C&Rs Expired, HOA Notified, Continued Threat Of Legal Action

The subject line says it all.

To sum it up, back in February I got a notice from the local HOA that stated I had a decorative lattice that violated covenants and restrictions. The C&Rs state no fences or walls are allowed on the property.

The HOA sent me a letter that they were referring me to their attorney because I failed to remove the lattice. (I actually did but it seemed the letter was sent postmarked the day I took down my lattice). I had no idea who their attorney was and had to go through Sunbiz to find out.

Seeing that I was being sent to their attorney, I had an attorney look over the entire situation. They had discovered that pursuant to Marketable Record Title Act (MRTA), the C&Rs had expired. My attorney sent their attorney a letter.

Here is part of the letter sent from my attorney:

I know that you are aware of the impact of the Marketable Record Title Act (“MRTA”) on covenants and restrictions (“C&R’s”) since, in researching my client’s title, I came across a 712.05 preservation notice you recorded for the Club on 11.23.09.2 Of note, your 712.05 notice did not purport to preserve the C&R’s recorded on 12.07.78.3 Possibly that was because the notice you recorded was recorded more than 30 years after the 12.07.78 C&R’s.

My client’s property had been subject to the 12.07.78 C&R’s up until July 2, 2009 – the 30 year anniversary of the original deed out from the developer of my client’s Lot XXX (that deed being my client’s “root of title”). As you can see from the enclosed, none of the muniments of title in my client’s chain of title, beginning with his root of title, reasserted the 12.07.78 C&R’s by specific reference to book and page number.4 Consequently, at the 30 year anniversary of my client’s root of title, MRTA had the legal effect of cutting off the 12.07.78 C&R’s and any purported amendments thereto. See, e.g., Matissek v. Waller, 51 So.3d 625 (Fla. 2d DCA 2011); see also, Judge Lisa Munyon’s March 4, 2011, “Order on Plaintiff’s First Partial Summary Judgment Motion – Marketable Record Title Act,” in Busch v. Sand Lake Hills Homeowners Association, Inc., Case No. 10-CA-11,262.

In light of the above, my client’s lot is no longer subject to the 12.07.78 C&R’s nor any purported amendments thereto. Hence, your client’s noncompliance notices are nullities with no legal effect.

Pretty straight forward. The law requires X. The HOA did Z.

I never heard anything else from the HOA or their attorney. I put my lattice back up and stopped paying any assessments because according to the information obtained from the lawyer, and presumed to be accepted by the HOA because of their lack of action or interaction, the C&Rs ceased to exist on my property and I was under no further obligation to the association.

May I add as a side note that 10 years ago a law firm helped the HOA amend their C&Rs to turn the HOA into a "mandatory" subdivision. I say "mandatory" because they worded the covenant so that it was voluntary to join but once you joined or transferred ownership of the property you were stuck in. This is also known by some in the neighborhood (as well as other neighborhoods) as the "Roach Motel Clause".

Anyway, fast a couple months and all of a sudden I start getting letters from the HOA again saying I am in arrears and need to pay or face legal action.

I was a bit surprised to see any communication come from them considering that they never responded or acted in regards to the first "violation" months ago, and that being I retained an attorney, why were they communicating with me directly?

The impression I get is that they decided to leave me alone with my lattice but when I stopped paying I became a bigger blip on their radar.

Now I am uncertain where to go from here. The HOA doesn't really communicate with me apart from their non-compliance letters. After all this happened I ran into the Board president. She was in front of my house in a golf cart while I was doing yard work. I greeted her but she just ignored me and kept driving. I also don't understand why their attorney never contacted me. It makes me wonder if the HOA is communicating with their attorney or ignoring their attorney in hopes that I pay when threatened with legal action.

Another side note: since my situation, the HOA has been stressing in their newsletters that the neighborhood is deed restricted, and that they have been specifically mentioning violations such as mine and that county code enforcement will enforce C&R violations - something the county denies (unless a C&R is the same as county code).

Kevin:

You are in a state of limbo. The association asserts that the CC&R's are still in force and you say they are not. It's doubtful that the other side is going to give in, leaving the ball in your court.

Assuming that you are not willing to give in I think you are pretty much going to have to file a quiet-title action or sue for declaratory judgment that the CC&R's are no longer valid.

