Declarant vs. Manager of HOA

The Declarant of our HOA partially assigned Declarant's rights to a new builder.

The word "Partial" in the title of the recorded document implies to me that the new builder only has some of the Declarant' rights, not all, and a numbered paragraph in the "Partial Assignment of Declarant's Rights" seems to bear that out.

Here's the numbered paragraph:

2. As of the effective date, Assignor hereby assigns and the Assignee hereby accepts the rights and privileges of Declarant under the Declaration as set forth in Article IV, Sections 3 and 4 of the Declaration, and the rights,
privileges and easements of Declarant under the Declaration as may be reasonably necessary to facilitate Assignee's sale of lots and improvements thereon including, but not limited to, the maintenance of a sales office and model home, the showing of lots, the display of signs, and the right to construct or place sales and construction offices of a temporary nature on the lots. Assignee shall not have any other Declarant rights, and
Assignee shall not assume any duties, obligations and responsibilities of Declarant, except those related to the foregoing rights and privileges of Declarant.

If only some of a Declarant's rights are assigned to the new builder, doesn't that imply the original Declarant is still THE Declarant even if he no longer "manages" the HOA?

When I asked the original Declarant is he's still THE Declarant, he doesn't say "yes" or "no." He simply says he no longer manages the HOA, and that I should direct my question to either the company that now manages of our HOA or the new builder.

If our original Declarant no longer manages our HOA, does that also mean that our original Declarant is no longer the Declarant? And if that is true, why the use of the word "Partial" in the document titled "Partial Assignment of Declarant's Rights"?

In our CCR, the Declarant can amend the CCR (and most important to existing home owners, the restrictions in the CCR) all by himself.

Did the "Partial Assignment of Declarant's Rights" give the new builder the ability to amend, modify and/or vacate any or all of the restrictions in our CCR?

From what I'm able to decipher from paragraph #2 in the "Partial Assignment of Declarant's Right," I think the answer is "NO!"

Do you agree?

Here's what I'm most concerned about. One of our restrictions (in our CCR of record) states residences must be a minimum of 2,000 square feet of living space ON THE GROUND FLOOR.

Either deliberately or out of ignorance of our restrictions, the new builder started building two(2) 2-story residenceS whose ground floors are both less than 1,250 square feet. We (some of the existing home owners in our subdivision) brought this violation of our HOA's restricitons to the attention of the builder's representative (on the BOD), and since then (2 weeks ago) not much has happened to the 2-story houses.

BUT ... we are concerned some way, some how, the builder will finish what he has started, and we don't want that!

As Larry said, you may have to consult with an attorney who will have access to your governing documents, to see what your legal options are.

No argument there. In this case, as Larry and I pointed out, the issue will be the language in your governing documents (not just the CC&Rs but the Articles of Incorporation and perhaps the Bylaws. Additionally, the applicable HOA, corporate, contract and other statutes.

Since it has been two weeks since you brought the issue forward to your Board, I would expect that the Builder is checking with their attorney. Therefore, you may not have time to study everything that you need to study.

One legal option would be for you, as a member of the Association, to seek a court injunction to stop those houses from being built and/or sold until plans are in compliance with the CC&Rs. This would likely require representation on your behalf by an attorney. Basically, you would be enforcing the covenants rather than relying (and hoping) someone else (the builder controlled Board) will do this for you.

Recently, very reenty, I tried to get ALL of our HOA's "governing documents" from our original Declarant. He replied by saying he no longer manages our HOA. He referred me to the management company that is managing our HOA for any or all of our HOA's "governing documents."

I contacted the management company and asked them for copies of ALL "governing documents" not recorded on our County's CLERK OF THE COURT website because I have what's recorded. The management company responded by saying they have what I have, and as I told the management company, I only have the Declaration(CCR), Amendment I to the CCR and the Partial Assignment of Declarant's Right.

The management company's reply seemed evasive just as the replies I've been getting from the original Declarant have seemed evasive.

I asked the management company a second time for all "governing documents." My second request has gone unanswered.

Something smells in Denmark!

Where do I find the Articles of Incorporation and where do I find the bylaws, if a bylaws document even exists for our HOA?

And thank you for your continuing responses.

JoK2,

And the 2,000 square foot minimum of living space ON THE GROUND FLOOR is in the RECORDED CCR.

If that's the case, I would personally seek out an attorney to file an injunction to prevent the homes from being constructed. I would NOT wait for the self-interested builder's attorney to give a response.

Ok, great, if those are the recorded docs, then as Dave said, seek an attorney to get an injunction. That seems to be the only recourse you have. It's a clear violation and although we've gone back and forth on this site as to HOA and the value of a home, I see the sizes of the homes having a direct impact on the value of your home, but I am not a professional in those areas.

