.

Does your Association fulfill the 3 requirements of an HOA? If yes, then you are required to fund a Reserve per FS720 if you established one. The owners can vote not to have a Reserve or to waive funding for a fiscal year. But, if you have a Reserve, it is governed by FS720. Your fiduciary duty, not specifically stated in 720, is to adequately manage the common properties and that requires knowledge of their condition and age--which requires some kind of Reserve Study. It does not have to be done by a professional but should be a recognizable effort in the record aimed at adequately providing for major repair/replacement of the common element.

If you have a Reserve, what I would do is so state the applicability of 720 in a letter to the Board and certify the mail so that it is part of the Official Record. I would also request that a formal statement be sought by Legal Counsel as to your true status as an HOA subject to FS720. You can't pick and choose what you like/don't like from the law. Such a letter puts your Board on the hotseat and secures your position as a director who understood his fiduciary duty.

Then, if a homeowner should sue board directors individually, you might have a defense. I would not serve on the board because you are vulnerable to a civil lawsuit by an owner who might be injured by an unlawful action of the board.
GenoS
(Florida)

Posts:3328


09/22/2015 10:16 AM  
Posted By GwenG on 09/22/2015 8:21 AM
Interestingly, I see nowhere where it is REQUIRED for an HOA to have ANY governing documents-no Declaration, no Rules & Regs, no Articles or Bylaws.

Yep. Condo law (FS 718) it ain't.

Florida's HOA statute resembles its Condo statute in many ways but in many other ways the two are light years apart.

Regarding the applicability of new laws, in the article Living in a Florida HOA - Know Your Rights! the author says,

"... no new state laws can be applied retroactively to change a contract (your governing documents are a contract) unless the governing documents state they are subject to Fla. Stat. Ch. 720 'as amended from time to time,' or Ch. 617 or Ch. 607 if the HOA was formed prior to Ch. 720 being enacted."

... and ...

"The homeowner should also be aware that this does not mean every new law is not effective against a HOA. Laws that are procedural in nature will usually apply. Substantive laws that create more restrictions on the homeowner are usually not upheld."

My HOA was formed prior to FS 720 and the docs refer to FS 617, but without the language, "as amended from time to time". There is awareness that FS 720 applies in at least some fashion; the instructor at the board certification training that people here attended back in February handed out copies to everyone.

There is equally as much awareness of the "no new state laws can be applied retroactively" idea. We had reserves in place at turnover in 1994, but there were no laws regarding them at the time. Some other board members feel that FS 720.303(6) create "more restrictions" on the owners and, therefore, the paragraphs that dictate how reserves are to be calculated and managed do not apply.

We hear constantly how our reserve accounts are in pretty good shape dollar-wise when compared to how other HOAs are doing. It's hard to gather support to fix something that's not broken. I contend that it is broken but nobody wants to hear it.
KevinK7
(Florida)

Posts:1343


09/22/2015 11:59 AM  
Posted By GenoS on 09/22/2015 10:16 AM
Posted By GwenG on 09/22/2015 8:21 AM
Interestingly, I see nowhere where it is REQUIRED for an HOA to have ANY governing documents-no Declaration, no Rules & Regs, no Articles or Bylaws.

Yep. Condo law (FS 718) it ain't.

Florida's HOA statute resembles its Condo statute in many ways but in many other ways the two are light years apart.

Regarding the applicability of new laws, in the article Living in a Florida HOA - Know Your Rights! the author says,

"... no new state laws can be applied retroactively to change a contract (your governing documents are a contract) unless the governing documents state they are subject to Fla. Stat. Ch. 720 'as amended from time to time,' or Ch. 617 or Ch. 607 if the HOA was formed prior to Ch. 720 being enacted."

... and ...

"The homeowner should also be aware that this does not mean every new law is not effective against a HOA. Laws that are procedural in nature will usually apply. Substantive laws that create more restrictions on the homeowner are usually not upheld."

My HOA was formed prior to FS 720 and the docs refer to FS 617, but without the language, "as amended from time to time". There is awareness that FS 720 applies in at least some fashion; the instructor at the board certification training that people here attended back in February handed out copies to everyone.

There is equally as much awareness of the "no new state laws can be applied retroactively" idea. We had reserves in place at turnover in 1994, but there were no laws regarding them at the time. Some other board members feel that FS 720.303(6) create "more restrictions" on the owners and, therefore, the paragraphs that dictate how reserves are to be calculated and managed do not apply.

