developer transfer rights denied?

Our hoa tried to sue a resident over a driveway and the case was dismissed because
"the purported assignment of the developer's right to enforce the current deed restrictions running with the property owned by the defendents is ineffective because that assignment was executed by a dissolved corporation"
this is the second part that confuses me
" Accordingly, defendants argue that plaintiff association ( Happy Hills unit 1) has no standing to enforce the restrictions where the second ammended complaint contains no allegation that the association is the owner of the property in the community known as Happy Hills unit 1.

Any legal minds have a explanation?

thanks Roger, I am guessing the assingment was the developer transfering the rights to enforce the deed restrictions to the hoa. I will certainly keep everyone updated on how this plays out. As far as a good attorney, I am not sure how one knows. The attorney my hoa has is suppose to be 'the best in the state' but the same attorney just lost a recall case that cost I would guess tens of thousands of dollars in fees over a recall. We have a great site here in Fl called cyber citizens for justice or ccfj.net Amazing stories there
http://www.ccfj.net/condorecallmess.html Its amazing to me how attorneys have this holy grail that if they say it, it must be true. I am not anti attorney but I have the realistic attitude that every time attorneys go to trial, 1/2 of them lose because their wrong.

Lance, perhaps it is different in your state but in Colorado the Developer creates the association when the Declaration is filed. And most incorporate the HOA. The incorporated HOA exist during and after the Developer's control. The only difference is who serves on the Board and who controls the ACC. Control of the Board is often phased into homeowner control while ACC control is usually maintained by the Developer until most units are sold.

I that somewhere that processing of paperwork may have been messed up and it could have been by the Developer. The homeowner's Board probably initiated the suit. But without more info, like the HOA attorney, we don't have a clue.

Linda, Roger Larry, thanks so much for your thought, Heres some more info. Our HOA is in Fl, and I don't know if this went to mediation because it was in 1997 and I don't think mediation was required then. Info about our HOA, it was formed in 1976 by the developer and ammendments were done by the developer up until 1990, so it appears the developer gave up control before 1990 ( maybe because he sold enough lots by that date). The lawsuit was file by our hoa in 1997. Any of you can go to pascoclerk.gov and do a records search (its free) and see the 1 page dismissal, just search edward and janet bishop and you can find it there. In Fl, does the developer have to transfer or assign the rights for a hoa? Also, I think Larry asked...no we the association never had a vote to sue, the BOD just did it and it cost us 8k. What makes our community so different is that it has taken 30 years to build out 80 of the 91 lots, our lots range from 2 to 35 acres and as you can imagine our house styles and sizes are very different ranging from 1800 sq ft to 8k sq ft. Over the years the bod has selectivly enforced restrictions, ignored many and approved things that are in direct conflict with our restrictions. Hopping for more comments.

MichaleB2--- This is from State of Florida Statute...Also go read chapter 712 and see how that applies to your HOA...Before 2004 the HOA had to comply with Chapter 617 as referenced in the history of the statments below...happy reading and happy trails LOL LindaC

720.307 Transition of association control in a community.--With respect to homeowners' associations:

(1) Members other than the developer are entitled to elect at least a majority of the members of the board of directors of the homeowners' association when the earlier of the following events occurs:

(a) Three months after 90 percent of the parcels in all phases of the community that will ultimately be operated by the homeowners' association have been conveyed to members; or

(b) Such other percentage of the parcels has been conveyed to members, or such other date or event has occurred, as is set forth in the governing documents in order to comply with the requirements of any governmentally chartered entity with regard to the mortgage financing of parcels.

For purposes of this section, the term "members other than the developer" shall not include builders, contractors, or others who purchase a parcel for the purpose of constructing improvements thereon for resale.

(2) The developer is entitled to elect at least one member of the board of directors of the homeowners' association as long as the developer holds for sale in the ordinary course of business at least 5 percent of the parcels in all phases of the community. After the developer relinquishes control of the homeowners' association, the developer may exercise the right to vote any developer-owned voting interests in the same manner as any other member, except for purposes of reacquiring control of the homeowners' association or selecting the majority of the members of the board of directors.

(3) At the time the members are entitled to elect at least a majority of the board of directors of the homeowners' association, the developer shall, at the developer's expense, within no more than 90 days deliver the following documents to the board:

(a) All deeds to common property owned by the association.

(b) The original of the association's declarations of covenants and restrictions.

(c) A certified copy of the articles of incorporation of the association.

(d) A copy of the bylaws.

(e) The minute books, including all minutes.

(f) The books and records of the association.

(g) Policies, rules, and regulations, if any, which have been adopted.

(h) Resignations of directors who are required to resign because the developer is required to relinquish control of the association.

(i) The financial records of the association from the date of incorporation through the date of turnover.

(j) All association funds and control thereof.

(k) All tangible property of the association.

(l) A copy of all contracts which may be in force with the association as one of the parties.

(m) A list of the names and addresses and telephone numbers of all contractors, subcontractors, or others in the current employ of the association.

(n) Any and all insurance policies in effect.

(o) Any permits issued to the association by governmental entities.

(p) Any and all warranties in effect.

(q) A roster of current homeowners and their addresses and telephone numbers and section and lot numbers.

(r) Employment and service contracts in effect.

(s) All other contracts in effect to which the association is a party.

(4) This section does not apply to a homeowners' association in existence on the effective date of this act, or to a homeowners' association, no matter when created, if such association is created in a community that is included in an effective development-of-regional-impact development order as of the effective date of this act, together with any approved modifications thereof.

History.--s. 57, ch. 95-274; s. 2, ch. 98-261; s. 48, ch. 2000-258.

Note.--Former s. 617.307.

720.3075 Prohibited clauses in association documents.--

(1) It is declared that the public policy of this state prohibits the inclusion or enforcement of certain types of clauses in homeowners' association documents, including declaration of covenants, articles of incorporation, bylaws, or any other document of the association which binds members of the association, which either have the effect of or provide that:

(a) A developer has the unilateral ability and right to make changes to the homeowners' association documents after the transition of homeowners' association control in a community from the developer to the nondeveloper members, as set forth in s. 720.307, has occurred.

(b) A homeowners' association is prohibited or restricted from filing a lawsuit against the developer, or the homeowners' association is otherwise effectively prohibited or restricted from bringing a lawsuit against the developer.

(c) After the transition of homeowners' association control in a community from the developer to the nondeveloper members, as set forth in s. 720.307, has occurred, a developer is entitled to cast votes in an amount that exceeds one vote per residential lot.

Such clauses are declared null and void as against the public policy of this state.

(2) The public policy described in subsection (1) prohibits the inclusion or enforcement of such clauses created on or after the effective date of s. 3, chapter 98-261, Laws of Florida.

1(3) Homeowners' association documents, including declarations of covenants, articles of incorporation, or bylaws, may not preclude the display of one portable, removable United States flag by property owners. However, the flag must be displayed in a respectful manner, consistent with Title 36 U.S.C. chapter 10.

(4) Homeowners' association documents, including declarations of covenants, articles of