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Subject: FL Covenant Expiration MRTA
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GwenG
(Florida)

Posts:600


10/16/2015 8:32 AM  
@SusanE6 who posted: I just keep a log of all the things they are doing improperly so I never have to be a member again.

Check your Bylaws and Articles (which are not technically expired but essentially DOA). I bet you are a member of the Corporation by virtue of owning a parcel. You are simply not restricted per Covenants/Rules. The liability remains... your only recourse against the Corporation's misdeeds is to do as you are doing...sue the Corporation and perhaps the individuals in the Gang.
SusanE6
(Florida)

Posts:102


10/16/2015 9:14 AM  
I understand that I am a member but the Board and their attorney have made me a non member with no standing in the community. Would I be a fool not to tag along with what they are saying and than when they are not providing me with material from the Association....... I realize that they don't know what they are doing but the fact that the attorney wrote this in a letter and published it to the membership.....I am wondering how they are treating the other three that have not signed the affidavit to return to the fold? I see they are still cutting their lawns, letting them use the pool, and giving them info as to the Association. I am sure they are payng still but their attorney did state if they didn't sign, they got nothing and no longer were members.

Puzzling and perplexing to say the least. But I am no longer considered a member by the Board. I have absolutely no rights in their eyes.
SusanE6
(Florida)

Posts:102


10/16/2015 9:15 AM  
And I have no problem suing each member of this Board for their improper and selective behavior. If this is how we run businesses in Florida, someone should be protecting our rights.
GwenG
(Florida)

Posts:600


10/27/2015 8:41 PM  
@SusanE6: Has your HOA answered your lawsuit?

Your observation about businesses being run poorly is, I believe, a common characteristic of non-profit corps running HOA's/Condos. Especially HOA's. Legislators refuse to make changes to laws to put HOA's on a par with Condos and boards are permitted to do as they please because of the absence of laws, poorly-written laws and ambiguous laws. Without clear laws and active oversight and regulation by a governmental agency, HOA boards can do what they want without fear of reprisal. Homeowners have only civil redress available to contest violations of civil rights.

The "someone" protecting our rights is YOU. Your lawsuit has far-ranging effects in the HOA community and outside the community. Lawsuits seems to be the language that HOA's understand because it involves expensive attorneys, their insurer and the pocketbook. By making your complaint public, you are insisting that the judicial system protect your rights--and by extension--the rights of others against abusive HOA's.
SusanE6
(Florida)

Posts:102


11/01/2015 5:08 PM  
So far, no response from the Association on my complaint. They have 20 business days to respond. I think they will opt to default, thinking this would be cheaper. However, they still have to amend the preservation they put into the county's official records. This is so unbelievable...
SusanE6
(Florida)

Posts:102


11/01/2015 5:08 PM  
So far, no response from the Association on my complaint. They have 20 business days to respond. I think they will opt to default, thinking this would be cheaper. However, they still have to amend the preservation they put into the county's official records. This is so unbelievable...
VickiC3
(Florida)

Posts:26


11/02/2015 8:45 PM  
Well I talked to our HOA lawyer today. Mr. Nice Man has turned into Mr Nasty! I sent a certified/registered letter removing my vote. I got my part back so I called him to ask if he changed my vote. He said yes. So I said where does it go from here? He said I've already discussed this with you. Ok well if you take one vote away you do not have a majority! He said I'm in a meeting and and busy so challenge away! Ok jerk! The state told me HOAs are not governed by the state only HOAS for condos, timeshares and trailor parks. Well yes that makes sense! What are we doing then? We're suppose to have a meeting this month. Can't wait!
BruceS3
(Florida)

Posts:33


11/03/2015 5:14 AM  
What do you mean by the HOA is not governed by the state? I thought they had statues that gave direction. (Not trying to be smart, but definitely curious as I am the president of our HOA and we follow the Florida statues for how we operate.)
VickiC3
(Florida)

Posts:26


11/03/2015 5:24 AM  
I called the Department to see about filing a complaint because our lawyer is clearly not doing things right. Examples...the president counted the votes by himself...the lawyer does not know what majority is, the lawyer said he has copies of ballots not the originals, he said the president has the envelopes the ballots came in and the president says the lawyer has them, their were ballots left on a doorstep and it goes on. The person I spoke with told me there is no where to file complaints about revitalizing because they only oversee the HOAs for condos, timeshares and trailor parks. It is in writing on their website. So yes we have our covenants and restrictions but I guess if there's an issue you turn to an HOA attorney. I just want things done right for our neighborhood. More than half of our homeowners and had enough and don't care what happens anymore. We are a small community, only 37 homes.
GwenG
(Florida)

Posts:600


11/03/2015 5:24 AM  
@VickiC3: This lawyer is risking a lot if he/she goes ahead with a revitalization knowing that there is not a sufficient majority. IMO you should follow up your conversation with him--put his words and actions in writing and let him know that his professional integrity might be compromised if he/she presents a non-ratified revite vote to DEO. The subsequent challenge will reveal the lawyer's behavior in the revite process.

The "Challenge" that may have been referred to is the after-the-fact administrative challenge should the lawyer submit a false revite package to DEO; you will have 21 days to submit an administrative challenge and the lawyer's behavior will be scrutinized in the judicial review.
VickiC3
(Florida)

Posts:26


11/03/2015 5:25 AM  
Yes we have statues to follow but our lawyer doesn't know them and told a homeowner to look them up for him. We are his fourth revitalization. Our homeowners had no say in who was chosen.
GwenG
(Florida)

Posts:600


11/03/2015 5:46 AM  
BruceS3 posted: What do you mean by the HOA is not governed by the state? I thought they had statues that gave direction. (Not trying to be smart, but definitely curious as I am the president of our HOA and we follow the Florida statues for how we operate.)



There is a huge difference in the relief and remedies available to owners of condos versus HOA's.

Yes, there is a huge body of statute for HOA's, but no where in those laws do homeowners have an opportunity to file a complaint except in two areas: elections and recall of directors. That's it for oversight and regulation of HOA's. The only relief available to homeowners to contest an action is civil lawsuit. That option virtually assures that HOA boards can ignore the HOA statutes because homeowners rarely sue the Association--they just sell out and move (if they can).

That is unlike condos, timeshares and mobile home parks. These homeowners have access to filing complaints to the State Dept of Business Regulation. That department handles most typical homeowner complaints and intervenes in the process with investigation, interpretation, recommendation, mediation etc. A small amount is assessed each unit and paid by the Association to the State to fund the DPBR to perform this service (I think it is currently $4).

There have been bills drawn up to be presented in legislature to reform the HOA law to provide that HOA owners receive the same oversight protection from the state as the other forms of ownership. These bills have had limited success and have been largely ignored. The only new requirement that passed 3 years ago was to provide that HOA's register with the State but even this has "no teeth" i.e. no penalty for failing to register. So, it too is ignored by many HOA's, just like most of the other HOA laws.

The bill last year did not even make it into a committee... It will be presented again this year. The details of the bill (orig 2013) are summarized by the website: ccfj.net:

http://www.hoareformbill.net/index2013.html
GwenG
(Florida)

Posts:600


11/03/2015 5:52 AM  
Dang I wish there was a way to fix a post after submitting!

