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Subject: expired covenants
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JoyP1
(Florida)

Posts:17


03/30/2012 8:16 PM  
Our CC&R expired in 2001 under MRTA. The HOA (Florida) has formed a committee to start the process of revitalization. They continue to enforce covenants, impose fines, collect dues and file liens. Unless and until revitalization is complete,they have no authority to do any of that. The attorney avoided answering questions about the effects of MRTA at the annual meeting. The bod insist that it is "business as usual." What can a homeowner do, short or spending big bucks to take the HOA to court? It seems that the state of Florida has given the HOA a "license to steal."
MelissaP1
(Alabama)

Posts:9314


03/31/2012 5:20 AM  
You ARE the HOA and so are your neighbors. A HOA is NOT a "they or them" entity. It is a club of homeowners working together to provide themselves rules and regulations they would like to enforce. Suing your HOA is suing yourself and your neighbors. Which is something I can't say enough of.

I see nothing wrong with continued enforcement of non-payment of dues as I believe everyone should pay their fair share. Why should I have to pay more for my dues to cover for those who don't? Do you think taking a break from this as you all update your rules is going to be helpful in any way? No. The reality is it just gives more time for those to NOT get punished for NOT paying their dues. Which makes everything more of a mess in the long run. People will come up with the excuse of not paying during this time period that could mean less enforcement when trying to catch up on non-payers.

You have to realize what a HOA is and what it does. Stop thinking it's something it's not. Once you discover that your NOT an outsider looking in but an insider who's looking out too much, then you may realize the HOA is doing what it is supposed to do to keep it running.

Former HOA President
JohnC46
(South Carolina)

Posts:9471


03/31/2012 6:44 AM  
Joy

What would be the alternative if they do not keep doing business as usual?
TimB4
(Virginia)

Posts:16778


03/31/2012 6:53 AM  
Joy,

I don't know enough about this relatively new law. Hopefully others who do will comment.
I can provide the following links on the issue that I found:

FL 712 - MARKETABLE RECORD TITLES TO REAL PROPERTY.

Article titled MRTA Can Eliminate Subdivision Restrictions written by Zana Holley Dupee who is a Florida Bar Board Certified Real Estate Attorney.

I understand the Association attorney not wanting to reply to questions on the topic. They work for the corporation known as your Association and are accountable to the board not the individual members of the corporation.

I will offer the following opinion: Just as dissolving the Association (Corporation) doesn't abolish the CC&Rs, I would expect that abolishing the CC&Rs doesn't dissolve the Corporation. After all the corporation exists because of the Articles of Incorporation and is ran by the Bylaws.

Even if the CC&Rs are eliminated, there are common grounds to be maintained that the land owners must pay for. I would suspect that the Articles of Incorporation specifies that the Association is to maintain these common areas. Therefore, this may be the authority to levy assessments.

You will need to read the Articles, the Bylaws and all resolutions to determine exactly what was nullified if the CC&Rs were abolished and what was not. It could very well be that the only thing abolished was the need to seek approval to paint your house a different color - UNLESS that requirement is contained in your Bylaws.

You will most likely need to consult your own attorney for those answers as they will be able to review all your documents. Perhaps you can get a group of neighbors together to share the cost in getting that legal opinion.

Hope this helps,

Tim
JoyP1
(Florida)

Posts:17


03/31/2012 6:55 AM  
So you think it's perfectly okay for an HOA to operate illegally for 10 years and lie to the homeowners about it? This is a mandatory association....at least it was. MRTA has made it a voluntary association and I'd like to keep it that way.
Too many of my neighbors have been unjustly accused of covenant violations by the bod because one director doesn't like his neighbors. No matter what they do, he will find something to complain about.

