Can there be 2 HOA's in 1 community

Started by JamesO6 • 27 replies • 2515 views

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JamesO6 (Florida)
Posts: 170

Posted:

Battled the original Property management company about an alleged being in a HOA. Long story short Original developer bought land and had about 5 builder company to build the Land made a HOA and recorded it, Deed restrictions on the 1st section documents prepared apparently had the wrong deed restriction on lot owners recorded documents. Developer apparently canceled the business license and sold the rest of the sections to a new developer and strictly only 1 builder them building the rest of the development. New developer then attempted to execute the HOA and hired a Management company and they sent out a copy of the HOA deed restriction and billings and was challenged by the 1st section as not being in it. They returned after reviewing the deed restrict issue and agreed we were not in it under their management and then had the 2nd developer, Record a 2nd deed restriction but executed it under a different name and only for the sections the new builder was currently building. just talking to the first management company they said it was a mess what the original developer did.

Now a decade later a new property management company is at it again, that HOA knows what went down before and we suspect something's up, since we should not been on their mailing list as a HOA member. other then voluntary asking the non HOA lot owners to join, which how their letter was worded it seems they tried that and got a uproar of emails and phone calls. what if any other way can they force a involuntary membership??? seems HOA laws have been changed lately in this state Ohio.

What legal recourse can the first section have against the HOA? since we went through this a decade ago and prevent this from happening again. and or where would they file a legal action in a municipal court or civil to try to force involuntary membership?? since they didn't do this 10 years ago I think they set a precedence, original HOA was abandoned and a new one formed for the new sections of the Community. doubt 2 HOA's can survive a legal challenge in the same development community of around 400 single family house structures. still have the first property management info the sent out and the letter stating we were not under their management company and the next day a new deed restriction was recorded not including section 1. been over 2 months now and the issue not resolved.

thanks.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

James

I am not nor do I play a lawyer.

Based on what you have said, it appears Development B (later development) is its own HOA, separate from Development A (original development). It also appears like Development A might well have/be its own HOA even if they have never done anything about it.

Are there any shared amenities, pools, roads, open areas, retention ponds, etc?

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By JamesO6 on 08/09/2014 12:05 AM
Battled the original Property management company about an alleged being in a HOA. Long story short Original developer bought land and had about 5 builder company to build the Land made a HOA and recorded it, Deed restrictions on the 1st section documents prepared apparently had the wrong deed restriction on lot owners recorded documents. Developer apparently canceled the business license and sold the rest of the sections to a new developer and strictly only 1 builder them building the rest of the development. New developer then attempted to execute the HOA and hired a Management company and they sent out a copy of the HOA deed restriction and billings and was challenged by the 1st section as not being in it. They returned after reviewing the deed restrict issue and agreed we were not in it under their management and then had the 2nd developer, Record a 2nd deed restriction but executed it under a different name and only for the sections the new builder was currently building. just talking to the first management company they said it was a mess what the original developer did.

Now a decade later a new property management company is at it again, that HOA knows what went down before and we suspect something's up, since we should not been on their mailing list as a HOA member. other then voluntary asking the non HOA lot owners to join, which how their letter was worded it seems they tried that and got a uproar of emails and phone calls. what if any other way can they force a involuntary membership??? seems HOA laws have been changed lately in this state Ohio.

What legal recourse can the first section have against the HOA? since we went through this a decade ago and prevent this from happening again. and or where would they file a legal action in a municipal court or civil to try to force involuntary membership?? since they didn't do this 10 years ago I think they set a precedence, original HOA was abandoned and a new one formed for the new sections of the Community. doubt 2 HOA's can survive a legal challenge in the same development community of around 400 single family house structures. still have the first property management info the sent out and the letter stating we were not under their management company and the next day a new deed restriction was recorded not including section 1. been over 2 months now and the issue not resolved.

thanks.