The link to the bill to be presented to legislature in 2016 session is:

http://www.hoareformbill.net/index14.html
VickiC3
(Florida)

Posts:26


11/03/2015 6:24 AM  
Where do you fils a complaint?
SusanE6
(Florida)

Posts:102


11/03/2015 6:47 AM  
Reading all of the recent posts makes one very sad. Here we live in this country with all the laws and regulations and people that live in HOAs are not able to do a thing against ruthless Boards and ignorant attorneys. If I was an attorney in Florida representing HOAs, I would be ashamed of the way HOAs are treated. But these attorneys make tremendous amounts of money for the Boards and Associations. Very, very sad. Most of the people who post on this discussion know more than attorneys. Trying to talk with my Board about MRTA was like talking to a wall - they knew better and used an attorney with 18 years of experience. Unfortunately, they did a lot of the research into the titles to save money and it is now going to cost them much more than they originally thought. Uneducated Board members are the ruin of the Association and yet Florida does nothing to make sure they are able to run the business of the Association. If any other business was run the way an Association is, there would be all kinds of investigations going on. I read Vicki's post with great interest - our Board was counting ballots before the meeting for the general election. When told this was improper - they shrugged their shoulders and continued. And the one ripping open the ballots was a former mayor who should have known better.

Good luck, Vicki. I still think concerned homeowners that really care what goes on should go to Tallahassee and demand to talk to the legislature. It has already been done but maybe we need to band together and make some noise.....
VickiC3
(Florida)

Posts:26


11/03/2015 7:32 AM  
Thanks so much....
GwenG
(Florida)

Posts:600


11/03/2015 7:37 AM  
Vicki, if, after the DEO has reviewed and approved the revitalization package submitted by your Association, you believe that the statutes and your governing documents were not followed prior to submission and review, you have the opportunity to petition the Div of Administrative Hearings to review the DEO decision within a very short time after approval.

After the DEO approval, the HOA is REQUIRED to advise members of the decision immediately. "Immediately" is not defined in the statute.

Submit a petition to Div of Administrative Hearings for a formal hearing before an Administrative Law Judge, who will decide the issue. An Administrative Law Judge will hold a formal hearing and review of the DEO decision. The website is: https://www.doah.state.fl.us/ALJ/

If no challenge is filed, DEO's determination becomes final.

GwenG
(Florida)

Posts:600


11/17/2015 3:34 AM  
@Vicki

09/09/2015 9:27 AM
Hi...our HOA stands for 50 years, however everything else expired in June 2015. The board is trying to revitalize. I have some simple questions that are causing much confusion. We have 37 homeowners. We had a vote.

Vicki, your problems are temporarily over. The 60 days to submit the revitalization package expired at some point prior to 11/9 because you said above that the vote had already been taken as of 9/9. The law states that the revite package/vote must be submitted to DEO within 60 days after affirmative member revite vote. The train has left the station and the entire process must be restarted by your capable attorney.



720.406 Department of Economic Opportunity; submission; review and determination.—
(1) No later than 60 days after the date the proposed revived declaration and other governing documents are approved by the affected parcel owners, the organizing committee or its designee must submit the proposed revived governing documents and supporting materials to the Department of Economic Opportunity to review and determine whether to approve or disapprove of the proposal to preserve the residential community. The submission to the department must include:
(a) The full text of the proposed revived declaration of covenants and articles of incorporation and bylaws of the homeowners’ association;
(b) A verified copy of the previous declaration of covenants and other previous governing documents for the community, including any amendments thereto;
(c) The legal description of each parcel to be subject to the revived declaration and other governing documents and a plat or other graphic depiction of the affected properties in the community;
(d) A verified copy of the written consents of the requisite number of the affected parcel owners approving the revived declaration and other governing documents or, if approval was obtained by a vote at a meeting of affected parcel owners, verified copies of the notice of the meeting, attendance, and voting results;
(e) An affidavit by a current or former officer of the association or by a member of the organizing committee verifying that the requirements for the revived declaration set forth in s. 720.404 have been satisfied; and
(f) Such other documentation that the organizing committee believes is supportive of the policy of preserving the residential community and operating, managing, and maintaining the infrastructure, aesthetic character, and common areas serving the residential community.
(2) No later than 60 days after receiving the submission, the department must determine whether the proposed revived declaration of covenants and other governing documents comply with the requirements of this act.
(a) If the department determines that the proposed revived declaration and other governing documents comply with the act and have been approved by the parcel owners as required by this act, the department shall notify the organizing committee in writing of its approval.
(b) If the department determines that the proposed revived declaration and other governing documents do not comply with this act or have not been approved as required by this act, the department shall notify the organizing committee in writing that it does not approve the governing documents and shall state the reasons for the disapproval.
History.—s. 14, ch. 2004-345; s. 10, ch. 2004-353; s. 439, ch. 2011-142.
KevinK7
(Florida)

Posts:1343


11/17/2015 1:11 PM  
So how does someone find out if this information has been submitted or if the department had made a determination? I am concerned because the revitalization committee in my neighborhood has been less than forthcoming. They wanted to avoid a meeting by trying to get everyone to sign consent forms, lying along the way. I am worried that they will submit regardless of the results,
GwenG
(Florida)

Posts:600


11/17/2015 2:59 PM  
Phone Rozell McKay at 850-717-8480 at the Dept of Econ Opportunity. Tell him the Association name and he will look it up and give you a status.

DEO is required to notify the association in writing of approval or denial and the Association must inform the members "immediately". "Immediately" is not defined in the statute so an interested member must keep on top of the process once the revite package has been submitted for review.

The post-approval or denial window to challenge is very brief. The deck is stacked against the HOA consumer in all steps of the review process. In my opinion, there should be a website with all revite submissions logged in and any status changes noted.
SusanE6
(Florida)

Posts:102


11/21/2015 11:00 AM  
The Board had a meeting on Monday night and discussed my membership in the Association. Since I did not sign the papers their attorney drew up to be readmitted to the Association, their lawyer states we are no longer members and that is that. It came from their attorney with 18 years of experience as an HOA lawyer. They tried very hard for us not to be able to use the streets but their attorney made it clear to them this was illegal. They are now removing us from the cable(we don't care), we can not use the community pool(never did anyway) and we don't get lawn service(we never did get service as our home is xeroscaped). So, what can they do to us?

They have the proposed budget all made up and my neighbor gave us a copy. They forgot to remove us from the equation so they are really minus our assessment. They reduced the reserves drastically and kept the assessment the same as last year. Insurance went up, cable went up, legal fees really went up and yet they didn't figure this into the budget - they just reduced reserves. They have all kinds of projects proposed but didn't project this in the new budget. I was the treasurer for almost five years and very carefully made a budget that took all things into consideration. I was very transparent in my financial reports - this Treasurer has no idea what is in reserves and her checking account is half of what it should be. I gave Profit and loss sheets, balance sheets and a very detailed report at Board meetings. This woman gives nothing; I wrote the newsletter and informed homeowners about all financial info; they do not. They just approved a heat pump for the pool without bids, adequate info and homeowner input. They are collecting donations from the homeowners for the pump and have no idea what type of money will be utilized for the operation of this machine.

I have not heard from my attorney on the lawsuit for MRTA but hopefully will in the next week. The Treasurer has not budgeted for any lawsuit and they never mention it at any Board meeting. No one but a select few know of the lawsuit against the Association for improperly preserving the docs.