We have city streets and utilities and local code enforcement. The HOA is just a social club. We are a 55+ community and many older folks can't even leave their homes without assistance. They never use the pool or clubhouse. Why should they pay for those who do?
MelissaP1
(Alabama)

Posts:9314


03/31/2012 7:00 AM  
They pay for those who do use those items because it's part of what your HOA covers. You being a member of the HOA means you pay for whatever the HOA is responsible for. I still don't think your getting what a HOA is. It is NOT again I repeat NOT an entity onto itself. It is YOU and YOUR NEIGHBORS!!! A HOA is run by it's members FOR it's members. YOU are such a member.

Read a few more posts on here and get a better understanding of what a HOA is. That way you may be able to address your issues in a different way. Right now, your not seeing the forrest for the trees...

Former HOA President
JoyP1
(Florida)

Posts:17


03/31/2012 7:32 AM  
Melissa. The only time members get a say is at the annual meeting...to vote on amendments or elect board members. In a voluntary association, I would not be forced to be a member. The folks who use the facilities on a regular basis would still use them because they would join the association and willingly pay their dues. No longer would the association impose fines or file liens. Our mobile home community is built out and local code enforcement would keep it from becoming a shanty town. The problem I have with this being a mandatory association is the board being able to do whatever it pleases, legal or not. When they take my money, without any authority to do so, they are stealing....plain and simple.
That, my friend, is how we lose our rights....one little piece at a time.
JohnC46
(South Carolina)

Posts:9471


03/31/2012 7:35 AM  
Posted By MelissaP1 on 03/31/2012 7:00 AM
They pay for those who do use those items because it's part of what your HOA covers. You being a member of the HOA means you pay for whatever the HOA is responsible for. I still don't think your getting what a HOA is. It is NOT again I repeat NOT an entity onto itself. It is YOU and YOUR NEIGHBORS!!! A HOA is run by it's members FOR it's members. YOU are such a member.

Read a few more posts on here and get a better understanding of what a HOA is. That way you may be able to address your issues in a different way. Right now, your not seeing the forrest for the trees...





I agree.
TimB4
(Virginia)

Posts:16778


03/31/2012 7:38 AM  
Posted By JoyP1 on 03/31/2012 6:55 AM
So you think it's perfectly okay for an HOA to operate illegally for 10 years and lie to the homeowners about it?




I don't know if they are operating illegally or not.
I haven't read your governing documents or the law to offer an opinion if your Association is performing duties legally.

I'm offering the opinion as an outside observer that it's possible that the Association still legally exists as a corporation and is required to perform certain duties as outlined in it's Articles of Incorporation and/or Bylaws. I also provided my reasoning behind this opinion.

Just as you are free to use some, all or none of the advice from an Attorney or Doctor, you are free to do the same with the advice offered on this forum. The decision is yours. The more opinions you receive, the more information you will have and you will be able to make an informed decision.

All decisions have intended and unintended consequences. Good decisions tend to have good consequences and bad decisions bad consequences. An informed decision isn't definitively good or bad. It's just an informed choice so the individual can determine the consequences and decide what they can live with.

If my opinion tuns out to be right (and I could be wrong - as I am not an attorney and I do not work within the legal profession) you can at least say you were informed that this could be the case and made an informed decision of what consequences you could afford to live with.



Posted By JoyP1 on 03/31/2012 6:55 AM

This is a mandatory association....at least it was. MRTA has made it a voluntary association and I'd like to keep it that way.




Boy, I'd like mine to be voluntary also.
Can you cite some documentation that informed you your Association is now voluntary?

Was this published by the Board or Articles of Incorporation amended?
If you were just told this info great. However, I like to trust but verify what someone tells me as I would be the one having to live with the consequences and not them. Therefore, I like to believe my friend but want to verify the documentation that led to their opinion and see if I have the same opinion after reading the documentation.


Posted By JoyP1 on 03/31/2012 6:55 AM

Too many of my neighbors have been unjustly accused of covenant violations by the bod because one director doesn't like his neighbors. No matter what they do, he will find something to complain about.




Yep. Unfortunately that does happen.
The best remedy for this that I have found is to become involved and perhaps be elected to the Board so I can be part of making these decisions and, by being part of the decision process, may encourage others who are part of the process to listen to reason and comply with the governing documents.