This is very similar to what happened in my neighborhood. One developer started the neighborhood. They would build a section and file C&Rs. They built a couple and then went out of business. A second developer stepped in and continued the process. Altogether there were 11 sections, each with their own C&Rs and each capable of creating their own HOA. 2 sections made a HOA while the rest did not. 1 of those HOAs tried to be the HOA for all other sections. They even went around trying to amend everyone's documents to grant them authority. It didn't end well. The HOA was left with just there section and some heft legal bills.

LarryB13 (Arizona)
Posts: 4,099

Posted:

James,

If you want to end the dispute instead of fighting it forever, you should consult an attorney who may recommend filing a quiet-title action.

Your chances of prevailing in a quiet title action are not all that good from what I understand from your message. I assume that the developer recorded a plat that included the lot you now own. I also assume that he recorded deed restrictions that applied to all lots within that plat. What I understood from your message is that when they recorded your deed the seller made reference to the recorded deed restrictions but cited the wrong book and page for the restrictions. If this is the case, a court would most likely find that this was a scrivner's error, meaning that the person who wrote the deed did not correctly memorialize the intent of the parties.

The problem is that the recorded deed restrictions apply to your lot regardless of what your deed does or does not state. If I were in your place, I would definitely seek advice from an attorney before going an farther in the dispute with the HOA.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By LarryB13 on 08/09/2014 7:19 AM
James,
The problem is that the recorded deed restrictions apply to your lot regardless of what your deed does or does not state. If I were in your place, I would definitely seek advice from an attorney before going an farther in the dispute with the HOA.

I don't know about that. For instance, in Florida there could be a plat on file but there must be specific mention of it in the deed. That is part of the dispute I am currently having - my deed makes no specific reference to the original covenants and the HOA is trying to enforce a different set of C&Rs that they filed and preserved that were never mentioned in my chain of title.

I suppose that you could argue that it was because of an error and a judge could rule that they have to apply.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Kevin,

What I wrote was that there should have been two things recorded prior to the sale of the lot: The recorded plat showing the lot and the recorded restrictions that would apply to all lots on the plat. If those were both recorded properly prior to sale of the lot, then the restrictions apply regardless of any errors on the deed.

A plat by itself does not establish deed restrictions and once a lot has been sold it cannot have deed restrictions applied retroactively. That is, if the lot was sold without any deed restrictions then no one except the lot owner may apply deed restrictions after the sale.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By LarryB13 on 08/09/2014 7:45 AM
Kevin,

What I wrote was that there should have been two things recorded prior to the sale of the lot: The recorded plat showing the lot and the recorded restrictions that would apply to all lots on the plat. If those were both recorded properly prior to sale of the lot, then the restrictions apply regardless of any errors on the deed.

A plat by itself does not establish deed restrictions and once a lot has been sold it cannot have deed restrictions applied retroactively. That is, if the lot was sold without any deed restrictions then no one except the lot owner may apply deed restrictions after the sale.

My understanding was different. For instance my property the plat and covenants were made in 1978. The deed was made in 1979. Those covenants would not apply unless that first deed states specific book or page. That is why on my property the timeframe for the c&rs start in 1979, but this may be Florida specific. So this individual may have had an error and it could definitely be argued that it was a mistake. A judge could order it fixed nut I think that until that ruling the c&rs are essentially non-existent for the properties with such an error.

KevinK7 (Florida)
Posts: 1,343

Posted:

As another example, my other neighborhood filed amended and restated covenants and restrictions with the county that listed every property and every original plat under their control despite never getting approval from those homeowners. Even though that document was filed and makes mention of those properties those new c&rs won't take effect because there was no reciprocal mention or corresponding document granting them supremacy.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Can you cite a legal authority for that? Case law or statute.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By KevinK7 on 08/09/2014 7:52 AM

For instance my property the plat and covenants were made in 1978. The deed was made in 1979. Those covenants would not apply unless that first deed states specific book or page. That is why on my property the timeframe for the c&rs start in 1979, but this may be Florida specific. So this individual may have had an error and it could definitely be argued that it was a mistake. A judge could order it fixed nut I think that until that ruling the c&rs are essentially non-existent for the properties with such an error.

