FL conflicting opinions from attorneys

Not an attorney but I would start with the deeds, they should be available on-line and whether there are any restrictions on them including whether membership in an HOA was required.

Hi Gina:

As Glen stated you would need to potentially start with the warranty deeds. When individuals purchased their homes if they were considered part of an HOA their warranty deeds will have the Declaration of CCR’s attached to and running with their property.

I am not an attorney either; however, I would believe that potentially a developer could not just add blocks or lots after they were sold. When an individual purchases property what is potentially in effect at that time is what is legally conveyed. If a developer then supposedly added after the fact, I would have to potentially agree with the attorney that it cannot be done that way as the Declaration of CCR’s would not be legally attached to and running with the property when purchased.

I’m not sure why the title company cannot give opinions because that is insurance purchased to cover individuals and the mortgage company regarding clear titles to the properties. The title companies did research prior to individuals purchasing to insure what was attached to and running with the properties. Individuals can check their title insurance documentation and they should also state, as with the warranty deed, whether or not documentation is potentially attached to said properties.

Two problems:

When we were in the height of the building boom here, it appears that the title companies took shortcuts and didn't verify the information. Secondly are the incorrect amendments to the CC&Rs that were done along the way.

I've learned more about HOAs and their establishment than I thought I would ever know.

I'm aware of a number of the homes who have worked with their title insurance companies and they have corrected deeds at this point. The obstacle we have run into is that with one of the homes, the board is telling them that they have to have a "title opinion" to have their corrected deed, which HAS been filed with the county, to be accepted by the board. This house is not one of the 19 they recognize as being a problem child and not in the association (besides the other 15 from 2005). In Florida, a title company is precluded from giving an opinion; only an attorney can give an opinion. One title attorney (the board's) says that this homeowner is wrong. The title company says the board is wrong. The 3rd attorney isn't a title attorney so they aren't sure. In addition, this home has a lien on it for non-payment of dues. The homeowner can't get a job with homeland security until the lien is cleared; until he gets a job, he can't get an attorney.

To give you an idea of how these homes were identified as NOT being part of the HOA, a matrix was developed for each block and lot that said if they were in or out based on the date of the amendment. 70 homes were identified in that exercise that were NOT part of the HOA based on the fact that the developer had to have control of the entire parcel when creating the HOA; he did NOT based on the documents. There are the six blocks and individual lots throughout the community (they missed identifying some homes) that, based on our understanding, were NOT part of the 2000 establishment of the HOA.

So I'm back to the question that we have:
The developer established an HOA in 2000. He sold the first homes in 2001. It was realized that six blocks were omitted in the original documents and were "amended" into the 2004 "oops" document. In the mean time, 90% of the homes had been sold by the time they had filed that 2004 document. Is it considered that the developer had full control of the parcels not originally named in the documents? Our position is NO because there were lots that were sold in those parcels PRIOR to filing that document. Therefore, he couldn't just arbitrarily add anyone more into the HOA. So, was the "amendment" really an addition? THAT is what we are trying to understand. Or, because there wasn't turnover yet, he had the right to change the documents to just add them in?

I think Janet has the correct view:
If these homes are enjoying amenities and/or driving on HOA roads, then what else could they be if not a member of the HOA?

The legal property description on the 1948 deed from the orginal landowner giving the streets, beach and water system to the HOA did not cover the correct road names, but TODAY, they are within the property that gets serviced by the water and roads. They are within the boundaries. Thus, they are within our HOA.

Hi Gina:

As I previously stated I am not an attorney; however, let’s see if we can potentially break this down to better understand certain potential options which may or may not be available and you can at least ask your attorney some questions.

Now first of all as a general rule property that is not encumbered usually cannot be so encumbered without agreement of the property owner. In other words the property owner is given at time of closing all pertinent documents, agrees to said documents, they are added to the property and run with said property even when sold in the future. However, there can be possible exceptions which a court can rule.