Doing nothing is not a good idea as the association will continue to pile up fines, assessments, and liens on your property. Most third parties, such as collection agents and title companies, are going to assume that the CC&R's are valid and that you are just one more crank who does not want to pay his assessments.

I am sure that you do not want to finance a lawsuit against your association but I see little alternative except to give in.

BTW, you are correct that the association should be communicating with you through your attorney.

This is a different neighborhood I have property in. The only thing similar is the attorney involved in the one neighborhood (Neighborhood A) was initially involved in this neighborhood (Neighborhood B). (Bad Luck?)

For some reason this neighborhood changed attorneys a couple years ago around the same time a new board stepped in. The new board started expressing an interest in creating stricter rules, upping assessments, and stepping up enforcement.

It seems the HOA dropped the ball and never filed the paperwork in accordance with the law effectively causing the C&Rs to expire.

I get the impression that this BOD is a 2nd Generation board, meaning they stepped into power already assuming everything was good from the previous board. The new attorney probably filed the necessary paperwork without researching the entire scope of the neighborhood (the development is rather old) basing their information off of what the previous attorneys had done (and those attorneys are now having some serious problems because of their actions in Neighborhood A, as well as other neighborhoods I do not own property in). The previous attorneys converted the neighborhood to mandatory because they called it a "gray area" and that they could get away with it as long as nobody questioned it.

In both situations I have tried to be open with the boards and resolve matters without escalation. When they sent me to their attorney over the lattice (I believe I mentioned it in a thread back in February), I was willing to work with them but without any notice they supposedly sent me to their attorney. That is when I got an attorney involved. Sadly I am probably the only resident who has actually read the C&Rs as well as all related statutes. I have tried to educate my neighbors and encourage involvement but my neighborhood is a former retirement community and the older residents are stuck in their ways (most don't even know about the decade-old conversion).

Kevin,

I would go back to your attorney and have him check into it.

I have not read FL law. Is it possible that the restrictive covenants are no longer enforceable but the contract (deed restrictions and/or voluntarily joining the Association) requires you to pay assessments? These could be two separate issues.

I suspect that the Association is communicating to you because you never informed them to direct all communication in any and all other matters to your attorney.

Tim

Kevin,
I am in Clearwater but if he is good I dont mind if his in Orlando. Thanks

I wouldn't think so. My past experience with boards has been unpleasant. The last board were told they lacked any authority but they insist the ruling was only for one property, which makes no sense considering the law would apply to all properties. Even after the ruling they still are fighting.

As you can tell, I like probably most other homeowners have little experience with attorneys!

One thing I am wondering about is the thought process of the board and their attorney. I am not a lawyer but I have spent much time reading the law. This situation doesn't really seem complex and straight forward and has essentially identical cases to back up my claim. I have a hard time understanding the BOD's actions.

Well take a look at it from their perspective.

Based on your post, this or a previous board asked the attorney to take the necessary steps that the CC&Rs don't expire. Based on your posting, your attorney is of the opinion that the Association Attorney failed to dot all the i's and cross all the t's. The Association attorney may or may not be of the same opinion. Lets say they are of the opinion your attorney is incorrect but that the lattice work wasn't worth the extra time/money to enforce (certainly an option for any board).

Now you quit paying your assessments. The Association probably still has expenses (street lighting, trash/recycling service, common area maintenance, etc.). Not paying assessments is typically a clear cut issue for Associations. Although they were willing to not test who was right or wrong for the lattice work, they are willing to test the issue on payment of assessments.

Until a court actually rules and all appeals are exhausted, it's a case of your lawyer told you one thing and mine told me another. Now the question boils down to who is willing to pay the cost to have a court rule who's opinion is right or wrong?

Irregardless of the ruling, one thing is certain, it will cost a lot of time, energy and money. The attorneys and courts will collect their fees and most likely, neither side will be completely happy with the outcome.

Tim

KevinK,
You can email to [email protected] the attorneys name if you please.
Thanks

I will have to check out those links. I will do what you recommend as well. I was actually creating a direct mailing. It is the easiest way to reach every property owner in the most time efficient manner and provide the most information.

In the last neighborhood the HOA did a really good job demonizing the plaintiff. People would vandalize his home because they were under the impression he did not want to pay his annual $100. They lied about having common properties (they had none but gave the impression county easements were theirs) and completely misrepresented the entire case to the surrounding neighborhoods. I don't want that to happen to me.