If the restrictions were not stated on the deed then it does raise a legitimate question as to whether you purchased the property before or after the restrictions were recorded. If you purchased prior to the date the restrictions were recorded then they would not normally apply to your property. However, since you are in Florida, where anything goes, state law will govern.

JamesO6 (Florida)
Posts: 170

Posted:

Nothing shared, there is 2 retention ponds in the neighborhood, one maintained by that HOA, the other one is maintained by the lot owner next to it and me before they moved in and took care of mowing around it, It's not treated grows algae every year and is a eye soar for us fishers that can't fish in it due to the algae, the other pond is algae free maintained by the HOA. There is no community building, there is no pool, just a huge 2.5 acre field that next to a green space for wetlands and nothing can be built on it the 2.5 acres, which is maintained by section 1 lot owners for the last decade even, but recently turned over to the HOA but they still do not keep it cut, we've been doing it for the last 10 years to keep insects and animals and ticks away from our neighborhood. there is 2 entrances to the community ours is maintained by a neighbor and is paid by the city to mow it, the other entrance is maintained by the HOA.

JamesO6 (Florida)
Posts: 170

Posted:

whoops wrong response button posted a response below next response., there is a common road leading to their development through ours but the city patched it lately due to all the pot holes in it.

JamesO6 (Florida)
Posts: 170

Posted:

Shouldn't the 2nd deed restriction recorded mute the 1st one?? since A actual HOA was named in the 1st restriction as sect 1 part 1 and 2.and the developer got a business license and then canceled it, and then the 2nd developer got a new business license and Renamed a HOA and then recorded it for there sections. seems the first was formed and then abandoned.

JamesO6 (Florida)
Posts: 170

Posted:

Sorry, but the 2nd HOA doesn't name the HOA in it's billing it refers to the Community name only and owners after it. the other side of the billing is a letter to the HOA members also not stating the HOA name just the community it's called. So they're referring to the entire community not the HOA which they think all is under their HOA. So How can we form a HOA that was named in the deed restriction by Name usually a Normal deed restriction states, it is under a HOA, this one stated it by Name that was then canceled, but we legally can't form it due to the business license was canceled. Section 1 can not form under that Deed restriction now even if it tried due to it doesn't have a valid license, it was abandoned by the first developer. HOA's are contracts, there seems to be a serious legal breach of it and there for that's why the New developer executed a entirely New named HOA deed restriction and did not include section 1 in it. and after 10 years there still confused.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

James

What do you want to happen?

When you mention Phase 1 and Phase 2 are you saying this is how they were referred to in the original Covenants?

I know our Covenants makes mention of the Declarant having the right to add/modify. They did add a Section 2 with an update to the original Covenants.

JamesO6 (Florida)
Posts: 170

Posted:

Yes original deed restriction just names sect 1 phase 1 and phase 2 but that HOA business license was canceled and no longer valid., new deed restriction and new developer with a new HOA name says sect 2 phase 1 and 2 and then they amended the deed restrictions as they built the next section 3 and 4 phase 1 and 2 respectably each.

worst case scenario it looks here they need to get us too voluntary join which they know that's not goanna happen. they sent a letter stating something to the effect You have 30 days by Ohio laws to give the HOA all your 2 pages of personal data they want you to fill out or your in violation of the ORC of Ohio, and by joining them will make your community a better place. hence a threat and then asking you to join, from what I recall the new pandering's was.

I can no longer try to deal with them due to I was informed to cease and desist contacting them till they figure out that there next step is and wait for a letter. been down this road before but now they don't want to listen to the other sides opinion's and concerns. far as were concerned were getting illegal billings and harassment through the postal mail system claiming we owe money on a contract that doesn't exist.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

James

I do not believe you answered my question.

What do you (personally) want to happen?

