Protecting the General Membership Meeting.

My HOA is approaching its next General Membership Meeting.

At the previous meeting, those in attendance consisted of several members, a couple non-members, and the Board of Directors. This next meeting, the board is attempting to restrict access to to only members in "good standing". From reading Florida Statutes, it states that all members and parcel owners have the right to attend.

My question is:

Is their a third party that I can bring to ensure that I am allowed to attend my own HOA's meeting without being denied entry or is there a governing body that I can report this to before the meeting occurs to guarantee the meeting is held according to law? Can a police officer enforce these laws by attending?

(For those who have not read any previous posts I've made about the continuing adventures of my HOA, communication with the board does not work, as they do choose not to listen to differing opinions)

Show up, if they put hands on you call the po-po. Florida allows recording, right?

1. Do your docs outline who can attend meetings? 2. Do any other non-members (PM, atty, non-member spuoses, children, etc.) ever attend? If 1 is no, and/or 2 is yes, I'd say bring 'em along.

Kevin,

I have followed your posts from your very first. You have had a problem with this since the beginning. And it is still giving you a headache so what you are doing right now is not working. Mary suggested as I will also, just get a meeting with the Board and pay your assessments up first. The longer you put it off, it will only get worse for you. Once you get paid, then you can try to work out the differences with your Board. This is a no win for you by not paying. We ALL have to pay or lose any rights that we have as a member of the HOA. Sorry but there is no other solution for now.

Tony,

Do you really think this is sound advice to give to someone asking for help? We all know what happens to those who don't pay their assessments; first comes the lien, then comes foreclosure. What's to be learned from that? Yeah, that guy was really stupid to take that risk!

Kevin, here is part of the statutes:

7. Any unit owner may tape record or videotape a meeting of the unit owners subject to reasonable rules adopted by the division.

The thing is, more restrictive or not, these things you mention are very common in many HOA restrictions and covenants.

Our HOA has the power to make special assessments, up to a certain percentage, without membership vote.

Our HOA also has the ability granted in our CC&Rs to enter/access a lot-owner's property (though not their HOME) to correct violations, or in case of "emergency," or, in addition, to pass through to access common area, if need be.

While we don't currently have the ability to fine, other HOAs around us do, and, again, increasing the fines to the maximum allowable by law, if fines exist, really shouldn't be a problem, since the covenant isn't trying to give the ability to fine OVER a legal maximum.

But, individuals are certainly within their right to either agree to those covenants and purchase the lot (thereby becoming a member of the association and legally bound by the covenants), or not agree and, therefore, not purchase the lot and be bound by the covenants attached to the deed.

In your particular case, however, I realize this is about the difference in a mandatory HOA that already existed and the situation you're going through now.

However, just to reiterate, I don't find anything unusual or overly restrictive in the new covenants you listed as your example.

also, about the restrictions. I have no problem with more strict CC&Rs, just as long as they were there before. My issue is how they are making this change. We never held a vote. The HOA had mail in joinders sanctioning the new rules but barely anyone initially agreed to sign them (4% of my section signed them). Over the years when people either had moved or the HOA went door-to-door, until they collected 50%+1 signatures. I wouldn't mind these changes if the rules were followed 100% to make them.

The lawsuit, the plaintiff states "The original Covenants and Restrictions state that membership is voluntary. Under our original Covenants, and Florida law, this can never be changed without the consent of all property owners." I am unsure what laws they are basing this case on, but the motion also cites 15 precedences of the same legal issue that were decided against HOAs. I am currently planning on joining if it becomes a class action.

Kevin,

Please excuse my remark about paying your delinquent assessments. I had forgotten what your situation is. Please keep us informed about the lawsuit. It will be interesting to see how the judge rules. A gal from VA posted awhile back about a situation very similiar to yours. I believe the judge ruled 100% of the property owners must agree to the mandatory HOA. This is the way I believe it should be but I know of a few communities here in the Phx area that were converted w/o a 100% agreement.

KevinK7 - If the HOA owns no property, any change upon the land it doesn't own would be illegal, correct?

Brian,

I also wondered about "no common area" statement from Kevin. I find it most questionable that there are none. But Kevin writes--"We have lights that are solar powered (except one by the entrance that the BOD decided to hook up to the power grid) and a wall that was constructed on surrounding home owner's properties (that was paid for through a yearly tax assessment for 5 years). The cul-de-sacs were once maintained by the homeowners who lived on those sections, but the board replaced the Bahia grass with St. Augustine, planted various annual flowers, and installed irrigation. "

I am reading that there IS some common area.

