HOA is tring to usee a 21 year old vote that is made up to merge two phases

Started by DanH5 • 9 replies • 1789 views

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DanH5 (Florida)
Posts: 4

Posted:

Question # 1 can after 21 years and HOA use those votes to but something together and record it in the county, it this legal? I live in phase II of a subdivision and have paid fee to phase I from the time I moved in (2004). In September 2012 I found out phase II CC&R states that our phase of the subdivision HOA shale be called XXX phase II. I also got a copy of a letter from phase I attorney 1996 that stated the phases two were not under one HOA (phase I). It also said that there was no legal means to amend the CC&R or merge the two phases. So I hired a real estate attorney to find out. The attorney stated that I was not part of phase I HOA, and I was not under any HOA. The builder did not set up a phase II HOA board and there was no record of the merger. Phase I is telling phase II that the two phases or one because of a vote that took place in 1992. Phase I said that the vote was unanimous but they did not recorded it. Question #2 if phase I can is there anything phase II can do now to stop phase I from recording something?

Thanks! Dan

TimB4 (Tennessee)
Posts: 21,059

Posted:

Go back to your real estate attorney and see what your legal options are to challenge such an action.

The issue will likely boil down to two issues:

Is there any time limit between taking the vote and recording the deed restrictions?

Does the Association have to proof (ballots, etc.) that such a vote did take place and what that outcome was?

You have been paying assessments for over 7 years. Why? What document did you receive at closing that told you there was an HOA you were a mandatory member of?

DanH5 (Florida)
Posts: 4

Posted:

Thanks for the reply. I have a meeting next week with my attorney to ask just what you stated. As for proof, I’m not sure, they say they do but they have not sent out anything. What they did say is that they are working on something! But that sounds like working on B.S. either you do or you don’t. I talked to the residents that were here in 1992 and no one can remember anything about that vote. When I closed on the house I received a copy of phase I CC&R and did not know that I was in phase II until this issue came up.

KevinK7 (Florida)
Posts: 1,343

Posted:

I had something very familiar occur in my neighborhood. There were 12 sections and the HOA for Section 2 felt they were in charge of the other sections. They tried to amend the covenants of the surrounding sections by acquiring 51% of the homeowners approval over a period of a few years.

It is my understanding that your phase is HOA free. Depending on the language found in the documents you could possible choose to join this other HOA but I doubt you could be forced into membership simply from a vote (especially an old vote). I had language in my old C&Rs that "urged" homeowners to form a HoA. Some in one section did. That section allowed other section homeowners to join and understood that those other sections had different but similar C&Rs.

Because you mention that this HOA is trying to use a 21 year old vote I have a question. How old are both phases?

I ask because you and your attorney may also want to check to see if a notice of preservation was filed with the state in accordance with the Marketable Record Title Act (MRTA), which essentially forces your covenants and restrictions to expire after 30 years from the root of title. So if your phase is 30+ years old you would have zero covenants on your property. Same for the HOA's phase.

DanH5 (Florida)
Posts: 4

Posted:

This is great information, I’m glad I posted this thanks! Kevin I will make sure my attorney look into your suggestion. Phase I declaration was entered in 1988 and have not been updated. The wording is the duration of restriction shall be binding on the developer and all person claiming under the developer until Dec 31 2013. At which time the declaration shall be automatically extended for successive periods of 10 years unless vote of majority. Phase II declaration was entered in 1989 and has the same wording but phase II ended in Nov 22 1990. Unless it was extended evey ten years some how. So the way I think of this there was no HOA started by the developer, no HOA handed over to the owners, then the declaration of covenant and restriction was never binding or not after 1990.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By DanH5 on 04/30/2013 8:26 AM
This is great information, I’m glad I posted this thanks! Kevin I will make sure my attorney look into your suggestion. Phase I declaration was entered in 1988 and have not been updated. The wording is the duration of restriction shall be binding on the developer and all person claiming under the developer until Dec 31 2013. At which time the declaration shall be automatically extended for successive periods of 10 years unless vote of majority. Phase II declaration was entered in 1989 and has the same wording but phase II ended in Nov 22 1990. Unless it was extended evey ten years some how. So the way I think of this there was no HOA started by the developer, no HOA handed over to the owners, then the declaration of covenant and restriction was never binding or not after 1990.

I see two interpretations from what you post:

1) It would be my understanding that your Covenants and Restrictions are binding still even though there is no HOA for your phase. If A violation were to occur then it would be the responsibility of the individual homeowners to remedy the situation. The covenants would only renew themselves until 2018/2019 for the respective phases when the law would force the neighborhoods to either preserve their C&Rs or have them expire.

2) The covenants would remain binding until December 31, 2013. Because the covenants say the covenants would then be renewed for successive periods of 10 years, placing the date of expiration past the legal expiration under MRTA, that particular provision would then be deemed null and void causing them to expire in December.

KevinK7 (Florida)
Posts: 1,343

Posted:

I just reread what you wrote. Does that mean phase 1 will expire December 2013 and phase 2 November 1990 but will be renewed every 10 years afterwards? Does phase 2 have the same 10-year renewal language? If so then I would think it would have automatically renewed november 2000 and 2010.

DanH5 (Florida)
Posts: 4

Posted:

Kevin yes each phases I & II has the auto 10 year extension. So you are right at 2010 and will extend 2020. So even though there is no HOA for phase II the C&R are binding? Plus they are out of date as per the FL 720 codes. You stated the law would make the phase preserve or let them expire in 2018/2019. Who would have the right to say preserve or expire with no HOA? So from the sound of things phase I would have no legal way to take phase II over without a 51% vote from the current owners in phase II.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By DanH5 on 04/30/2013 2:25 PM
Kevin yes each phases I & II has the auto 10 year extension. So you are right at 2010 and will extend 2020. So even though there is no HOA for phase II the C&R are binding? Plus they are out of date as per the FL 720 codes. You stated the law would make the phase preserve or let them expire in 2018/2019. Who would have the right to say preserve or expire with no HOA? So from the sound of things phase I would have no legal way to take phase II over without a 51% vote from the current owners in phase II.

HOAs and C&Rs are different and you do not necessarily have to have one to have the other.

With that being said, I would still find it difficult for Phase I to take over Phase II with just a simple vote, especially if that vote is not clear.

Also, is this HOA a mandatory or voluntary association? It is also my understanding that in order for the association to be mandatory it would require 100% of the effected homeowners.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By DanH5 on 04/29/2013 8:36 AM
Question # 1 can after 21 years and HOA use those votes to but something together and record it in the county, it this legal? I live in phase II of a subdivision and have paid fee to phase I from the time I moved in (2004). In September 2012 I found out phase II CC&R states that our phase of the subdivision HOA shale be called XXX phase II. I also got a copy of a letter from phase I attorney 1996 that stated the phases two were not under one HOA (phase I). It also said that there was no legal means to amend the CC&R or merge the two phases. So I hired a real estate attorney to find out. The attorney stated that I was not part of phase I HOA, and I was not under any HOA. The builder did not set up a phase II HOA board and there was no record of the merger. Phase I is telling phase II that the two phases or one because of a vote that took place in 1992. Phase I said that the vote was unanimous but they did not recorded it. Question #2 if phase I can is there anything phase II can do now to stop phase I from recording something?

Thanks! Dan

Dan

After 7-8 yars of paying and maybe being happy with the arrangement, what is your issue?

Thanks

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