JamesO6 (Florida)
Posts: 170

Posted:

Quote:

Posted By JohnC46 on 08/09/2014 3:20 PM
James

I do not believe you answered my question.

What do you (personally) want to happen?

Well to be left alone by the HOA business management and not go through this each time they hire a new property management business, Quiet-claim deeds doesn't give you legal protection.

Just went through the original deed restriction. has a clause that makes it stay alive for 30 years and then via 75% HOA vote to extend it for another 10 years. But they the original developer doesn't own the area any longer; it just built section 1 and recorded a deed and quite claimed it to the Original HOA and exited stage left, 2nd developer then finished the last 3 sections, Section 1, it was quite claimed deeded to section 1 HOA, that doesn't exists. There lies the problem, were in legal limbo have a HOA that was recorded but then canceled via the business side licensing. the new developer made up a new HOA for his sections it was building.

Doubt we can resurrect a canceled HOA that had a name on the Deed restriction, since the declarant canceled the business license it's not a valid contract any longer.

thought we were 40 lots, but actually only 31 lots in section 1. other 10 lots must be the common area and pond area.

Guess reading that over again, we could resurrect it and get 75% of the vote of the 31 lot owners and shut it down for good. But the business license for that HOA is no longer legal business and well that could open a new can of worms if we even try anything even for the good.

Now it's gets better, Our Original deed restriction says we could include any future development in the Community HOA. Yet they have there own HOA now. Seems were in our own little world a HOA that can't be a HOA.

LarryB13 (Arizona)
Posts: 4,099

Posted:

James,

Most HOA's are incorporated as non-profit corporations. When you stated that the "HOA business license was canceled and no longer valid" I think what you were trying to convey is that the state administratively revoked the HOA's authority to act as an incorporated entity.

This has very little effect on the provisions of your CC&R's. Any homeowner or group of homeowners may take it upon themselves to resurrect or reinstate the corporation. The only way to end an HOA is to amend the CC&R's so that it no longer exists.

Please accept the following as a bit of tough love instead of an insult: You have a great deal of difficulty explaining your situation and I assume that your level of education is somewhat below that of a Harvard Law Professor. You need good legal advice because the stakes are high. Find an attorney and take him a copy of the plat for your subdivision, the CC&R's, your deed, and all the correspondence from the other HOA and get his advice on what to do.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By LarryB13 on 08/09/2014 8:07 AM

Can you cite a legal authority for that? Case law or statute.

I believe this is where the Marketable Record Title Act falls into play:

712.03 Exceptions to marketability.—Such marketable record title shall not affect or extinguish the following rights:
(1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title; provided, however, that a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of subsection (5).

While this chapter discusses preservation, the closest mention in FL HOA statutes might be in the definitions section that describe a declaration of covenants:

4) “Declaration of covenants,” or “declaration,” means a recorded written instrument or instruments in the nature of covenants running with the land which subject the land comprising the community to the jurisdiction and control of an association or associations in which the owners of the parcels, or their association representatives, must be members.

This means that C&Rs are recorded documents that run with the land, with the land being part of the "community," or the platted properties that "is or will be subject" to the declaration of covenants.

I suppose the phrase "will be" implies that while the plat or C&Rs could already be recorded they only start being subject once the root of title is determined and mention of just which covenant and restriction the property would be subject to. This is reinforced by the wording in MRTA. Of course the HOA statute only applies if it is a mandatory association. If not, then I suppose MRTA would still apply. From my understanding, if a document is filed outside of the chain of title, as is not mentioned anywhere specifically, then it would not apply.

Again, this may be only applicable to Floridians who have these laws.

I would imagine the same could be argued for the OP's situation. It is not their fault that the developers screwed up on their official governing documents. I can understand what he is going through. I had to first deal with the old HOA board and their attorney, then the new HOA board and their new attorney, and then now the new HOA board and their new management company. I understand the desire of wanting to get out because I feel the same way. The HOA can't get their act together so I would rather go it alone.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By LarryB13 on 08/09/2014 4:34 PM
James,

Most HOA's are incorporated as non-profit corporations. When you stated that the "HOA business license was canceled and no longer valid" I think what you were trying to convey is that the state administratively revoked the HOA's authority to act as an incorporated entity.