In our neighborhood, we have several cul-de-sacs with a patch of grass in the center. The area does not appear on a plat and is a county right-of-way (as explained to me from a civil engineer).

As for the lights, they are in the easement between the sidewalk and the street (much like the road signs and mailboxes).

The wall is built surrounding our neighborhood and is on the rear of the property. It is possible that it is not on their property but on an easement in the rear of the property (the county did offer a grant for partial construction). The HOA tried to build the wall around other properties (a water tower and I believe the YMCA or school but they denied access to build on their property). The wall ends at a couple main streets where they tiled a section and put the name of our subdivision on the wall. The also made a small brick enclosing for flowers in front of our name.

The couple retention ponds have signs for no trespassing by order of the county, and according to the property appraisers office, are owned by the Board of County Commissioners.

When I attended the meeting, the BOD had referred to these locations as common property. When questions arose about the streets and such right of ways (in regards to cars parked on them), the BOD admitted that there was nothing they can do because the county owned them but they said that they were looking into a solution. Documents filed with the comptroller show homeowners requests to vacate an easement but I have not found any filed under our HOA's name that would officially make it theirs.

Kevin,

Even if these areas are not owned by the HOA, if the HOA has the resp. to maintain them, then they may be referred to as common areas. These areas, together with maint. of the street lights, makes up the maint. obligation for your HOA and the reason for having assessments, right?

wow kevin... i feel for your HOA. that's a mess. MFHOA had granted easements to the city for the areas along the roads, but we still owned them (and maintained them). I know we owned them, because when the city crews tore them up to place utilities, I made their folks come out and replace the plants, fix the sprinklers, etc.. I also paid taxes on them.

I was trying to find more information regarding any kind of rules or regulations regarding our meeting when I was going through our original documents. According to my sections covenants, they were amended in 1983. The developer had set up the HOA but from what I was told, they had gone bankrupt and a local organization (the one that had owned the land prior to construction finished completing the neighborhood). I noticed in the amended covenants it states:

15. Any Property Owner shall have the right to
enforce the Covenants and Restrictions placed on
the Property by this instrument and, in addition,
*************, Inc, retains the exclusive right to
amend, modify, change, or eliminate any or all of
said Covenants and Restrictions on any of the
Property which is owned in fee simple by
**********, Inc. at the time such amendment,
modification, change or elimination and further
provide that no change in any of the said
Covenants and Restrictions shall be made without
the written consent of *********, Inc. or the
********** Foundation even though such entity
may have no real property to be benefited by
these Covenants and Restrictions.

Does this mean that the only entity that can make changes to the covenants (at least for my section) is this foundation and not the HOA? I had contacted the organization to see if they can offer any information regarding their role in our neighborhood.

The original documents do not specify whether it is a mandatory or voluntary association.

The proposed amendments that the HOA has been promoting states (our section is one of the sections claimed to have passed this amendment):

Section 1. Membership. Every record owner taking fee simple title to a Lot subsequent to the date of the recording of this Amended and
Restated Declaration in the Public Records shall automatically be deemed a member of the Association assuming all rights, obligations and benefits of
said membership. Any record owner who has taken fee simple title to a Lot prior to said recording date shall not automatically be deemed a member of
the Association unless or until said Owner has agreed to join the Association pursuant to the terms of the Association’s Bylaws as then in effect. Any
change in record title ownership of a Lot shall subject the Lot Owner to membership upon the recording of the transfer deed.

The bylaws state:

C. Membership – Any owner of property in ****** ****** *****, as defined in the Articles of Incorporation and amendments thereto, may become a member of the
Association by paying the annual dues set by the Association. To maintain in
good standing as a member, the member must pay the annual dues to the
Association within a period of sixty (60) days of the due date.

According to the plaintiff against the HOA, "the HOA believes that they don't fall under the governance of 720 because they did not put the right to lien the homeowners house in their bylaws. This remains to be seen but that was the whole purpose behind the bylaws. Try to avoid 720."

To tell you the truth, I have no idea where the HOA gets their information! I get the feeling from talking with them and their lawyer that they have picked certain laws that they liked and are using them as the basis for their entire game plan.

Part of the frustration is waiting on the courts. The HOA's lawyer tried to pass several motions throwing out the case. That I believe failed and now we are waiting for these last two motions to go through. The other part of the frustration is not getting any answers from the HOA. Even though we are not members, we had paid a fee assessed unto us, and in my opinion, HOA owes us some accountability. We had only requested information regarding our fee and the changes that would affect our title.

