KevinK7 (Florida)
Posts: 1,343
Posts: 1,343
Posted:
If you aren't familiar with my posts, I am huge on covenant expiration and this probably stems from the fact that I have unfortunately dealt with 2 horrible HOAs with expired covenants and really uncooperative and unwilling boards. I have recently had some more issues with my second neighborhood that I thought I would share for some discussion.
It has been over two years since my attorney informed the HOA that their C&Rs expired, that they filed their paperwork late, and that they needed to leave me alone. After they ignored my legal representation and threatened me a second time with a lawsuit my attorney informed them again that they were in the wrong and they left me alone. Things have been pretty peaceful, apart from the constant calls to code enforcement, the theft of my yard signs, bags of excrement left in the middle of my driveway, and a recent letter from the new management company saying I was a nuisance and needed to get rid of my potted plants on my front porch. Oh yeah, they also stated that I needed to abide by the C&Rs.
I stand by my original assertion from 2 years ago that the covenants expired due to Florida's Marketable Record Title Act because the law is pretty straightforward and explicitly states that "No disability or lack of knowledge of any kind on the part of anyone shall delay the commencement of or suspend the running of said 30-year period," meaning the clock started ticking in 1979 and that they were too late. This didn't stop me from going through all my paperwork to see if I missed something and I found something extremely interesting.
Back in 2009 the HOA got a new lawyer and decided it was time to re-record the C&Rs because of MRTA. The problem is they didn't think to look at when the properties root of title began and while some were as early as April or May, 1979, they decided to start re-recording in September but the documents they decided to re-record were interesting. They didn't re-record the original C&Rs. They decided to re-record a slew of other documents, such as a release from the original covenants, a notice they filed stating they intended to enforce covenants, and some amendments - none of the things that the law was designed to reimpose. This is where the interesting part is - the HOA decided to "re-record so that their enforceability shall continue" the amendment that was deemed illegal in 1993 by the 11th Circuit Court of Appeals that dealt with discrimination when the HOA tried to change the minimum age of residency from 16 to 55.
That's right.
20 years ago they entered into a lengthy legal battle that involved violating the Fair Housing Amendments Act of 1988 and the laws of the State of Florida and it involved discrimination on the basis of race and familial status when they passed an amendment raising the minimum age from 16 to 55. A family with a baby girl (the court case is actually between the baby girl and the HOA) sued the HOA and won with damages close to half a million dollars (roughly $650,000 in 2014 dollars).
Apparently the HOA thought they should refile this covenant and assert their authority to enforce this illegal covenant. Ignoring the issues regarding MRTA, I thought this was really interesting. Not to mention the contents of the release from the original covenants that was filed too. This is why Florida HOA and real estate laws are so confusing. Not really the laws that are confusing but the fact that everyone else is either not willing to follow them knowing Florida law has no enforcement mechanism or that or that they just don't do the thorough research required when going over 30 years of information.
Just wanted to share this interesting find.
It has been over two years since my attorney informed the HOA that their C&Rs expired, that they filed their paperwork late, and that they needed to leave me alone. After they ignored my legal representation and threatened me a second time with a lawsuit my attorney informed them again that they were in the wrong and they left me alone. Things have been pretty peaceful, apart from the constant calls to code enforcement, the theft of my yard signs, bags of excrement left in the middle of my driveway, and a recent letter from the new management company saying I was a nuisance and needed to get rid of my potted plants on my front porch. Oh yeah, they also stated that I needed to abide by the C&Rs.
I stand by my original assertion from 2 years ago that the covenants expired due to Florida's Marketable Record Title Act because the law is pretty straightforward and explicitly states that "No disability or lack of knowledge of any kind on the part of anyone shall delay the commencement of or suspend the running of said 30-year period," meaning the clock started ticking in 1979 and that they were too late. This didn't stop me from going through all my paperwork to see if I missed something and I found something extremely interesting.
Back in 2009 the HOA got a new lawyer and decided it was time to re-record the C&Rs because of MRTA. The problem is they didn't think to look at when the properties root of title began and while some were as early as April or May, 1979, they decided to start re-recording in September but the documents they decided to re-record were interesting. They didn't re-record the original C&Rs. They decided to re-record a slew of other documents, such as a release from the original covenants, a notice they filed stating they intended to enforce covenants, and some amendments - none of the things that the law was designed to reimpose. This is where the interesting part is - the HOA decided to "re-record so that their enforceability shall continue" the amendment that was deemed illegal in 1993 by the 11th Circuit Court of Appeals that dealt with discrimination when the HOA tried to change the minimum age of residency from 16 to 55.
That's right.
20 years ago they entered into a lengthy legal battle that involved violating the Fair Housing Amendments Act of 1988 and the laws of the State of Florida and it involved discrimination on the basis of race and familial status when they passed an amendment raising the minimum age from 16 to 55. A family with a baby girl (the court case is actually between the baby girl and the HOA) sued the HOA and won with damages close to half a million dollars (roughly $650,000 in 2014 dollars).
Apparently the HOA thought they should refile this covenant and assert their authority to enforce this illegal covenant. Ignoring the issues regarding MRTA, I thought this was really interesting. Not to mention the contents of the release from the original covenants that was filed too. This is why Florida HOA and real estate laws are so confusing. Not really the laws that are confusing but the fact that everyone else is either not willing to follow them knowing Florida law has no enforcement mechanism or that or that they just don't do the thorough research required when going over 30 years of information.
Just wanted to share this interesting find.