We hear constantly how our reserve accounts are in pretty good shape dollar-wise when compared to how other HOAs are doing. It's hard to gather support to fix something that's not broken. I contend that it is broken but nobody wants to hear it.



That is interesting. I don't believe my original covenants made mention to 617 or 720. Drafted in 1979, I believe they just say "no this, no that." I don't even think all the releases and amendments make mention of it as well. That could make for an interestimate argument.
GwenG
(Florida)

Posts:600


09/22/2015 3:08 PM  
730.303(6)(b) states:

Once an association provides for reserve accounts pursuant to paragraph (d), the association shall thereafter determine, maintain, and waive reserves in compliance with this subsection.

It is true that FS617 (prior to birth of FS720) does not have a provision that references Reserve Accounts. I suppose an argument could be made that the requirements of FS720 are a retroactive application of the law where an association did not express the intent to be bound by future legislation. IMO, this is remedial and curative legislation which seeks to provide protection to the public where Reserves have already been established. You'll never know until someone challenges your HOA's practice and discovers the intent of the legislation and the issue is declared.

Lawyers make their living off this stuff.
GwenG
(Florida)

Posts:600


09/23/2015 9:55 AM  
@SusanE6

Here is a link to a similar case in 1992 whereby the HOA attempted to forbid ingress/egress to property owners who refused to rejoin the MRTA-expired Covenants. As you can see, the homeowners prevailed against the HOA.

http://www.ccfj.net/courtdecmand.html
SusanE6
(Florida)

Posts:102


09/23/2015 11:27 AM  
Thanks, Gwen.

Our attorney in his complaint referenced the ingress and egress; apparently it has nothing to do with the declaration, it is mentioned in the dedication of the plat that property owners have the right to enter into the property and it is forever.

We have looked on the original docs - no mention of state law and adhering to this; these were written in 1983/84. The 1991 amendment does not reference adhering to state law and hopefully the 2006 amendment will be deemed illegal as the wording to the original docs state that the docs may not be renewed in a 20 year period.

It will become very heated back here in my subdivision when they get the complaint. It should be next week but I will be away. Already the neighborhood is upset about the MRTA letter I sent to each homeowner - it has been fodder for lots of gossip.

Sadly, my friend down the street also was preserved improperly - her title was dated 12/1984 and the Association attorney states she is preserved as she had the language of the covenants on her deed. Interesting. She has asked for my attorney's # so there just might be two homeowners looking into suing the association. Another homeowner whose property was extinguished has not signed the papers from the Association attorney yet - she is having a lawyer look into her title(her husband is a retired judge).

So, as people are starting to see things were not done properly, maybe they will start to question the behavior of the Board and their choices.
SusanE6
(Florida)

Posts:102


09/23/2015 11:33 AM  
correction : the docs may not be amended in 20 years. Our attorney found this little sentence in our original docs and was amused by it. Stated the original docs were written by a very good attorney that knew what was needed to make things easier in years to come. Our amended docs were written by attorneys that really knew nothing about writing docs. However, I am wondering if the amended docs can even be utilized?
SusanE6
(Florida)

Posts:102


09/23/2015 11:39 AM  
Article on the court case was very interesting, Gwen. Thank you.
GwenG
(Florida)

Posts:600


09/23/2015 6:17 PM  
SusanE6: Once the original Covenants expire, ALL the subsequent amendments also expire.
SusanE6
(Florida)

Posts:102


09/23/2015 7:23 PM  
In the preservation by the Association attorney, he included the amended documents stating they were preserved with the original docs. He included them as exhibits for the preservation.
GwenG
(Florida)

Posts:600


09/23/2015 7:28 PM  
That would be correct in a preservation because all documents are still in effect in a preservation and are simply being extended for another 30 years.

In an expiration, the amendments can be included as "expired" documents that the HOA wishes to revitalize. However, if revitalization is not approved, the amendments remain dead as a doornail-- as do the Covenants.
VickiC3
(Florida)

Posts:26


09/23/2015 8:14 PM  
What are some reasons a revitalization would not be approved?
GwenG
(Florida)

Posts:600


09/24/2015 8:45 AM  
I believe that DEO would not approve a revitalization that was deficient in providing all required documents. For example, if the DEO was "missing" the affidavit from the BOD attesting that the revitalization vote was in excess of 50%, the revite package would be rejected. Likewise, if it was missing a plat map named in the revitalization submitted, it would be rejected.