The problem with my neighborhood is that there are many elderly and absentee homeowners who live up north and use the neighborhood as a "snowbird" residence. I have come across more renters than owners. I could utilize county tax records to contact everyone. I have talked to some of the homeowners but most don't even understand the mandatory conversion or any aspect of HOAs.

And as a funny note, I just received a letter from the HOA today that they will be ending any direct communication with me and that all future communications must be with their attorney, but they never provided me with any of their attorney's information!

Kevin

Does your association "believe/think" they legally did renew even if you and/or your lawyer disagree?

Thanks

I am not sure what they do or do not believe because they won't communicate with me anymore and when I initially informed them of the MRTA deadline being missed. I thought that their failure to act on their threat of legal action and months of silence was in itself an act of complaisance.

They may think that they legally renewed the documents but the paper trail says otherwise. The law is pretty clear and the dates on the documents do not lie. I assume that since they are now pursuing my unpaid assessments they believe they did legally renewed it.

KevinK7,

I Was told once that Boards love to just communicate with the owners attorney to cause added expense, and love to continue contacting your attorney for petty stuff,? I advised them and my attorney of that, and requested the Board's attorney to communicate exclusively with me.

@Bonnie

MRTA is a Florida Statute.

Here is a link to the Florida Bar Journal to what I think is the best explanation of what it is:

http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/A8A8DA7514A6718885256FF10060DF88

@Islam

That could be good thinking. That can help prevent added costs. When Neighborhood A started demanding money from non-members we asked the board questions. They refused to answer. We asked their law firm questions. The HOA instructed their attorneys to no longer communicate with us and to only communicate with our attorney (we had no attorney at the time). Maybe they were doing the same.

@JohnC

I think the HOA is turning this into a pissing contest. My attorney simply informed them of the law and that the actions taken by the board and their attorney were contrary to the law. I don't see any way the HOA's attorney would win this argument unless they were to try and bleed me dry, which is why I think they are pissing.

I will say that I am uncertain as to whether or not the HOAs attorney is even aware of what is going on, or inversely, the HOA is unaware of the attorney's actions. While my attorney sent their attorney the previous letter, I have had zero communication from the HOA or their attorney other than their recent letters. When my lattice was sent over to their attorney, did their attorney concede to my attorney's argument and choose to do nothing? Did the board decide it wasn't worth fighting?

Based on past actions from the HOA,I wouldn't be surprised if the HOA refused to take no as an answer. Back when they were lawyer shopping to convert this association they consulted several attorneys. Pretty much all of them told them their plans would not hold up. The HOA stopped when they found a law firm that was willing to do the conversion.

This situation may not be any different. It is probably more vital and my situation means their entire survival. A perfect example of corporate Darwinism.

Kansas has a MRTA law as well. 25 year limit. Just google MRTA and your state.

Because your issue is unique, you should consult with your attorney first and see what their advice is.

Sorry Tim I didn't see there was a second page when I posted. Great minds think alike I guess.

KevinK7;

I am in a similar situation, Mediation took place,without resolution, my attorney mentioned, selective enforcement and MRTA, its been 3 months and have not heard a word? You need to be sure MRTA applies are you?

Is really unfortunate,ignorance is the root of all the problems,and just like you mention to most of the owners I am the trouble maker. When really it all began with the developer not registering or updating their documents, living the mess to a buch of wild pigs running the place, but I take blame for not having an attorney read the docs prior to purchasing.

Kevin

Are there amenities and/or common areas, etc. that all use and must be maintained?

Kevin just reading your post and was wandering if you could e mail your attorneys name to me
at [email protected], my son has a similar probem and is looking for attorney. Would appreciate
it.

I am a bit confused. You are a homeowner in at least 2 HOA run developments and you purchased knowing this. Now, because of a loophole in the law, you have stopped following rules and stopped paying dues? Why have you done this? Just because you can?

geeze, I get sucked into these old threads all the time. I have to start looking at the dates!! :-)

I hate reading one and reading a comment that I agree with thinking to myself "I like the way this person thinks" only to then realize that person was me! Lol

And to answer that question about me buying into the neighborhoods, I actually inherited my homes BUT they were purchased specifically because either a HOA didn't exist or because it was voluntary. It wasn't until over a decade later both tried to force a conversion to mandatory. In the first neighborhood, the HOA was actually the HOA of a neighboring section. I didn't really find a loophole. The HOAs just neglected to follow state laws or their own governing documents.