I apologize. It is a little confusing to me as well. I looked through the documents again to make sure I wasn't missing something. I don't see anything about a lien. I really don't know what the HOA is getting at. I am planning on attending the meeting and I am printing flyers and going door to door to make sure all homeowners are aware of the meeting. The HOA rarely advertises the meeting in advance, except on their website.

In the bylaws, it has this provision about Assessments:

XIV ASSESSMENTS
As more fully provided for in the Declarations of Covenants and Restrictions for
Sand Lake Hills, as they may be amended from time to time, and the Amended and
Restated Declaration of Covenants and Restrictions for Sand Lake Hills, as it may be
amended from time to time, Owners may be obligated to pay Assessments to the
Association. Said assessments can be increased or decreased from time to time
pursuant to the approval of a majority of Directors of the Board of Directors.
Assessments may be collected in installments. If an Owner is obligated to pay
Assessments and fails to pay the installment of an Assessment when due, such
Assessment shall then become delinquent and the entire balance of the Assessment for
the year for which such Assessment was made shall then become immediately due and
payable together with interest thereon and cost of collection thereof, and shall become
the continuing personal obligation of the Owner against whom the Assessment was
levied.
If the Assessment is not paid, the Association may at any time thereafter bring an
action and/or a suit on the personal obligation against the Owner. There shall be added
to the amount of such Assessment all costs associated with the collection of the
Assessment(s), including reasonable attorneys’ fees. No Owner may waive or
otherwise escape liability for the Assessments provided herein by non-use of the
Common Property or abandonment of his Lot.

In the Amendments it states this:

ASSESSMENTS
Section 1. Assessment. Each Owner shall be deemed to covenant and agree to pay to the Association an assessment for the operation of
said Association which is responsible for the maintenance, management, operation and insurance of the common areas and represents all residents of
Sand Lake Hills in matters of common interest. Said assessment can be increased or decreased from time to time pursuant to the terms of the
Association’s Bylaws. These assessments, together with such interest therein and costs of collection thereof as are provided in the Bylaws, shall be the
personal obligation of the person or persons who is/are the owner of the Lot at the time when the assessment falls due. In the case of joint ownership,
all joint owners shall jointly and severely be liable for the payment of such assessment. The Association shall have the right to recover its attorney’s
fees and costs incurred as a result of the Lot owner’s failure to pay said assessment, whether or not suit is actually filed.

ARTICLE VIII
Section 2. Enforcement. Failure of the Owner to comply with such restrictions, covenants, or Rules and Regulations shall be grounds for
action which may include, without limitation, an action to recover sums due for damages, injunctive relief, or any combination thereof, including costs
and attorneys’ fees incurred in bringing such actions, and if necessary, costs and attorneys’ fees for appellate review. The Association shall have the
right to suspend use of Common Areas for any Owner violating these Covenants and Restrictions for a period of time which is the longer of sixty (60)
days or the term of continued violation.
Section 3. Fining. In addition to all other remedies, the Association may impose a fine or fines upon an owner, tenant, guest, invitee or
employee for failure to comply with this Declaration, or any rule or regulation promulgated hereunder, provided the following procedures are adhered
to:
(a) Notice: The Association shall notify the owner or other party of the infraction or infractions. Included in the notice shall be the date
and time of a special hearing at which the fine or fines will be addressed. Such notice shall be provided to the offending party at least fourteen (14)
days prior to such hearing.
(b) Hearing: The hearing as set forth above shall be before a committee of at least three (3) members of the Association appointed by
the Board who are not officers, directors, or employees of the Association, or the spouse, parent, child, brother, or sister of an officer, director, or
employee. If the committee, by majority vote, does not approve of a proposed fine or suspension, it may not be imposed.
(c) Penalties: The Association may impose a fine against the offending party in an amount not to exceed $100.00 per violation. A fine
may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed
$1,000.00 in the aggregate.
(d) Payment of Penalties: Fines shall be paid not later than five (5) days after notice of the imposition of the fine.
(e) Nonexclusive Remedy: These fines shall not be construed to be exclusive, and shall exist in addition to all other rights and
remedies to which the Association may be otherwise legally entitled.

Article VIII. Section 2 states: "Failure of the Owner to comply with such restrictions, covenants, or Rules and Regulations shall be grounds for action which may include, without limitation, an action to recover sums due for damages, injunctive relief, or any combination thereof, including costs and attorneys’ fees incurred in bringing such actions, and if necessary, costs and attorneys’ fees for appellate review."

Wouldn't "an action to recover sums due for damages" be a lien????

I agree, a notary who is a board member should not be notarizing any documents that pertain to the assn.