They would also not approve a revitalization if received from an HOA that did not meet the Florida criteria of an HOA. For instance, if a voluntary HOA wanted to revitalize, the revite package would be rejected "not eligible".

From what I have learned by speaking with DEO, it is a somewhat cursory review but an attorney does receive the package. There is no scrutiny of the underlying documentation. It is up to the homeowners who object to revitalization to discover a challengable flaw and submit and objection and focused review of the decision.

It is my belief that the DEO WANTS to approve revitalizations for HOA's and are biased in that direction.
GenoS
(Florida)

Posts:3328


09/24/2015 1:00 PM  
Posted By GwenG on 09/24/2015 8:45 AM
It is my belief that the DEO WANTS to approve revitalizations for HOA's and are biased in that direction.

I think that's a given.

Another reason why they might deny a revitalization would be the appearance of multiple revitalization proposals from competing organizing committees. An unlikely edge case, but it could happen. FS 720.404(3)(c) says that a revitalized declaration may "Govern fewer than all of the parcels governed by the previous declaration". A subset of parcel owners could band together and attempt revitalization for their own area of the community (effectively seceding from the HOA) while a different set of parcel owners might be proposing to revitalize all of the properties previously encumbered. There's nothing that says the "organizing committee" has to be restricted to officers or directors.

As for how closely the DEO scrutinizes submissions, I don't think the state looks at anything very closely.

For a preservation action (before anything has expired) there is a lot less red tape and essentially the only things needed are a board vote, a re-recording of documents, and proper notice to the owners.

When my HOA preserved in 2012 the board's package of documents that were re-filed was missing the most recent amendment to the CCRs. Lord only knows how the lawyers would feast on that one if it ever ended up in court.
KevinK7
(Florida)

Posts:1343


09/24/2015 10:26 PM  
Posted By GenoS on 09/24/2015 1:00 PM
Posted By GwenG on 09/24/2015 8:45 AM
It is my belief that the DEO WANTS to approve revitalizations for HOA's and are biased in that direction.

I think that's a given.

Another reason why they might deny a revitalization would be the appearance of multiple revitalization proposals from competing organizing committees. An unlikely edge case, but it could happen. FS 720.404(3)(c) says that a revitalized declaration may "Govern fewer than all of the parcels governed by the previous declaration". A subset of parcel owners could band together and attempt revitalization for their own area of the community (effectively seceding from the HOA) while a different set of parcel owners might be proposing to revitalize all of the properties previously encumbered. There's nothing that says the "organizing committee" has to be restricted to officers or directors.

As for how closely the DEO scrutinizes submissions, I don't think the state looks at anything very closely.

For a preservation action (before anything has expired) there is a lot less red tape and essentially the only things needed are a board vote, a re-recording of documents, and proper notice to the owners.

When my HOA preserved in 2012 the board's package of documents that were re-filed was missing the most recent amendment to the CCRs. Lord only knows how the lawyers would feast on that one if it ever ended up in court.



An interesting take similar to my idea of making new amendments to supersede any revitalized documents would be to initiate a revitalization on only my property and then under the new revitalized documents for just my parcel I amend it with a vote of the membership (me) and achieve 100% approval to eliminate the covenants. A bit cumbersome but it may just work...
GwenG
(Florida)

Posts:600


09/25/2015 7:53 AM  
KevinK7 posted:

An interesting take similar to my idea of making new amendments to supersede any revitalized documents would be to initiate a revitalization on only my property and then under the new revitalized documents for just my parcel I amend it with a vote of the membership (me) and achieve 100% approval to eliminate the covenants. A bit cumbersome but it may just work.

Interesting approach indeed though I doubt that Florida would give you standing as the HOA corporate to undertake revite. You could place a covenant on your deed prohibiting private government covenants on your property for 30 years. I thought of doing that on my own property.
KevinK7
(Florida)

Posts:1343


09/26/2015 7:37 AM  
Posted By GwenG on 09/25/2015 7:53 AM
KevinK7 posted:

An interesting take similar to my idea of making new amendments to supersede any revitalized documents would be to initiate a revitalization on only my property and then under the new revitalized documents for just my parcel I amend it with a vote of the membership (me) and achieve 100% approval to eliminate the covenants. A bit cumbersome but it may just work.

Interesting approach indeed though I doubt that Florida would give you standing as the HOA corporate to undertake revite. You could place a covenant on your deed prohibiting private government covenants on your property for 30 years. I thought of doing that on my own property.