Now the potential easy fix would be for all property owners to sign and agree to have the CCR’s attached to and run with the current properties. If everyone is on board this would be possibly pretty simple to accomplish. If everyone is not on board then you have a more difficult situation in that you need to try and get them to agree by stressing the issue of they will not have access to the community amenities such as club house and pool. If they agree great … if they do not agree you might have options of 1) they have no privileges while they own property and when they sell you can make same offer to new owner … eventually over time you might finally get all properties covered under CCR, or 2) potentially get a court order if you want to pursue and incur legal fees where a judge can review the situation with regards to potential intent because of prior conveyances on the various lots if they previously had CCR’s. Also, if you pursue it could potentially go either way depending on the judge, interpretations, etc.

The following is potentially what the one attorney is referencing when he states that the developer could not add properties after being sold; however, depending on some circumstances there are potential exceptions if I am reading this correctly:

REAL AND PERSONAL PROPERTY CERTAIN CONVEYANCES MADE VALID

 694.08 Certain instruments validated, notwithstanding lack of seals or witnesses, or defect in acknowledgment, etc.—

 (1)Whenever any power of attorney has been executed and delivered, or any conveyance has been executed and delivered to any grantee by the person owning the land therein described, or conveying the same in an official or representative capacity, and has, for a period of 7 years or more been spread upon the records of the county wherein the land therein described has been or was at the time situated, and one or more subsequent conveyances of said land or parts thereof have been made, executed, delivered and recorded by parties claiming under such instrument or instruments, and such power of attorney or conveyance, or the public record thereof, shows upon its face a clear purpose and intent of the person executing the same to authorize the conveyance of said land or to convey the said land, the same shall be taken and held by all the courts of this state, in the absence of any showing of fraud, adverse possession, or pending litigation, to have authorized the conveyance of, or to have conveyed, the fee simple title, or any interest therein, of the person signing such instruments, or the person in behalf of whom the same was conveyed by a person in an official or representative capacity, to the land therein described as effectively as if there had been no defect in the acknowledgment or the certificate of acknowledgment, if acknowledged, or the relinquishment of dower, and as if there had been no lack of the word “as” preceding the title of the person conveying in an official or representative capacity, of any seal or seals, or of any witness or witnesses, and shall likewise be taken and held by all the courts of this state to have been duly recorded so as to be admissible in evidence;
 (2)Provided, however, that this section shall not apply to any conveyance the validity of which shall be contested or have been contested by suit commenced heretofore or within 1 year of the effective date of this law.

 694.10 Certain titles not affected.— Nothing in s. 694.08 contained shall be taken or held to validate or perfect any title to any land as against one or more in adverse possession thereof or holding or claiming title under a different or adverse chain of title from either a common or different source.

Now here is where possibly a court may need to rule if the homeowners do not want to be in an HOA and if the HOA wants to pursue possible legal options:

1) My understanding is the developer purchased the initial property in 2000 from another who was developing a 55+ community. This land within this 55+ community would have possibly been encumbered with CCR’s. Therefore, the intent of the lots was to encumber with CCR’s. In essence there is somewhat potential proof that all lots were intended from prior deeds to be under HOA’s.

2) All the land the developer purchased in 2000 and covered under the HOA documents should be currently covered and all considered part of the HOA period end, as established at that time. These should all have the CCR’s attached to the property. My understanding is these lots do not have an issue, correct?

3) Declarant purchased blocks 70-74 in 2002. Now these are the ones which potentially could have an issue, if they were not added to the HOA and the CCR’s shown on the warranty deed at time of selling to new owners. However, when he purchased these lots were they from a prior developer and did these have prior CCR’s attached and running with said lots. If so then again as in #1 above, there is potential intent for lots to be under an HOA.

4) Were all owners at time of purchase given a copy of the CCR’s, even though potentially they were not yet added to HOA? Also, did their closing documents at all make any mention of an HOA? If so, they knew there was intent for the property to be so encumbered by an HOA.

5) Developer amended the CCR’s in 2004 (Oops Document) to add the properties which were not previously added. At this time was there a potential membership meeting and did the owners vote on this amendment? The developer probably was not the sharpest crayon in the box and did not take that step, which if he did would possibly have owner’s votes registered and the assumption that they were part of the HOA. If not, then he potentially encumbered property without property owner’s consent and property he no longer owned.