Posted By JoyP1 on 03/31/2012 6:55 AM

We have city streets and utilities and local code enforcement. They never use the pool or clubhouse. Why should they pay for those who do?




Well, that's a legal question.

It may be your legal responsibility based on your partial ownership of the pool and clubhouse. You will need to check your Deed and other documents to see if you are legally responsible for these things. The question will be did MRTA abolish all legal responsibilities to the common area or leave those intact and only remove part of the contract known as the CC&Rs.

Again, a legal question and since I haven't read the law or have access to your governing documents, I can't even offer a laypersons opinion on that issue.


Posted By JoyP1 on 03/31/2012 6:55 AM

The HOA is just a social club.




Is it?

I would expect that legally it's a corporation that was formed with specific responsibilities and obligations it must meet (like maintaining the common area and common elements).



My opinion is based on the information contained within your post, personal experiences, what research I have done and, hopefully, some common sense. Opinions differ and opinions change based on the amount of information provided.

I hope that you will take the time to trust but verify the opinions you agree with but also to research those opinions you disagree with. as your opinion may change based on that research. Even if it doesn't you would have gathered more information that will allow you to make an informed decision on the issue.

I hope this helps,

Tim



JoyP1
(Florida)

Posts:17


03/31/2012 7:49 AM  
I have had email chats with a residential real estate attorney. She told me that MRTA extinguished all the covenants. The corporation still exists, but the contract has been broken. Unless and until revitalization is complete (and approved by the state of FL), the association is strictly voluntary and has no authority to enforce covenants or collect assessments. They continue to act as if nothing has changed. There is no regulatory agency to rein them in.
JoyP1
(Florida)

Posts:17


03/31/2012 7:51 AM  
By the way, I have read (and studied) the bylaws and the restrictive covenants.
JohnC46
(South Carolina)

Posts:9471


03/31/2012 7:58 AM  
Joy

Do you intend to stop paying your dues/assesments?

JoyP1
(Florida)

Posts:17


03/31/2012 8:16 AM  
I paid for the entire year.....before I found out that MRTA had extinguished our documents. I have sent letters, stating my case and requesting a refund. So far, I have been ignored. I attend the monthly board meetings and have tried to tell them what I've learned about MRTA. They've made it obvious that they don't know what I'm talking about. I asked if they had ever filed a notice of preservation. They had never heard that term. Several other residents and I have requested an informational meeting, with attorney present, so that residents could ask questions about MRTA and revitalization in order to make an informed vote on the issue when that time comes. That, too, has been ignored.
JoyP1
(Florida)

Posts:17


03/31/2012 8:18 AM  
In my letters, I have stated that I will pay the proper amount due when, and if, revitalization is successfully completed.
TimB4
(Virginia)

Posts:16778


03/31/2012 8:32 AM  
Joy,

Perhaps you should meet with the Board, who cares if the attorney shows up (as that can be extremely expensive), and explain the impacts of MRTA as you understand them. Provide copies of the laws and mention that your concerned that the Association may be opening themselves up for litigation if they don't get some legal opinion on the issue. I would mention that you would also be concerned that the D&O insurance wouldn't cover any of those litigation costs because the Board is now aware of this Statute.

It will depend on the presentation as to how the information is received.

Tim
TimB4
(Virginia)

Posts:16778


03/31/2012 8:42 AM  
Posted By JoyP1 on 03/31/2012 7:49 AM
I have had email chats with a residential real estate attorney. She told me that MRTA extinguished all the covenants. The corporation still exists, but the contract has been broken. Unless and until revitalization is complete (and approved by the state of FL), the association is strictly voluntary and has no authority to enforce covenants or collect assessments. They continue to act as if nothing has changed. There is no regulatory agency to rein them in.