Definitely not for me. Since my HOA is not a HOA by legal definition (because their attorney tried playing law games when converting to mandatory making it technically voluntary to join), my original documents never permitted a mandatory association. While the HOA files a preservation document, it would be considered a false claim, as well as being null and void since they filed after the 30-year expiration.

BUT for someone who is in a mandatory association, I am sure they can try to do this to help protect against a runaway board, but I also believe doing something like this would probably bring a lengthy and costly challenge from the board and their attorneys.
SusanE6
(Florida)

Posts:102


09/26/2015 11:43 AM  
But if the Board does not have the funds for a lengthy law suit....... Might be the way to go.....
KevinK7
(Florida)

Posts:1343


09/26/2015 2:49 PM  
I suppose it would be costlier for the HOA since they would most likely sue for violations. And in arguments it may be beneficial. The homeowners attorney can illustrate how they followed the letter and spirit of the law to help preserve the marketability of that property.
VickiC3
(Florida)

Posts:26


09/26/2015 7:49 PM  
First this whole reviving/revitalizing is giving me anxiety! Here's another question...I have two girls, neighbors and renters, that have worked for HOA lawyers. They told me our whole voting procedure is invalid. They said the ballots must come with an envelope, you put your ballot in the envelope and sign and date it. That envelope goes inside another envelope to be mailed or delivered. In our case most went to a PO Box and at least two were delivered without an envelope. No one had an inside envelope. The president decided to count the votes with his wife who holds no position on the board. He asked one of the board members to come but he couldn't make it at that time. I know the VO wasn't there because she told me they told her how many ballots there were. Are my neighbors right? Is there suppose to be an inside signed envelope? I would think the counting of the ballots could have been opened up to more homeowners and certainly not counted by the president and his wife. What would keep them from changing votes to go their way? Another neighbor said where is this written in the statute so we have proof to show the lawyer. I found this written for California but I'm in Florida. Also when everything is ready to be submitted for approval I'm reading there has to be a meeting, everyone gets copies and we have to approve this in writing even if we are not changing anything. Anyone know the answers? I've about had it. Thanks
GwenG
(Florida)

Posts:600


09/27/2015 9:35 AM  
Vicki-the answer to almost all your questions is in your corporate documents --> Bylaws. You might be able to reduce your anxiety by NOT listening to yak yak and reading your voting law. The two-envelope procedure is common and if applicable to your HOA, will be proscribed in your bylaws. Your bylaws set forth the entire voting and election procedures. If your bylaws are silent on any provision, which is unlikely, then you would look to FS720. In general, BOTH must be consulted to ascertain the superior document.

California (and other states) HOA statutory laws are not like Florida's (which are copious to say the least). Also, HOA's are corporations and those laws are different for different states and contain voting provisions (these can also defer to HOA's). Your governing documents must be consulted first as Florida's Homeowner Act often defers to the HOA's governing documents. Then check FS720 to see if there is a "trumping" provision.
WalterM4
(Florida)

Posts:29


09/28/2015 4:39 AM  
Gwen: Is it possible that the DBPR may be able to provide some answers on proper voting regulations; after all the HOA's are supposed to be registered with the agency. My HOA is not registered as is required. Sunbiz has an alert stating when an association files it's annuals they must file with the department, of course they don't enforce the requirement. You have suggested filing a slander of title action for the HOA's wrongful filing of the preservation notice as an encumbrance on the title. Do you know of any cases involving slander of title that have been won.
KevinK7
(Florida)

Posts:1343


09/28/2015 8:16 AM  
Posted By WalterM4 on 09/28/2015 4:39 AM
Gwen: Is it possible that the DBPR may be able to provide some answers on proper voting regulations; after all the HOA's are supposed to be registered with the agency. My HOA is not registered as is required. Sunbiz has an alert stating when an association files it's annuals they must file with the department, of course they don't enforce the requirement. You have suggested filing a slander of title action for the HOA's wrongful filing of the preservation notice as an encumbrance on the title. Do you know of any cases involving slander of title that have been won.



In my most recent contact with the DBPR I was told that enforcement of the statutes are up to the individual - not the state. This is so even in the case of false or erroneous information being filed.

So basically, the state gives the benefit of the doubt to the HOAs. I had experienced this with my last neighborhood when a HOA that was not even mine filed amended covenants and demanded I pay mandatory assessments. I was being threatened with lawsuits, fines, and fees and I could not do a thing but possibly expend thousands to fight back (against a corporation that had a much bigger piggy bank)
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