As you can see from above there might be potential options regarding intent for possible prior or subsequent conveyances. Depending on the court, they could if owners were possibly aware of the intent then place all properties under the HOA, but this could go either way depending on other laws.

Now … you mentioned a couple of other items which concerned me or that I question.

PER YOUR STATEMENTS:

1) The obstacle we have run into is that with one of the homes, the board is telling them that they have to have a "title opinion" to have their corrected deed, which HAS been filed with the county, to be accepted by the board. This house is not one of the 19 they recognize as being a problem child and not in the association (besides the other 15 from 2005). In Florida, a title company is precluded from giving an opinion; only an attorney can give an opinion. One title attorney (the board's) says that this homeowner is wrong. The title company says the board is wrong. The 3rd attorney isn't a title attorney so they aren't sure. In addition, this home has a lien on it for non-payment of dues. The homeowner can't get a job with homeland security until the lien is cleared; until he gets a job, he can't get an attorney.

If your HOA is the entity that has a lien on this property this should be addressed ASAP or possibly this individual could have some legal issues which could be filed. The statement you made is a little confusing, but if the HOA is in essence saying that they are not considered part of the HOA until they have a “title opinion”, then they potentially better get the lien removed for now. It would in essence be illegal to lien property that is not considered part of the HOA, as dues would not be owed. The homeowner could possibly sue especially if denied a good job due to a potential erroneous lien filed. So … if the HOA has given anything in writing to this individual making any statements to the effect of not being in the HOA then they could be digging a legal hole with regards to liability and having any lien. You might check with your attorney on this issue because this one caught my eye.

2) Right before turnover, the HOA attorney disclosed that 15 houses, right off the bat, were not in the association (literally right across the street from our house.) What was discovered was that the strip of land that those houses were built on were considered a utility easement which meant they could NEVER be subjected to being in an HOA.

I am not sure why the attorney made the NEVER statement. There are many instances where lots are encumbered with utility easements and which are referenced in CCR’s. As long as the structure is not built on a utility easement, said easements are noted and addressed in the governing documents, then there should be no potential issue that I can see. Even in FL the following is an HOA and in which their documents make the following statement:

http://crosbycrossingshoa.com/Documents/HOA%20DISCLOSURE%20CROSBY%20CROSSINGS.pdf

8. Improvements Within Utility Easements. No structure, trees or bushes or other material or plantings shall be placed or permitted to remain within a utility easement which may damage or interfere with the installation or maintenance of utilities, or which may impede the flow of water through drainage channels in the easements. The easement area of each Lot and all improvements in it shall be maintained continuously by the Owner of the Lot. Lots 9 and 10 in Block 5 contain a 5 foot side yard utility easement. Owners of said lots are hereby notified that placement of a fence within said utility easement shall be at owner’s risk, and that if any utility company must remove the fence to maintain the utilities, the fence shall be replaced at the Owner’s expense.

Purchasers of Lots 9 and 10, Block 5 initial here: _________ __________

3) The roads is another sore subject. They are technically public road that have never been deeded to the HOA to be privately maintained.

Not sure why this is a sore subject? Everyone should be thankful that the roads have never been deeded to the HOA to be privately maintained. Do you know how many HOA’s would give their eye teeth to not maintain roads or have tried to get local government to maintain? It is one thing to get individuals on board to pay for “fun” items such as club house or pool and quite another to get them on board to raise dues or assess for road repairs. If anyone even suggests having the roads under the HOA, everyone else needs to potentially go after them with pitchforks and torches.

PER YOUR QUESTIONS:

Is it considered that the developer had full control of the parcels not originally named in the documents? Our position is NO because there were lots that were sold in those parcels PRIOR to filing that document. Therefore, he couldn't just arbitrarily add anyone more into the HOA.

I potentially would agree with your position to the extent that … if they were not encumbered prior to selling the lots and have CCR’s on warranty deed then potentially unless so ordered by a court the lots potentially cannot be encumbered without the property owner’s consent.