This has very little effect on the provisions of your CC&R's. Any homeowner or group of homeowners may take it upon themselves to resurrect or reinstate the corporation. The only way to end an HOA is to amend the CC&R's so that it no longer exists.

Please accept the following as a bit of tough love instead of an insult: You have a great deal of difficulty explaining your situation and I assume that your level of education is somewhat below that of a Harvard Law Professor. You need good legal advice because the stakes are high. Find an attorney and take him a copy of the plat for your subdivision, the CC&R's, your deed, and all the correspondence from the other HOA and get his advice on what to do.

I agree. Get a lawyer involved. It sounds like the HOA doesn't want to listen, let alone negotiate. I also agree in bringing them all relevant documentation that you are capable of digging up. Better you spending your time to find it then paying an arm and a leg for an attorney to do the same simple searches.

JamesO6 (Florida)
Posts: 170

Posted:

Thanks, the last property management agreed with us last time 10 years ago as were not under their HOA management and then they created a new one up and left our section out of it. Don't know exactly why and don't care nobody in section 1 bothering about it, they just threw the papers out like junk mail.

It's that it seems until we decide to start a HOA up, which we have no plans on doing except maybe to resurrect it and then give it a burial. Our common area was maintained by the city, not by the HOA and the city pays a man in our section to mow and maintain our entrance way and pond to our section.

we'll just wait and let the lawyers once again review the documents let them have a meeting to listen to them, let the HOA start incurring huge legal fees before the real battle begins. and go from there. Since the developer quiet claimed deeded the section to our section 1 HOA. we own it and section 2,3 and 4 don't they have their own HOA. and let the president of the other HOA know this is goanna be a costly court battle for the HOA and their lot owners for just a fight over 31 houses.

Why give the opposing party documents that's just saves them time and money. been 2 months sure that HOA legal bills are racking up again, and may make them ponder if this action once again is worth the cost of it. every e-mail communication might cost them, sure did my wife's lawyer whenever he had to respond to them and charge her. wasn't the plan they did say please contact them for any concerns, that was till they seemed to get the picture of what the other Management company found 10 years ago too and then they abruptly changed their plans for communicating with them.

I may not be Harvard schooled, but very patient.

Probably making a mountain out of a mole hill with this, just wondering what legal recourse we have if they fail in this once again, other then save all documents and prepare for the next Property management company that takes over their HOA.\\Makes sense there are 2 HOA's in one community now, 2 different developers. and 2 different deed restrictions noth inclusive to their sections.

JamesO6 (Florida)
Posts: 170

Posted:

Unless someone can force us to start up the HOA in our section and then get us to merge with the other one in the community, seems our common area's are under the city management as in maintaining for mowing and the city is paying one of our lot owners money to maintain it. If the city thought it was a HOA, they sure wouldn't be maintaining it. some might make a issue of that and make that HOA back pay the city 10 years they paid out. Course that's not a threat I've already brought that up to check their books (HOA) Property management who's been cutting what and when and where.

seems we might be under one, but not under the other sections though. and nobody in our 31 lots have any intentions of starting one the deed restriction ends at it's 20th year and that's less then 4 years away, that's goanna be our first defense if it comes down to it. and then get a lawyer, will have everything ready to go and not talk to much to the lawyer and just says they said this and that and here's everything I can dig up for you. including all emails.

JamesO6 (Florida)
Posts: 170

Posted:

Last one I hope, just going over the recorders information that was recorded the 2nd developer quit claimed a deed to the sect 1 a huge field common area to our HOA name 5 months after forming theirs that has a different name.
so now we have the present developer quit claiming lots to our deed restrictions HOA Name. 9 years ago they did this.

would that help make a case? were a different HOA and their developer granted us a field we've been maintaining all along for the last 10 years?? I've heard about minor discrepancies but this is getting ridiculous.