Getting better and better - how do these individuals live with themselves - they are cheating the homeowners and the homeowners don't seem to care. Only one homeowner at the Board meeting. One. And this was the proposed budget meeting. No questions about MRTA, law suit, reserves.......
KevinK7
(Florida)

Posts:1343


11/21/2015 12:38 PM  
Part of me believes these people do not think they are cheating a or doing anything wrong. Some simply do not understand.

One homeowner contacted me after learning the HOA foreclosed on some properties even though they told homeowners they have no lien rights. They thought those who were "anti-HOA" were upset that they didn't have a voice and even though they acted fraudulently regarding things like liens and MRTA. They were willing to live with the liens and foreclosures and such because they liked their lawn service and clubhouse access.

I explained the matters of liability and stated that if they thought their property was safe because the board says they won't act improperly in the future to think again. The hoa said they didn't have lien rights all the while going after homeowners (including myself).

They just don't get it...

But recently I saw some homeowner get a notice to remove something from their property. They got real upset. I explained to them what they needed to do. They stopped complaining and just removed the thing from their property.
SusanE6
(Florida)

Posts:102


11/21/2015 1:28 PM  
What is with this homeowner apathy? Do homeowners not understand that together we can make a difference? I watch in total amazement that the homeowners listen to every word these rogue Board members feed them. I, when I was Treasurer, was so honest and upfront and I guess the homeowners didn't care that I worked so hard for them. It was all for naught. All my hard work meant nothing - they drove me off the Board so they could have these uninformed, uneducated buffoons run the Board. Years ago the last Board drove our Association to the brink of bankruptcy with an infrastructure that was falling down. I went to classes, expos, other HOA meetings to educate myself and the Board as to what needed to be done. For the first time they had reserves, fixed the infrastructure and had them running meeting properly. We had a great newsletter and RESERVES. Now, they are running through the reserves like it is a continuous fund of money; they are improperly preserving the docs and doing inappropriate things. And the homeowners love them. What the heck??????
TimB4
(Virginia)

Posts:16542


11/21/2015 2:08 PM  
Posted By SusanE6 on 11/21/2015 1:28 PM
What is with this homeowner apathy? . . . I, when I was Treasurer, was so honest and upfront and I guess the homeowners didn't care that I worked so hard for them. . . . they drove me off the Board so they could have these uninformed, uneducated buffoons run the Board. . . . For the first time they had reserves, fixed the infrastructure and had them running meeting properly. We had a great newsletter and RESERVES. Now, they are running through the reserves like it is a continuous fund of money; they are improperly preserving the docs and doing inappropriate things. And the homeowners love them. What the heck??????




Susan,

To be honest, what you did (and I am currently doing) is not really seen by the average member. They likely saw increased assessments and nothing tangible to show for it (or nothing that affected them directly). If this Board is paving streets, pruning trees, painting curbs, etc., the members see something tangible for their money.

As an example: My Association hired an Arborist to evaluate the trees in the area and prioritize the work that needed done. We established a 5 year plan based off of the evaluation. For 2 years I worked on the Priority 1 and 2 trees. However, those trees were barely seen by anyone and we were getting complaints about removing trees and not replanting. Well, last year I chose to ignore the high priority trees and worked on the lowest priority. Even though these trees were the healthiest and present no danger to anyone, these were the trees that the members could see and impacted them directly (branches hanging over cars, brushing up against homes, etc.). You should have heard the compliments. Although these trees could have (and should have, in my opinion) waited another 2 years before being addressed, the members saw some bang for their bucks and were happy.
SusanE6
(Florida)

Posts:102


11/21/2015 2:55 PM  
I did the same thing as Treasurer - started a tree trim program as our neighborhood has hundreds of trees on the common ground. I worked hard to get them trimmed and maintain the program to have them pruned on a rotation basis. the new Treasurer has stopped this and changed it to only elevating the trees over the streets - heck with the beautiful trees on the common ground. I also replaced a dangerous bridge, carefully using our new reserves and replacing them before doing another project. Replaced all the aging street lights, fixed all the sidewalks, cleaned out ditches, etc. Always maintaining a good checking account and reserve amount. Had the same assessment for five years and had a nice amount in the reserves. Had only vendors that were licensed and insured do any work in the Association. Made sure everyone had statements monthly and worked with people who had problems paying. It was a strong association but one Board member wanted control. She was retired(I am not) and had plenty of time to rile up the other Board members - they censored me for being too honest and hard working. When MRTA came up, they went with an attorney that had no knowledge of MRTA and was the cheapest person they could find. I am now involved in MRTA by removing my name from the Association and have an active lawsuit going which they are totally ignoring. They now are using homeowners to do work that vendors use to do, going through the reserves, have a book keeper - we only have 76 homes. They needed an update on insurance and cable - I worked hard and got them both before I resigned. They now are canning the insurance company(a shame because they are the best) and removing me from the cable(which I think is illegal). I am sadly watching everything go down the drain. I truly loved my neighborhood but it has become a huge social club - parties are more important than business. MRTA may be the only way I can keep my home but be separated from a group of hateful, malignant people.

Good luck, Tim, it sounds similar to my Association.......
JohnC46
(South Carolina)

Posts:8827


11/21/2015 3:25 PM  
Sue

I have tied biting my tongue but I cannot resist.

You were just awesome darlin. Enjoy living out on your own now and let them fools do as they wish. Of course, do not expect many invites over for a holiday social...LOL

KevinK7
(Florida)

Posts:1343


11/21/2015 3:43 PM  
Posted By TimB4 on 11/21/2015 2:08 PM
Posted By SusanE6 on 11/21/2015 1:28 PM
What is with this homeowner apathy? . . . I, when I was Treasurer, was so honest and upfront and I guess the homeowners didn't care that I worked so hard for them. . . . they drove me off the Board so they could have these uninformed, uneducated buffoons run the Board. . . . For the first time they had reserves, fixed the infrastructure and had them running meeting properly. We had a great newsletter and RESERVES. Now, they are running through the reserves like it is a continuous fund of money; they are improperly preserving the docs and doing inappropriate things. And the homeowners love them. What the heck??????




Susan,

To be honest, what you did (and I am currently doing) is not really seen by the average member. They likely saw increased assessments and nothing tangible to show for it (or nothing that affected them directly). If this Board is paving streets, pruning trees, painting curbs, etc., the members see something tangible for their money.

As an example: My Association hired an Arborist to evaluate the trees in the area and prioritize the work that needed done. We established a 5 year plan based off of the evaluation. For 2 years I worked on the Priority 1 and 2 trees. However, those trees were barely seen by anyone and we were getting complaints about removing trees and not replanting. Well, last year I chose to ignore the high priority trees and worked on the lowest priority. Even though these trees were the healthiest and present no danger to anyone, these were the trees that the members could see and impacted them directly (branches hanging over cars, brushing up against homes, etc.). You should have heard the compliments. Although these trees could have (and should have, in my opinion) waited another 2 years before being addressed, the members saw some bang for their bucks and were happy.



I think that is true. The homeowners here don't understand the risks a board opens themselves up to for things like improper revitalization or filing fraudulent liens. They have been lucky so far but if they get the wrong homeowner then BAM. They are done.