So, was the "amendment" really an addition? THAT is what we are trying to understand.

The amendment would be valid for all properties that were previously encumbered. If it added any unencumbered lots would be potentially for the homeowners to agree to such encumbrance or for a court to possibly decide.

Or, because there wasn't turnover yet, he had the right to change the documents to just add them in?

Potentially the developer had the right to possibly amend the CCR’s without homeowner consent prior to turnover; however, he potentially did not have the legal right to encumber property he did not own if it was not previously encumbered. Again, this would be maybe for a court to decide.

Again, these are my opinions and be sure to check with your attorney on any options.

I called a real estate attorney friend to ask for a shove in the right direction. He pointed me BACK to the declaration and stated that any "good" declaration would have verbage allowing the developer to ADD parcels while still under developer control, AND that there should be verbage on how, after turnover, the association can add members. With that said, there is ONE paragraph the we need clarification on the LEGAL term de-annex.

First of all, there is NOTHING that addresses adding homes after the fact. The attorney friend said that I should find something that says, like 75% of the membership approves the additions.

The verbage states:
3. De-Annexation
Lots may be de-annexed by the Developer, without the Consent or joinder by the Master Association, members of the Master Association or any other person whomsoever, including but not limited to any mortgagee, institutional or otherwise. Should the Developer determine in its sole discretion to de-annex Lots, the deannexation shall be evidenced by an amendment to this Declaration of Covenants and Restrictions, and such amendment shall be recorded in the Public Records of ****** County, Florida. The Developer's right to de-annex Lots shall terminate upon completion of the sale by the Developer of the last unimproved lot. Notwithstanding the foregoing, once a common property(s) has been or is required to be conveyed to the Master Association pursuant to the terms of this Declaration, the Developer shall not be entitled to de-annex the applicable common property(s) or required to be conveyed to the Master Association.

Using the term de-annex, did the developer have the right to ADD parcels? I do not believe that is the case. A reasonable person takes the word to be REMOVE. But, since this is a LEGAL document, I need to make sure that the LEGAL term doesn't mean add or remove.

I swear the more I go thru the umpteen documents, the more that I uncover. My reasoning to the board on why they could NOT have added blocks 70-74 and other missing parcels was that they didn't have control, when the Declaration was written of those parcels. Actually, that is an inaccurate statement, but I was on the right track.

Now, from the knowledge of two attorneys, the declaration is technically a contract that controls the behaviors of the affected parties. In the declaration, there is NO mention ANYWHERE that anything can be added to the HOA. With that said, the light bulb went on and realized, that without 75% vote of the HOA, no joinder can be accepted that would allow us to amend the document to allow them in. The joinders that were signed (I believe 5) are not technically legal until it goes to a vote of the people. After an affirmative vote, then we could amend the documents with the joinder.

The one attorney asked who the attorney were that wrote the original docs and was surprised. Several of us guess that it was morphed from a condominium document that would in the normal scheme of things be able to add to a building - some things just read funny if you are thinking houses versus an apartment or villa. What are they going to do? Add above the penthouse?

I'm not sure what you mean by that?

By the time the 2004 document was filed 8/18/2004, we were probably at 85% of the lots being sold out. We reached 90% by 2/5/2005.

Okay, found what you were talking about; had to muddle my way thru a number of declarations to find the last one that states anything in regards to this:

It's basically the 3 votes for each lot still under developer control. It takes 75% of affirmative votes to change the documents so now I am really puzzled how it happened.

So, guestimating numbers (will have a serious job researching here, but will), I show that developer had 29% and owners had 71% when the 8/18/2004 document was done.

Definitely changed without a meeting. In fact, as we get to reading this, the developer did us a "favor" of changing/amending the declaration in 2005 when we clearly were over 90% to "clean" them up for us. Oh, yes, there were changes made in that one too. We know that the developer thought he had full rights to do whatever they wanted while they were in control.

I live in Florida in an HOA. This posting is great! It reads like a super detective novel. We have many of the same problems and are working to try and fix them. It makes you wonder why anyone would buy in an HOA. Good luck and keep us updated on your progress.