Good luck!

Now you can make an informed decision on if this issue is worth the time, energy and expense to you to fight. You can still encourage the Board to fight on behalf of the members, however, that may or may not actually happen.

The choice is now yours to make.

Steve,

You wrote, "I hear what your saying, and I can see how you would feel that way, but I'm not familiar with a single court case that backs up what your saying."

How many court cases are you familiar with?

The builder is building six(6) houses simultaneously, all adjacent to or across the street from one another. Three(3) are 1-stories that meet or exceed our HOA's restrictions, and three(3) are 2-stories. The GROUND FLOOR square footage of all the 2-story houses is well-below the minimum square footage restriction in our HOA's restrictions, and when you factor in the fact the lots the 2-story houses are being built on could easily accommodate 1- or 2-story houses whose ground floor square footage would meet or exceed our HOA's restrictions, how is it "reasonably necessary" for the builder to be doing what he is doing?

Remember, the builder was only PARTIALLY Assigned Declarant's rights, not all.

I'm NOT concerned about the three(3) 1-story houses the builder is building that meet or exceed our HOA's minimum square footage. How could I be? BUT ... the 2-story houses are a different matter altogether! Anyone who would pay what the builder is asking for these 2-story houses would be doing so ONLY because they can finance all but $1,000 of the purchase price of the house. That's the draw, along with the fact the house would be in a subdivision with MUCH NICER homes in it!

I'm reminded of the question "What are the three most important factors when it comes to buying real estate?" The three are location, Location and Location! The existing homeowners would be on the short end of that stick!

We're in a "Gated Community." There's not another within several miles of us.

I'd like everyone who has contributed to this HOATalk topic to read another HOATalk topic entitled "Covenants and the courts.

The "covenants and the courts" topic immediately above this one in the list of topics.

First, the "project" is not that big of a project. The builder bought the last 14 of 27 lots in our small subdivision.

Second, work on all three(3) 2-story houses that are below the minimum square footage has stopped, so something is in the wind. One of the 2-story houses is fairly well along. The other two have not gone beyond the first floor. They're shells! Nothing has happened to any of the three for about 2+ weeks.

Third, I think they know they've stepped in it, and I'm guessing they stepped in it out of ignorance of our HOA's specific minimum square footage restriction. Somebody who is supposed to make sure the houses they build abide by the CCRs of a HOA screwed up. That's what I think. I don't know.

Fourth, As I understand it (See another discussion topic "Covenants and the courts"), clear and unambiguous restrictions are enforced by the courts. The minimum square footage restriction in our HOA's CCR is clear and unambiguous. And the lots on which the 2-story houses are being built on can easily accommodate a house that meets or exceeds the minimum restriction in our HOA's CCR.

Fifth, you wrote "I hope all that read this realize that if you buy into a not completed association, the rules can change." Well, the Partial Assignment of Declarant's Rights (a recorded document) is just that, a PARTIAL assignment. Only those Declarant rights assigned to the builder are his to control. Any rights not assigned to the builder are not his to amend, modify or vacate, at least, that's how I read it. The builder can do what is "reasonably necessary" to facilitate the sale of lots, and I beleive that does NOT include the lowering of standards (restrictions) in our subdivision. As I said in four above, see another discussion topic "Covenants and the courts."

Henry,

I believe that you and Steve are making different points.

You specifically stated that "what the builder is building will have an adverse affect on the value and marketability of the existing homes."

Steve, and John, pointed out that the value, expecting that you are referring to the market value of your property is based on appraisals. Using the Uniform Residential Appraisal Report, from fanniemae, you will see that the market value of your home is indeed based on comparable sales.

You cite FL 720.3075, which may support the "marketability" angle of your concern.

Yes, marketability can affect a home's value. However, having a home or two that has a lower square footage on it's main floor than other homes in the same development (which is your concern), hasn't had any documented proof of decreasing a homes value.

Mind you, I believe everyone agrees with you that building those homes are in violation of your CC&Rs. You took the time and expense of obtaining a legal opinion saying the same thing. You pointed this out to your Associations Board and, based on your statement that work has stopped on those houses, it appears that Board brought this up with the developer.

Realistically, I doubt that those homes will be torn down. However, perhaps a compromise can be met that allows the homes to have a room or two added on that will allow it to meet the minimal square footage. For this to happen, the existing blueprints of the home will need to be redrawn and resubmitted for building permits (which the city and county may or may not approve). Perhaps you can make this suggested compromise to the Board and/or Builder.

Well, if you're not ok with it, you will likely need to take legal action.

I'm okay with the 'shells' remaining for months.