The last couple boards seem to screw up immensely on the administrative and legal tasks but they have accomplished a lot of tangible acts, like getting new clubhouse furniture, re-roofing and new AC units, new rec-room equipment and material, dog waste stations, toddler play equipment, etc. The problem is that they are spending so much money they aren't looking at the income and have now realized their only hope to maintain is to attempt a revitalization and force mandatory membership on all, meaning mandatory assessments. They lost tens of thousands of dollars when they turned things over to property management and their shenanigans caused the restrictions to lapse. Had they looked at the bigger picture they might not have put themselves in this mess
GwenG
(Florida)

Posts:600


11/22/2015 5:17 AM  
SusanE wrote:

The Board had a meeting on Monday night and discussed my membership in the Association. Since I did not sign the papers their attorney drew up to be readmitted to the Association, their lawyer states we are no longer members and that is that. It came from their attorney with 18 years of experience as an HOA lawyer. They tried very hard for us not to be able to use the streets but their attorney made it clear to them this was illegal. They are now removing us from the cable(we don't care), we can not use the community pool(never did anyway) and we don't get lawn service(we never did get service as our home is xeroscaped). So, what can they do to us?

They have the proposed budget all made up and my neighbor gave us a copy. They forgot to remove us from the equation so they are really minus our assessment.


The attorney should know better; this is HOA101. Nearly all governing documents mandate membership in the corporation by virtue of owning a parcel and, further, require that assessments be levied in pro rata proportion to ownership. If they declare you NOT a member and fail to bill you, then the assessment burden would be increased on the remaining parcels. If that happened, the other parcel owners could sue the HOA for breach of fiduciary.

It appears they are trying to deal with the problem by declaring your partition from the HOA (social punishment "You are banned from the Kingdom!") while at the same time adhering to the requirement to apportion assessments equally among all parcels. Your lawyer will have to get involved in educating the HOA lawyer about the true nature of hoa membership.

You are probably correct; they cannot deny you the services that they are billing you for; the cable vendor will not remove your services without a court order. If they stopped mowing your (xeriscaped) property, the other homeowners would be subjected to an eyesore and possibly sue the HOA. You can use the pool if you want--who would stop you? If summoned, the police would say "This is a civil matter." At least the HOA attorney knew that you could not be denied access over the streets to your property.

Have you thought of writing an open letter to the Board and homeowners asking for formal removal from the Association and assessment roll, pointing out what amount the proposed new assessment should be without your contribution? You could ask them to get the written agreement of all the parcel owners. Point out that they are starting the new budget year in the RED and ask if the additional expense of your active lawsuit is in the budget? People seem to "get" the money angle a lot better than comprehending nuances and new concepts.

Let the fools screw up the Association. They will have to clean up their mess when other homeowners sue or rebel by not paying assessments "for nothing". When it all falls down, a homeowner can apply for receivorship. At least then you will end up with competent management.
SusanE6
(Florida)

Posts:102


11/22/2015 11:24 AM  
You are awesome too, John46 - I see that you just couldn't resist to come on back........
SusanE6
(Florida)

Posts:102


11/23/2015 8:14 AM  
The Board is going to write us a formal letter this week stating we are no longer members of the Association as we did not sign the agreement to reimpose the covenants voluntarily on our property. We are eagerly awaiting this as it will add to the faulty assumption we are no longer members. It was related in a recent Board meeting that this letter was coming our way - the Secretary and Treasurer are the notorious letter writers and usually never pass it to their attorney for approval. I am awaiting this correspondence before I continue to send out information to the other homeowners.

We have written to our attorney - it has been eight weeks since the lawsuit was filed. Updates will come as soon as we hear.
SusanE6
(Florida)

Posts:102


11/23/2015 8:17 AM  
The Board is going to write us a formal letter this week stating we are no longer members of the Association as we did not sign the agreement to reimpose the covenants voluntarily on our property. We are eagerly awaiting this as it will add to the faulty assumption we are no longer members. It was related in a recent Board meeting that this letter was coming our way - the Secretary and Treasurer are the notorious letter writers and usually never pass it to their attorney for approval. I am awaiting this correspondence before I continue to send out information to the other homeowners.

We have written to our attorney - it has been eight weeks since the lawsuit was filed. Updates will come as soon as we hear.
SusanE6
(Florida)

Posts:102


11/23/2015 8:19 AM  
Sorry about the double comment - just came home from work and accidentally pushed the submit twice. I don't know how to remove comments.
SusanE6
(Florida)

Posts:102


12/05/2015 12:23 PM  
Just received a letter from the Association attorney that we are no longer members of the Association. We sent it to our attorney who is angered that they are sending us letters and not going through him. He is actively representing us. They also tell us that we are not able to use common areas, lawn and irrigation services, pool, go to meetings, vote,ask for records,or be connected to the cable and internet. We only pay basic cable to the Association - pay our own internet services. Shut down our internet and there will be problems - our phone is connected to the service also. I don't understand where they got this attorney from as I thought one really couldn't be removed from the corporation. Oh, well - we are all alone now in our neighborhood.
GwenG
(Florida)

Posts:600


12/06/2015 6:12 AM  
The HOA attorney needs to read the Corporate Articles and Bylaws. Typically, parcel ownership imposes membership in the association/corporation and gives the member the right to vote, right to records, right to attend meetings, etc.

There must be specific provisions in the Covenants that give the corporation authority to remove corporate membership and prohibit use of common areas. And, if your Covenants are expired at the time such purported authority is exercised, it would not apply to you anyway.

Additionally or alternately, there must be specific procedures specified in the Articles/Bylaws to unilaterally revoke membership status AKA "The Tribe has Spoken!". The vehicle of implementation and enforcement must be detailed. In my years of experience and reading, I have heard of only one HOA brazen enough to try this; the 2013 case in Seminole County which was eventually WON by the Plaintiff homeowner who went pro se, got a temporary and then a permanent injunction (against denying access to the property). The homeowner was supposedly delinquent in assessments and his HOA attempted to deny his guests/invitees access to his property. Here is a link to the news story:

http://www.prnewswire.com/news-releases/florida-homeowner-scores-permanent-injunction-against-hoa-after-guests-denied-entry-to-his-home-230486841.html

Your HOA and attorney gang appear to be uncommonly incompetent to conduct a business.
JohnC46
(South Carolina)

Posts:8827


12/06/2015 7:30 AM  
Posted By SusanE6 on 12/05/2015 12:23 PM
Just received a letter from the Association attorney that we are no longer members of the Association. We sent it to our attorney who is angered that they are sending us letters and not going through him. He is actively representing us. They also tell us that we are not able to use common areas, lawn and irrigation services, pool, go to meetings, vote,ask for records,or be connected to the cable and internet. We only pay basic cable to the Association - pay our own internet services. Shut down our internet and there will be problems - our phone is connected to the service also. I don't understand where they got this attorney from as I thought one really couldn't be removed from the corporation. Oh, well - we are all alone now in our neighborhood.




Did the letter reference being invited to the Association Christmas Party?
GwenG
(Florida)

Posts:600


12/06/2015 9:53 AM  
JohnC46 posted:

Did the letter reference being invited to the Association Christmas Party?