Joy,

I took a look at the statute. Per 712.02 and 712.03, and I believe that it could be argued that the clubhouse and pool could be exceptions to marketability, it's possible that you would be required to pay to maintain them. Did the attorney look at your specific covenants to see if this would be a valid argument?

I'm not saying that the argument would win but if the statutes would allow for that argument to be made, it will most likely require a court opinion to resolve any challenge that this argument is not valid.

Granted under 712.05, it's possible that their may be a statute of limitations for the Association to make this argument. I didn't read the whole law so I can't really be sure.

Perhaps you could cite the basis of what you were told by the attorney so others here can be better informed.

JoyP1
(Florida)

Posts:17


03/31/2012 8:45 AM  
Tim. I have written a personal letter to the HOA president outlining my concerns. I have given her copies of articles explaining the MRTA law and its ramifications and asking her to please consult the attorney about such. No response.
EllieD
(Vermont)

Posts:445


03/31/2012 9:04 AM  
JoyP1,

I am not in Florida, but was interested to find out what MRTA (Marketable Record Title Act) was all about.

As a point of interest, if you choose to post, how large is your Association?

Doing a quick Google Search, I found an interesting article titled

“The Reinstatement of Covenants, Conditions, and Restrictions Extinguished by the Marketable Record Title Act” by Gary A. Poliakoff and Donna D. Berger.

https://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/e4af811e3d563fa885256adb00471d5b/a8a8da7514a6718885256ff10060df88!OpenDocument

Based on that article it seems your Association is doing the correct thing by forming a committee as the first step to start the process of revitalization to revive your extinguished covenants.
TimB4
(Virginia)

Posts:16778


03/31/2012 9:56 AM  
Ellie,

Excellent article.
Thank you for posting it.

Tim
JoyP1
(Florida)

Posts:17


03/31/2012 10:32 AM  
Ellie. I've read the article and agree that the association is doing the right thing to try to revive the covenants. This is a long process. My beef is that until it is successfully completed, they do not have authority to enforce covenants or collect assessments and they refuse to admit that. Why can't they be open and honest about the issue. Some residents would continue paying dues, but some would choose not to. These are tough economic times and many residents are living on social security, where every dollar counts.
EllieD
(Vermont)

Posts:445


03/31/2012 11:25 AM  
JoyP1,

Based on the brief bit research I just did – the “interim time period” while going through the process to revive the covenants, seems to be a “gray area”.

Have you found any Florida case law, or published Legal opinions, re: collecting assessments while in the process of revitalization?

It seems to me that all expenses continue, and that expenses may actually increase, due to the effort needed to revive your extinguished covenants.
JohnC46
(South Carolina)

Posts:9471


03/31/2012 11:33 AM  
Joy

You say:

""""""I've read the article and agree that the association is doing the right thing to try to revive the covenants. This is a long process.""""""

With what you said, I would suggest you of presently doing more damage then good.

JoyP1
(Florida)

Posts:17


03/31/2012 12:14 PM  
John. I asked the real estate attorney if it was legal for the association to continue collecting assessments, etc. Her reply was, "NO." So....who is doing more harm?
MelissaP1
(Alabama)

Posts:9314


03/31/2012 12:25 PM  
Why are you asking a Real Estate attorney? Your HOA is a CORPORATION. You may be required to own property to be a member but the laws are contractual and corporate...May need to address your issues with the right source. NOT all attorneys are created equal or specilaize in what you are asking.

Former HOA President
JohnC46
(South Carolina)

Posts:9471


03/31/2012 12:31 PM  
Joy

The expenses of the association goes on and might increase while the restructure goes on, thus I would say anyone not paying/helping is hurting the effort.

Now as far as lawyers go. Quite often there are two in the room, one saying yes and the other saying no to the same thing. Generally the only difference between them is one is being paid by me and the other is being paid by you.

Additionally there has been an undertone in your posts that you do not like paying for things you do not use like the pool, etc. Sorry, but I think you might be looking for a way of beating/reducing your expenses rather then helping out the association of which you are a legal member of.