At least they listened to us before about us maintaining that lot at least this might be start of another legal defense.

JamesO6 (Florida)
Posts: 170

Posted:

Okay I wished I read there sections HOA deed restrictions, I'd save a lot of stress and time worrying, here is what I just found out reading their sections Deed restriction in a more relaxed atmosphere.

Article 2 definitions: 2.18 Property.. All land described in this declaration. The Property does Not Include any land Within the (Edited name of My Community) Subdivision 1.

This is the new developer deed restriction from 2004. So their deed restriction and active HOA doesn't concern us and then it transferred the common areas in our section to our HOA name.

But confused how they we able to transfer the common area fields to us without informing us about the transfer.

Would it be advisable to find out whom in the neighborhood is the President and get a group of us to approach him/her to show them their own document and ask or demand they cease and desist this action once again?

Not a Harvard brain surgeon, But at times winning a argument has to be feeling like to be one for a change ;)

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By JamesO6 on 08/09/2014 11:46 PM
Okay I wished I read there sections HOA deed restrictions, I'd save a lot of stress and time worrying, here is what I just found out reading their sections Deed restriction in a more relaxed atmosphere.

Article 2 definitions: 2.18 Property.. All land described in this declaration. The Property does Not Include any land Within the (Edited name of My Community) Subdivision 1.

This is the new developer deed restriction from 2004. So their deed restriction and active HOA doesn't concern us and then it transferred the common areas in our section to our HOA name.

But confused how they we able to transfer the common area fields to us without informing us about the transfer.

Would it be advisable to find out whom in the neighborhood is the President and get a group of us to approach him/her to show them their own document and ask or demand they cease and desist this action once again?

Not a Harvard brain surgeon, But at times winning a argument has to be feeling like to be one for a change ;)

Interesting. So if I understand correctly, section 2 transferred property to section 1 but you dont have a HOA? Do you have any documents from 10 years ago from the HOA telling you they lacked authority.

This reminds me of my other neigjborhood a bit. Before the HOA changed their name and attempted to annex everyone they renamed their company dropping their "section" so they would appear to represent everyone. Very deceptive.

JamesO6 (Florida)
Posts: 170

Posted:

it might be we have a HOA, just we have not decided to activate it there is a recorded deed restriction just for section 1 phase 1 and 2. this new HOA and Previous property management knew we were taking care of it, and from what I can understand the original purchaser, stated these property belonged to this Section 1 HOA and was deeded that way. before they knew they were not going to complete this development they only finished the first section and another developer took the rest over.

We never knew about this deed restriction till just recently it was recorded in 1999, first house wasn't completed till around 2002, seemed before the first developer started construction, didn't add that into the lot buyers contracts, just recorded it and under a name, that's not Section's 2 ,3 and 4's name.

in a bind, I was told not to contact them again till they send us a letter, by that time who knows what there up too. their own Deed restriction states all land in section 1 is not under their HOA.

Seems to be one of these cases of a developer making up a HOA but never activates it.

as for lack of authority I have a letter from the previous HOA Property management company stating we were not under their HOA, so yes I do. that looked into this legally, they then made up their own via the builder and 5 months later transferred the common grounds to Our HOA, that's not activate yet. they only took 2 weeks this company's going on now 9 weeks into this. they used a word that concerned me, "Solidified" all party's will be notified.

Have a letter from the previous HOA Property Management company and now just really read their HOA deed restriction and saw that that Article II Property's, and according to it, all section 1 lands are not in this HOA.

JamesO6 (Florida)
Posts: 170

Posted:

Wait the lack of authority was to include us in their HOA the 2nd developer sections, 2,3 and 4. this is weird, on the auditors page in the maps went from the new developer, to the city then to our named HOA, all the common area's in section one that's only less then 3 acres, which we've maintained for the last 10 years anyways.

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