It seems that JohnC46 has progressed from being disruptive, disrespectful and tedious... to being simply snarky, lacking in empathy and irrelevant. He seems to revel in the loneliness and isolation that SusanE6 is experiencing throughout her difficult journey and relishes every opportunity to rub her face in it. A loathsome characteristic in a human being.

Keep workin' it JohnC46--Slow Learners deserve luv too! Maybe someday you will be able to focus on the thread subject matter which, by the way, you promised not disrupt. It will be helpful to read with an open mind and willingness to absorb unfamiliar content. Maybe someday you will contribute something on-topic and valuable--or at least funny.
PitA


Posts:0


12/06/2015 11:58 AM  
order of documents:

ccrs
articles
bylaws


probably the (over-riding) ccrs dictate membership in hoa by virtue of ownership


no applicable ccrs = no membership


use of private road(s) directly to and from home = easement by virtue of necessity

however

user must contribute prorated cost of use of said property


NOW, the lawyers REALLY get rich
GwenG
(Florida)

Posts:600


12/06/2015 4:10 PM  
PiTA posted:

no applicable ccrs = no membership

Not according to our HOA documents. Membership in the not-for-profit corporation is a product of ownership of a parcel, whether conveyed by "deed, lease, plat, declaration of covenants... Membership does not cease until the title changes hands and the new owner automatically becomes a member.

The corporate documents do not expire with the Covenants; however; much of the underlying authority of the Corporation is awarded by the HOA Covenants so that expiration tends to "gut" the corporate documents.

Our corporation has been pretending to have Covenants since 2002 and only in 2014 did the board acknowledge that the CCR's were expired. However, the members still have membership rights in the operation of the corporation under FS617 and can vote, attend meetings, request records etc. The operation of the common properties continued without the assistance of the Covenants; an illusory contract was in place and members "believed" that the Board had authorities that it did not, in fact, possess.


also posted: user must contribute prorated cost of use of said property

No such thing exists in our corporate documents. And even if such a complicated provision existed, it would expire with the Covenants.

The right of conveyance over commonly-owned roads is conveyed by plat and cannot be taken away by any device of the Corporation or Declaration.

The corporate authority to levy and collect assessments is found in the Covenants/Declaration. No Covenants/Declaration--No Authority to levy and collect. Assessments become "voluntary contributions". Board will have to sue a nonpaying owner and convince a judge that HOA has the authority to assess. Alternately, HOA can sue the owner under the doctrine of "equitable servitude" e.g. it is fair that the owner pay for the amenities they use. The exhorbitant legal cost of getting a Court Order will likely far outweigh anything the HOA collects after the dust settles.

WINNER WINNER CHICKEN DINNER: The Lawyers!
GenoS
(Florida)

Posts:3328


12/06/2015 4:23 PM  
Does the writing on a plat filed with and approved by the county supersede the CCRs? Should "Plat" be included in the definition of "governing documents"?

I ask because my subdivision's plats (original, replat and 2nd replat) contain language regarding certain things that our CCRs don't mention; things like easements and perpetual maintenance obligations for the roads and drainage systems.
GwenG
(Florida)

Posts:600


12/06/2015 5:24 PM  
Geno Posted: Does the writing on a plat filed with and approved by the county supersede the CCRs? Should "Plat" be included in the definition of "governing documents"?

I ask because my subdivision's plats (original, replat and 2nd replat) contain language regarding certain things that our CCRs don't mention; things like easements and perpetual maintenance obligations for the roads and drainage systems.

In certain aspects, the Plat supercedes the CCR's. For instance, if CCR's attempt to assert claim to infrastructure dedicated to public use by Plat(such as roads), the HOA cannot revoke that. Many owner "rights" are conveyed on the Plat that is superior to the CCR's.

The Plat is not a governing document; it is a comprehensive development roadmap and is accepted or rejected by the county in which the parcel is located. The county's initial approval of the Developer plan of development, when accepted, becomes a Planned Unit Development (PUD)--an overlay of the county master plan. The development plan must identify who operates and maintains roads and water/sewer. Easements are generally for utilities and drainage and cannot be impeded by owners or usurped by HOA.

The CCR's do not trump the county master plan of development, codes or ordinances. HOA can make some architectural restrictions (if authorized by the Covenants) that are MORE restrictive than the county, but not LESS. The county approves or denies any modifications to the PUD that the HOA applies for. Owners do not have to be formally notified of a PUD change. These changes "run with the land". That is not the case with changes (amendments) to CCR's which require notification to owners (only) and do NOT "run with the land".

JohnC46
(South Carolina)

Posts:8827


12/06/2015 7:07 PM  
Posted By GwenG on 12/06/2015 9:53 AM
JohnC46 posted:

Did the letter reference being invited to the Association Christmas Party?



It seems that JohnC46 has progressed from being disruptive, disrespectful and tedious... to being simply snarky, lacking in empathy and irrelevant. He seems to revel in the loneliness and isolation that SusanE6 is experiencing throughout her difficult journey and relishes every opportunity to rub her face in it. A loathsome characteristic in a human being.

Keep workin' it JohnC46--Slow Learners deserve luv too! Maybe someday you will be able to focus on the thread subject matter which, by the way, you promised not disrupt. It will be helpful to read with an open mind and willingness to absorb unfamiliar content. Maybe someday you will contribute something on-topic and valuable--or at least funny.




Are you saying she will not be bringing th Egg Nog?
GenoS
(Florida)

Posts:3328


12/06/2015 10:43 PM  
Thanks, Gwen, that's about what I thought. A new PUD today is encouraged to include suggested covenants with their newly minted HOA CCRs. Suggested, but not mandated, as in these from the St. Johns River Water Management District. Our governing documents contain the word "drainage" only once in the Articles of Incorporation, but I assume the wording on the Plats in conjunction with the applicable enforcement provisions of the district would supersede the lack of actual written covenants in our 1988 docs.

We have a brewing issue with some drainage problems on the common property and more than a few of the owners, including everyone on the board (except me), is claiming the Association has no responsibility to do anything about it since it's not mentioned anywhere in our covenants.

I should probably start a new topic about this since it doesn't really pertain to MRTA issues.
KevinK7
(Florida)

Posts:1343


12/07/2015 1:56 AM  
That is an interesting point. Our plats specify drainage and utility easements. The restrictions make little mention of either, and I think instead of getting an easement for their sprinkler system they just wrote a covenant stating that the community may one day install sprinklers (the first and second set of covenants never mentioned the corporation).

Only recently the HOA claimed they were taking care of the easements and right-of-ways until I pointed out to homeowners that they had done neither and that county Roads and Drainage department has been. This has yet to become an issue but I am sure it could be if they fail at revitalization or any subsequent challenges, but I doubt they are smart enough to consider suing to enforce a plat.
GenoS
(Florida)

Posts:3328


12/07/2015 2:45 AM  
Kevin, if you visit the website of whichever Water Management District you're in you can search for permit information. I found a boatload of information and archived correspondence on the SJRWMD website about my HOA. Who initially applied for the permits, the original and amended governing documents of the HOA where responsibility was established for the Operating Permit (aka MSSW permit), correspondence between the original developers regarding the original design needed for the construction permit, transfer of ownership records, complaints filed by homeowners since Day 1 and voluminous correspondence regarding compliance with the permits.