JoyP1
(Florida)

Posts:17


03/31/2012 12:32 PM  
Thanks to all who posted. I can't change anything, but now I have different views to consider.
JoyP1
(Florida)

Posts:17


04/01/2012 7:19 AM  
You say an HOA is NOT a "they or them" entity. If that's true, why wouldn't the HOA attorney answer my questions at the annual meeting? It's the members' money that is paying him. He works for the board;not for the members. That's why I believe it's an us against them issue. FL laws are in favor of the association board; not its members. Basically, the board can do whatever it chooses, legal or not, because there is no enforcement agency. That's why I don't like being forced to be a member. I prefer a voluntary association, so I will vote "NO" on revitalization.
JoyP1
(Florida)

Posts:17


04/01/2012 7:25 AM  
I asked a real estate attorney because she is very familiar with MRTA.
TimB4
(Virginia)

Posts:16778


04/01/2012 8:21 AM  
Posted By JoyP1 on 04/01/2012 7:19 AM

Basically, the board can do whatever it chooses, legal or not, because there is no enforcement agency.




The Board is allowed to do "whatever it chooses" because the membership allows it.

Typically there is no government entity to impose penalties on a board. This is because HOAs are considered civil contracts (the contract being the governing documents (CC&Rs, Articles of Incorporation, Bylaws, Resolutions) and the government typically doesn't get involved with a civil issue unless there is a complaint and it's proven that the corporation is breaking criminal statutes (embezzling, failure to pay taxes, etc.). Therefore, the only enforcement of the governing documents would be the membership.





Posted By JoyP1 on 04/01/2012 7:19 AM

I prefer a voluntary association, so I will vote "NO" on revitalization.




Well, then your task is simple. Start gathering support from the membership (talk to neighbors, hold meetings, publish a newsletter, etc.) so there are enough members supporting your opinion and will vote that direction.

I would expect that you would have to answer the obvious question of how the pool and clubhouse will be maintained.
The simple answer of letting those who want to keep it open be part of the voluntary organization I don't think will be enough. I say that because the obvious counter would be what happens if no-one wants to pay? Closing the facilities takes money and could give a bad look to the development which may impact property values. Bull dozing the amenities to the ground also costs money but would minimize the affect of aesthetics from having empty buildings. Donate them to the city/county might work, but that would also increase traffic in the development as others use the facilities. Selling them to an investor might do the trick but then you would still have the increased traffic issue.

As you can see, there are no simple answers to the issue.

By the way, does the city or Association pay for street lights?
Is there an entrance sign or common area lawn/park that needs to be maintained?
Who provides trash/recycling services, city or a contract with the Association?
If it's the Association, what will the increase be for each property to pay for their own service?


To gather support you may need to answer these questions as well as explain how those services will continue.

JoyP1
(Florida)

Posts:17


04/01/2012 9:56 AM  
Tim. The entrance & signs must be maintained....also the pool and clubhouse.
We have city streets city utilities and trash service. I think enough people use the social facilities to maintain them (there are lots of clubs).
TimB4
(Virginia)

Posts:16778


04/01/2012 10:09 AM  
Joy,

I'm not sure you can separate the two (the clubhouse/pool from the entrance sign/landscaping without amending the existing CC&Rs or instituting a new set of CC&Rs.

To amend the existing CC&Rs, as I understand the statute, the Association first has to reinstate the existing CC&Rs. Then the CC&Rs could be amended.

if you want to create a new set of CC&Rs, it's possible that they would only be applicable to those who agree to them (as it would be a new contract rather than revitalizing the old contract.

Since you have an attorney you've been discussing this with, you might want to see what their legal opinion is on amending vs. instituting a new one and how the statute affects either option.

Tim


MelissaP1
(Alabama)

Posts:9314


04/01/2012 11:30 AM  
I have no more reply to this post. Just wanted to tell TimB4 I will be in Virginia starting tomorrow for about a week and wanted to say "HI"...LOL! Will be going near Richmond...Thought it would be rude of me not to say Hello...LOL!