A young couple came by a little while ago wanting to know what we knew about the house (very nice house) next door to us that's in foreclosure. The six(6) houses being built by our new builder came up, and she was the first to say "Those 2-story houses are small. They don't look like anything in the neighborhood." She was dead on right! It's OBVIOUS to the most casual observer.

The title of the "Partial Assignment of Declarant's Rights" clearly has the word "Partial" in it.

To me, a lay person, "Partial" means "some."

If only "some" of a Declarant's rights are assigned, that implies to me the orignal Declarant is someway, somehow, still in the loop. Having said that, I've recently read our CCR's Article I Definitions, Section 7, defines Declarant as follows:

"Declarant shall mean and refer to X(X being the original developer's name) and joined by Y (the original builder's name), as to Lot 1, their successors and assigns if such successors or assigns should acquire more than a majority of the remaining undeveloped lots owned by the Declarant for the purpose of development."

So, maybe it depends on which came first,

1) the sale of a majority of the undeveloped lots in the subdivision by the assignor (original developer/Declarant) to the assignee (the new builder)

or

2) the "Partial Assignement of Declarant's Rights" by the assignor to the assignee.

Keep in mind, the two times I very specifically asked the original Declarant if he was STILL the Declarant, he replied with basically, "I no longer manage the HOA."

"Manage"?

Manage ... smanage!

Hence, my "discusiion" item on HOATALK.

A simple "Yes" or "No" to my interrogatory would have put an end to my communications with the original Declarant. And if he wanted to be more helful, the original Declarant could have referenced the above mentioned DEFINITION with his simple "Yes" or "No" response.

But, noooooo, he didn't/wouldn't do that!

Why not?

His response certainly made me wonder WHY he would NOT provide a simple "Yes" or "No" answer.

Put yourself in MY place, and the place of every other homeowner in my/our subdivision who is witnessing, firthand, the degradation of my/our community. It AIN'T pleasant!

And now that I've learned something from some of the HOATalk respondents, AND consulted with a lawyer (a stranger), AND spoken several times with my brother who is a lawyer, AND, as a result, am now privy to actual Florida case law with my brother's help, AND read Florida Statute Chapter 720 Homeowners Assiciation (I'm no expert of its content), I am OF THE OPINION the new builder doesn't have a legal leg to stand on.

Our HOA's BOD is run by our new builder's people. But, the BOD has a fiduciary and legal responsbility to make sure ANYONE who does ANYTHING in our subdivision does IT according to HOYLE, namely, our HOA's CCR.

I've been told further along the builder goes with his TRACT-LIKE 2-story houses, the more difficult it will be to get the new builder to TEAR DOWN THOSE "TRACT-LIKE" HOUSES and start over!

Not to beat a dead horse to death, but the 2-story houses ARE (emphatically) akin to TRACT homes and substantially degrade the general plan of our cummunity, and, I've learned, doing so is against Florida PUBLIC POLICY and Florida case law.

With the help of my brother, I and a few other homeowners are going to file a lawsuit. If we don't, what is stopping the new builder from building more TRACT-LIKE homes on the remaining undeveloped lots. The answer is NOTHING! And if THAT happens, there goes the neighborhood!

Early this morning, the builder resumed work on two of the three houses that violate our restrictions. Any homeowner who saw the work had resumed got all riled up. I heard from one before I saw firsthand that work had resumed.

Immediately, I called my lawyer brother. At his request, I started emailing to him anything and everything he needed to file a lawsuit against both the BOD and the builder. Things like names and addresses, fax numbers, lot information, etc. I felt like I was racing against time!

For a few of hours I was hurrying around getting what was needed and firing it off to my brother.

Then, around noon, I got the LATEST from a homeowner who had received the LATEST from the VP of our BOD. She forwarded the VP's email to me.

The builder is going to ADD square footage to the living space on the ground floor on two of the three 2-story houses. The additional square footage will make the living space on the ground floor of each a little over 2,000 square feet. That met our "minimum" restriction. Obviously, that was good news!

As far as the third 2-story house goes, the rep was asking the homeowners to allow the builder to go forward with their current plan. We're told the current plan has around 1,800 square feet of living space on the ground floor. That was a surprise to me. The third house appeared to be every bit as small as the house immediately next to it, one of the two the builder is going to add to.

We're leaning towards agreeing to what the builder, via the VP of our HOA's BOD, is asking AS LONG AS homes on the builder's remaining undeveloped lots adhere to our HOA's CCRs. We do NOT want to go through this battle a second time!

But we, the existing homeowners, have not yet made a decision on the rep's request. The builder's rep does NOT need an answer ASAP.

Our lawyer, my brother, is saying we need to know beforehand what's going on the remaining undeveloped lots. We should KNOW what the BOD knows not long after the BOD knows it. We agree.

I'm relieved but, as they say, the proof is in the pudding, so we're still on guard!