If the responsibility for your HOA's permits was ever transferred from one entity to another you should be able to find plenty of information about those transfers on the district's website.
MichaelT17
(Florida)

Posts:8


01/27/2016 6:02 PM  
Many homeowners in Fla have come to realize that the State of Florida refuses to enforce the State Statutes governing HOA's. Without regulation, HOA's have been able to operate under their own terms for quite some time, because most HOA's know that the homeowner cannot afford legal representation, and it is up to the homeowner to deal with the "civil matters" that the state refuses to address.

I am aware of an HOA that exists in our area, which fell under 19 tracts of land, and of that 7 tracts were revitalized this past year. Im sure most of the readers can tell I fought hard against the revitalization. There was alot of wrong doing in the petitioning and passing of the revitalization.

The State of Florida will give homeowners 3 options. Hire an attorney, sell your home,or to join the association. I tried to make amends with the people at our HOA, and it worked until they knew I was no longer a threat to their regime... They made it apparent I am not welcome in their hall (and considering our family is of the younger in the community I dont mind not going to meetings and volunteering to help in the kitchen!)

Our President is a CPA, handles all the financials. She is also the Treasurer for the billing company, and the Treasurer for crime watch (If it involves money...she has her hands in it!)

I found it was easier to just keep paying the hostage fee(s) than to try and seek an attorney to correct the issues.

Currently we live in a home with expired restrictions, and this week on FOX there was a homeowner who had his home taken for a mere $75.00 assessment. Im not going to fall victim to the association, so I continue to pay.

There are some bills for consideration in 2016 that I hope will pass and give homeowners relief and HOA's more accountability.
AllisonB
(Alabama)

Posts:21


01/27/2016 8:19 PM  
Hi Chris,

I am wondering if you can help me. I have a rather strange situation. I have a plat note referenced by page in my deed, but no name of the hoa. Is that enforcable? The hoa is expired as well.

Also:

The original plat was created first
Two months later the restrictions were added
Three months after that the restrictions were amended that indentured my land

Thanks
GenoS
(Florida)

Posts:3328


01/27/2016 11:23 PM  
Posted By MichaelT17 on 01/27/2016 6:02 PM
There are some bills for consideration in 2016 that I hope will pass and give homeowners relief and HOA's more accountability.

Amen to that. Make sure you call your state representatives and state senators to voice your support for those bills. I've been calling once a week since the beginning of December.

Florida's a strange place. It's pretty well known that lawmakers in Tallahassee respond quite favorably to bribery.... er, I mean lobbying. There are even companies who, for a price, will teach you how to lobby effectively in Florida. They come right out in their advertisements and say, "Learn how to get the most bang for your buck."

The thing I fear most this year is the large number of competing HOA reform bills under consideration. Too many competing bills may result in none of them passing. Which would be a shame.

Keep calling.
KevinK7
(Florida)

Posts:1343


01/28/2016 6:00 AM  
Posted By AllisonB on 01/27/2016 8:19 PM
Hi Chris,

I am wondering if you can help me. I have a rather strange situation. I have a plat note referenced by page in my deed, but no name of the hoa. Is that enforcable? The hoa is expired as well.

Also:

The original plat was created first
Two months later the restrictions were added
Three months after that the restrictions were amended that indentured my land

Thanks



That is similar to mine. Plat made. They reference 1979 restrictions. No mention of association, assessments, liens, etc. Then in 1980s somehomeowners filed new restrictions and made a HOA. It went from there to amending further to say they were mandatory. Then the restrictions expired. MRTA is clear. My deed only references the 1979 set so when that expired that was it. The only thing that can be renewed is the 1979 restrictions but since the law is pretty clear, it would require my approval since the house would not fall under the guidelines of s. 720. Anything to bring my property under control of the HOA or impose more restrictive covenants (like say creating a HOA) would require my approval.

Now that doesn't stop my neighbors from screwing with public records and making false claims or attempting legal action against me. They can sue and force me to pay to defend my land and if I don't know my rights or have poor representation I will lose. That happened to my neighbor who lost their home despite the "HOA" not possessing lien rights or really any legal authority.
GwenG
(Florida)

Posts:600


01/28/2016 7:04 AM  
AllisonB wrote:

The original plat was created first
Two months later the restrictions were added
Three months after that the restrictions were amended that indentured my land


What Kevin said appears to be similar to your situation except Kevin's experience is
"on steroids"!

What you must accurately identify, if you are doing a MRTA-qualified title search is your "root of title"/ This is the birthday of your property's "being" and describes everything affecting your property rights. I noted you are in Alabama and my comments may or may not apply to Alabama's MRTA law.

Most deeds, in my experience, do not reference plats that also contain the specific location of HOA restrictions. If they did, Covenants would never expire per MRTA because the ground plat cites the specific restrictions and that is everybody's "root of title". The ground plat never changes, therefore the accompanying restrictions never expire. Plat citing fulfills a required condition of the MRTA law, i.e. specific location if the official record of the restrictions. Very easy for Developer's to do, but Florida's MRTA law was not enacted until 1963 and the Developer's of the 70's (or their attorneys) might not have been aware of it.

Your property cannot be captured/indentured by subsequent amendments unless you specifically agreed in the "root of title". Property rights can only be added or subtracted through a "muniment"--a document that actually conveys title to a parcel. Muniment conveyances create, over time, a chain of title. Amendments are part of a chain of title, but they are not muniments and therefore, cannot re-encumber/capture/indenture your property.

Without knowing exactly what was recorded at the moment you accepted your Deed, it is impossible to know if your parcel is subject to restrictions and indeed, indentured.



@KevinK7: Can you share the outcome of your revitalization vote?
KevinK7
(Florida)

Posts:1343


01/28/2016 1:03 PM  
There was never a vote. They wanted to avoid a meeting by collecting signatures on joinder and consent forms that basically state the property will be re-encumbered. They statted collecting a couple months ago and in the beginning of January they sent out a vague thank you to those homeowners who returned forms to help maintain property values and keep the HOA in existence. To me it sounded as if they did not get enough signatures.

They believed they needed 50%+1 of the neighborhood. I argued they could not and would require 100%, or only those who returned would have encumbrances.
GenoS
(Florida)

Posts:3328


01/28/2016 2:13 PM  
Posted By GwenG on 01/28/2016 7:04 AM
I noted you are in Alabama and my comments may or may not apply to Alabama's MRTA law.

I seem to remember either upthread or in another thread AllisonB said she owns property in Florida and that is the subject of her MRTA inquiries.
JohnC46
(South Carolina)

Posts:8827


01/28/2016 2:51 PM  
Posted By GenoS on 01/28/2016 2:13 PM
Posted By GwenG on 01/28/2016 7:04 AM
I noted you are in Alabama and my comments may or may not apply to Alabama's MRTA law.

I seem to remember either upthread or in another thread AllisonB said she owns property in Florida and that is the subject of her MRTA inquiries.




Same as I read it.
ChrisP12
(Florida)

Posts:15


01/30/2016 7:03 AM  
Hey GwenG you are a rock star on this MRTA stuff.

It has been awhile since I last posted here but thought I'd add my nickles worth of knowledge on the subject. None of this is directed to you as your understanding of the issues with MRTA and HOAs is impressive. This is for newbies who may not have experience with it.