Former HOA President
TimB4
(Virginia)

Posts:16778


04/01/2012 6:11 PM  
Hi Melissa

I'm actually about 100 miles north of there (2-3 hour drive depending on traffic).

I hope you enjoy your time in the area.

Contact me at [email protected] if you want to chat.


Tim
MelissaP1
(Alabama)

Posts:9314


04/01/2012 8:58 PM  
Will do when I can! Looking forward to seeing VA!!!

Former HOA President
JP3
(Florida)

Posts:11


06/02/2012 12:20 PM  
Joy: If you are still having MRTA related problems with your HOA, and need some friendly (non-legal) advice, please email me directly. We just went through the MRTA mess and our HOA somehow managed to get revitalized using trickery of every kind. I, like you, had and continue to have, great concerns about an invalid HOA collecting dues when MRTA indicates that they have no claim or right to levy assessments on your property. Also, I am well versed in this issue and know who the best FL attorneys are, if you need them. Include a cell number if you don't mind. Good luck.
JoyP1
(Florida)

Posts:17


06/02/2012 12:54 PM  
I don't know how to email you directly (I don't have your address).
In the last few months I've found that there's not much a homeowner can do. Apparently, Florida creates statutes but doesn't enforce them. My only recourse seems to be a fight in court and I can't afford that. Documents being submitted for revitalization contain amendments that were passed years after the covenants expired but will probably get rubber=stamped automatically when they reach Tallahassee.
JP3
(Florida)

Posts:11


06/02/2012 1:02 PM  
Joy: Sorry bout that. The forum lets you enter your email to reply to, but provides no easy mechanism to do that. You can contact me here, and it will come directly to me. Include your cell phone and I can update you this afternoon on what I know. Thanks.

http://www.meadowsofkanapaha.org/contact-us.html
JoyP1
(Florida)

Posts:17


06/02/2012 1:18 PM  
xxxxxxxxxxxxxxxx I seldom use the cell phone, but will leave it on until 6:00pm today.
JP3
(Florida)

Posts:11


06/02/2012 1:27 PM  
Joy: hi. just called and left a VM. My phone number should be on your phone now.
JoyP1
(Florida)

Posts:17


06/02/2012 1:28 PM  
Try this number instead
xxxxxxxxxxxxxxxxx
thanks
KevinK7
(Florida)

Posts:1343


06/24/2012 8:17 PM  
I am currently experiencing a similar issue.

The HOA were once voluntary but had a shady C&R change ten years ago that created a "roach motel" situation forcing people into lifetime memberships (a local HOA attorney has been doing this to numerous HOAs around the Orlando area despite questionable legality issues). Since then assessments have almost doubled and the new board has determined things need to be taken up a notch. They have since been reporting numerous homes to code enforcement and telling homeowners that county will enforce and fine for C&R violations. They have also been threatening homeowners with legal action.

I have done my research.

Recently the HOA sent me an enforcement letter. My attorney sent them a letter informing them that they failed to file the notice of preservation in accordance with MRTA and the C&Rs expired. There was a recent court case that backs up my claim and is nearly identical to my situation (Matissek v Waller) but it seems the HOA has decided to ignore my attorney and proceed anyway. They initially threatened legal action stating they were sending me to their attorney back in February. After my attorney notified them I never heard from their attorney but in May they started harassing me again.

Interestingly they claim that I have failed to communicate with them over despite my attorney notifying them they lacked authority and they failed to respond. I have a feeling that they decided to ignore my first "violation," a small lattice I set up on the side of my house, but believe non-payment is an entirely different issue and that they still have the right to impose their will over my property. I know most people would continue to pay if threatened with a lawsuit even if the law is on their side.

Basically, MRTA eliminates the C&Rs on your property. The corporation still exists but they will lose the power to enforce the C&Rs, since the C&Rs no longer exist. They essentially will become a voluntary social club with no power over the individuals' property.
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