One of the things that can lead to difficulty in providing help to people having issues with an Association or MRTA is that the proper or accurate words are not used. It appears that many people use the word "restriction/s" and "Declaration" as if they are the same thing. They may or may not be. Since we are dealing with legal issues using the correct word is paramount. Legal decisions can turn on the word being used such as "and" or "or".

Here goes with my input.

When a developer decides to create a residential community the first thing he does is acquire title to a tract of land. The tract of land is then "platted". The "plat" is a essentially just a survey drawing and it identifies the name of the plat which is normally the name of the residential community, i.e. Running River Estates. The plat accurately identifies the location of the tract of land and it also shows the location of each individual parcel of land within the original tract. Each parcel will have a "Lot Number" as a specific identifier for that particular parcel.

The plat may or may not contain "restrictions" on the individual parcels (each parcel being a building lot/future home site). One restriction may be a minimum setback requirement (see Sunshine Vistas). ANY RESTRICTION THAT APPEARS ON THE PLAT WILL NEVBER BE EXTINGUISHED BY MRTA - IT IS AN EXCEPTION TO MRTA.

The developer may or may not create AND record a "Declaration of Covenants" (Deed Restrictions) that governs each of the individual parcels. Remember that THE PLAT MAY CONTAIN RESTRICTIONS EVEN IF NO DECLARATION IS RECORDED. The Declaration is a separate legal document, actually a legal contract between the developer and any owner of a parcel/building lot. Once the Declaration is recorded in the Official Record it will have a Book and Page number. The reason the plat usually does not mention the Declaration is that the Declaration usually comes AFTER the original large tract of land is platted. I think this is because the Declaration must identify the name of the residential community (Running River Estates) and the name is not of any legal significance until the original plat is recorded in the Official Record and a Book and Page number for the plat is assigned to it. Additionally, the Declaration is many pages long and it really doesn't belong in a plat. The developer may amend the plat to make reference to the Book and Page where the Declaration is recorded. If the developer does this the Declaration becomes part of the original plat by "reference". In this case THE DECLARATION WILL NEVER BE EXTINGUISHED BY MRTA because every title/deed to each parcel/building lot will make reference to the original plat which makes reference to the Declaration. It becomes an "exception" to MRTA. Consider the situation where the developer has already sold one or more building lot before he amends the plat to make reference to the recorded Declaration. I am not a lawyer but in my opinion any lots sold before the plat was amended to make reference to the Declaration may have the Declaration extinguished by MRTA. It would depend on whether the amended plat is retroactive. Something to ponder.

The "Root of Title" that MRTA relies upon for the Declaration is, I believe, the date that the first and only title transferring or "conveying" the individual parcel from the DEVELOPER to any other person or legal entity (a builder may buy the lot) was RECORDED in the Official Record. Before that date no title existed for the individual parcel, it was just shown as a location on the original plat. Consider the situation where the paperwork for the purchase of the individual parcel was not recorded in the Official Record for six months after it was signed. The "Root of Title" would not be the date the documents were signed but when it was RECORDED. If there are 10 parcels and their sales were RECORDED on different dates there will be 10 "Root of Title" dates, one for each parcel. The "Root of Title" date has nothing to do with the date the Declaration was recorded in the Official Record. (Many lawyers think that the date the Declaration was recorded is the date of extinguishment by MRTA, it is not.) Consider the situation where the Declaration IS NOT referenced in the plat and was recorded in the Official Record AFTER the developer had sold one or more parcels/building lots. The Declaration can not govern any of those already sold lots since it was recorded AFTER the lots were sold.

The title/deed to a parcel may or may not make reference to the Book and Page where the Declaration is recorded in the Official Record. If the title/deed makes reference to the specific Book and Page where the Declaration is recorded IT WILL NOT BE EXTINGUISHED BY MRTA. Most titles/deeds DO NOT make reference to the Book and Page of a recorded Declaration. Additionally, if the title/deed states the name of the residential community (Running River Estates) as shown on the original plat AND the plat contains restrictions, I believe that those restrictions WILL NOT be extinguished by MRTA.

The Marketable Record Title Act (MRTA) extinguishes a Declaration after 30 years. The Declaration may be extended and protected from being extinguished by MRTA by an "Association of parcel owners" according to the specific statutory rules. The privilege to extend the Declaration is restricted to Associations meeting the Statutory Definition of an HOA as contained Florida Statutes Chapter 720 OR any Association of parcel owners that has Declaration enforcement power. Note that the F.S. Ch. 720 HOA Statutory Definition curiously makes no mention of ENFORCEMENT. If a Declaration has already been extinguished by MRTA for a parcel and the Association amends the Declaration, the amended Declaration has no legal significance, a nullity. The original Declaration, having been extinguished by MRTA cannot be brought back to life by simply amending it. An extinguished Declaration may be "revived" by an Association after it has been extinguished by MRTA. There is a Statutory procedure to follow. However, the "revived" Declaration CANNOT be more restrictive than the original Declaration. Many "non-mandatory" Associations try to become "Mandatory" during the revival process. This is not allowed. A Declaration that requires MANDATORY membership is by definition more restrictive than a Declaration without any parcel owner membership requirements.

The situation becomes very convoluted when there is a "non-mandatory" (voluntary) Association. A non-mandatory/Voluntary Association can prevent a Declaration from being extinguished by MRTA only if it has Declaration ENFORCEMENT power. I am assuming that nearly all Voluntary Associations claim to have Declaration ENFORCEMENT power in their Articles of Incorporation.

A Voluntary Association (VA)cannot have Declaration ENFORCEMENT power just because they say they do in their Articles of Incorporation. A VA can have ENFORCEMENT power only in a limited number of ways:
1. If the VA owns property in the development and the Declaration gives ENFORCEMENT power to anyone owning property: THEY DO
2. If the formation of the VA is provided for in the Declaration and it specifically gives them ENFORCEMENT power: THEY DO
3. If the original Developer retained ENFORCEMENT power after it sold the last parcel and the Developer lawfully assigned that power to a VA:THEY DO -- When the Developer owns property in the development he has an "interest" in the development and by virtue of owning property he has ENFORCEMENT power that can be assigned to a VA. However, once the last parcel is sold and if there is no common property owned by the Developer, the Developer ceases to have an interest in the Development (see Busch v. Sand Lake Hills). The Developer's ENFORCEMENT power ends when the last parcel is sold UNLESS the Declaration provides for continued ENFORCEMENT power by the Developer even if he owns no property (see Trout Creek Development). The Developer does not retain ENFORCEMENT power forever just because they were the Developer unless the Declaration, a binding contract between the Developer and parcel owners, provides for it. In Trout Creek, the Developer retained ENFORCEMENT power for 10 years even if it owned no property and it assigned that power to a VA that it created. In general, no Developer wants to retain enforcement power when they cease to own property, whether a building lot or common property, because they risk being sued by a property owner for Breach of Contract for failing to enforce the Declaration. Note that neither F.S. Ch. 720 or F.S. Ch. 712 gives any privilege to a developer, only Associations.

Well, that's all for now. I hope it benefits someone.
KevinK7
(Florida)

Posts:1343


01/30/2016 7:20 AM  
I may have to double check (after years of fighting sometimes my details get mixed up) but if I recall the original restrictions made no mention of an association. Then some homeowners decided to file new restrictions. That one made no mention of the association. It may have made vague mention of an HOA if homeowners so choose to form one. It wasn't until 22 years after the original restrictions that they granted themselves enforcement authority with a majority amendment.
GwenG
(Florida)

Posts:600


01/30/2016 8:06 AM  
Chris that was one fine piece of writing and an accurate summation of MRTA's effect on Declarations. You are on point with the necessity of speaking in correct terminology. This is a legal discussion and legal words are MOL universally understood by the parties and eliminate ambiguity. One cannot logically discuss MRTA unless the basic concepts are described in specific words! These words happen to be specialty, legal words and do not lend themselves to imprecise jargon. Many people are "scared" of legal words and translate into more common word usage and that is fine up to a certain point and then meaning and understanding get lost in the morass of imprecise language.

Your discussion about the "exception" of a Plat Declaration to MRTA is especially good; the best I have ever read--anywhere and I am keeping it in my special stash of MRTA articles.

You say: "I am not a lawyer but in my opinion any lots sold before the plat was amended to make reference to the Declaration may have the Declaration extinguished by MRTA. It would depend on whether the amended plat is retroactive. Something to ponder"

I agree. A replat, as amended by the Developer, in my opinion cannot retroactively impose DEVELOPER restrictions on those lots already conveyed unless the owner has previously agreed to that in the original Declaration. Of course, MRTA already excepts municipal, county & state restrictions from expiration. Often, plats are unreadable in their online versions and overlooked in the MRTA discussion--but, it should be the FIRST thing scrutinized!

You also brought out an interesting fact about the continuation of Developer's rights. The developer has, until turnover, the right to change just about anything they want in the contract for deed or deed itself. The Developer also gives all it's rights to Successor Developers or, in the absence of a Developer, to a committee of owners. MY HOA wanted to argue that IT was a Successor to the Developer for all time and therefore, had the right to change anything it wanted at any time. This was never judicially declared as it was a "side issue" of the arguments being presented at the time. I think it is a ludicrous idea but there are many legal decisions that make one scratch one's head...
GenoS
(Florida)

Posts:3328


01/30/2016 1:05 PM  
Posted By ChrisP12 on 01/30/2016 7:03 AM
If the developer does this the Declaration becomes part of the original plat by "reference". In this case THE DECLARATION WILL NEVER BE EXTINGUISHED BY MRTA because every title/deed to each parcel/building lot will make reference to the original plat which makes reference to the Declaration. It becomes an "exception" to MRTA.

Good information, ChrisP12. As for the portion I quoted, that's how my HOA has it. The HOA was incorporated in January of 1989, the declaration of covenants was filed in March of that same year followed by the plat a month after that. The plat names the Florida corporation not-for-profit, i.e. the Homeowners Association, and mentions additional covenants and restrictions and the book and page of the county's official records where they may be found, i.e. the declaration.

The only specifics on the plat itself (and the 2 subsequent replats) are language regarding the streets, county and utility company easements, and drainage easements.

I'm no lawyer either, but my understanding is that all of that would preclude MRTA from extinguishing the covenants here since, as drawn up and filed, everything falls under the MRTA exception you have outlined. That did not stop our wonderful attorneys from charging us $5,000 in 2011 for their "help" in preserving our HOA covenants; covenants that did not need preserving in my opinion.
SusanE6
(Florida)

Posts:102


01/31/2016 1:59 PM  
Thank you, Chris. That description was excellent and I wish I could send it to each one of my Board members as I feel they had no idea what MRTA meant. They hired an attorney that related to them MRTA was an "easy peasy" situation. He preserved the titles the Board researched and missed many extinguished titles. Now we are involved in a lawsuit that is unbelievable - the Association attorney made a complete mess of the MRTA topic - it seems to me that Florida lawyers need to read your description so they understand what it is all about. A huge waste of homeowner money and a lawsuit - all unnecessary if they only knew what MRTA was really about.
KevinK7
(Florida)

Posts:1343


01/31/2016 2:38 PM  
I don't know. Even with such a great explanation some people just won't get it. My 1st neighborhood lost a ruling but in a meeting they still argued simple facts like insisting county right-of-ways were common property or that they could demand payment from non-members and not be governed by 720 because they claimed homeowners could voluntarily join (exempting them from 720) and that they could amend documents wit a simple majority at will. MRTA, no matter how simple it may be, is still too complex for some.
GenoS
(Florida)

Posts:3328


01/31/2016 5:15 PM  
Kevin, what's needed, in my opinion, is new legislation that requires an HOA to publicly acknowledge, by the filing of a statement on the county's official records, that its covenants and deed restrictions have been extinguished by MRTA. The sworn statement should include the Offical Records Book and Page numbers of all the former governing documents and their amendments.

I'd also look into a new criminal offense: asserting that an obligation to pay assessments exists when, in fact, it does not. The penalties for violating this statute: 2 years for an HOA director, 5 years for an officer, 10 year license suspension for a CAM and a disbarment for any attorney who knowingly misrepresents the false existence of an obligation to pay mandatory assessments to anyone.

Harsh? Maybe. The abuses would stop pretty darn fast though after a few sentences get upheld on appeal.
KevinK7
(Florida)

Posts:1343


02/01/2016 6:59 AM  
Posted By GenoS on 01/31/2016 5:15 PM
Kevin, what's needed, in my opinion, is new legislation that requires an HOA to publicly acknowledge, by the filing of a statement on the county's official records, that its covenants and deed restrictions have been extinguished by MRTA. The sworn statement should include the Offical Records Book and Page numbers of all the former governing documents and their amendments.

I'd also look into a new criminal offense: asserting that an obligation to pay assessments exists when, in fact, it does not. The penalties for violating this statute: 2 years for an HOA director, 5 years for an officer, 10 year license suspension for a CAM and a disbarment for any attorney who knowingly misrepresents the false existence of an obligation to pay mandatory assessments to anyone.

Harsh? Maybe. The abuses would stop pretty darn fast though after a few sentences get upheld on appeal.



You would also have directors turn on each other so fast. I mean look at our situations. My last neighborhood saw an attorney claim they could collect mandatory assessments from non members (by citing an unrelated generic county collections case) and then threatening legal action and my current neighborhood where they even for closed on a homeowner when they had no legal authority to do so.

I am sure that in those situations if they had official charges filed they would start to sing and all the dirty laundry will start to air. Instead they screw it up and nothing. They just keep trying again. It reminds me of when my last neighborhood wanted to build a million dollar wall.

They canvases the neighborhood, pushed their plan, and failed to get a majority (I think they got closer to 35%). So did they quit? Nope. They went to the county representing themselves as the HOA for their neighborhood and the 10 surrounding subdivisions and got the county to survey for a MSBU, which had a far less threshold of approval. In the end they got their wall with roughly 19% of the neighborhoods approval causing nearly $1000 extra in taxes, and since they went that route there was no chance for a homeowner to be protected by insurance coverage for a special assessment. A lot of homeowners got screwed and faced tax bills double and triple of what they paid for. The HOA got away free. Same when they lied to the county for a grant for beautification projects. Instead they bough electric and water meters and just deposited the grant money because why not. They acted fraudulently.
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Forums > Homeowner Association > HOA Discussions > FL Covenant Expiration MRTA



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