HOA questions

My family and I just moved into our new home and went to the annual HOA meeting. During this meeting it was the annual election period and well apparently when you are vocal you get voted into office. I am the new V.P. interim for 2014 and President for 2015.

The HOA was established 20-22 years ago (in phases as the subdivision was built in 4 phases). The covenants and bylaws are all the same but for each phase.
Over the years the HOA has gotten weaker and has less members in the voluntary HOA.

My questions that lawyers, county officers or original builder whom set up HOA can not or will not answer are:
1. To amend some sections the covenant states it must be approved by 90% of all homeowners (not members). However, problem exists in the current market that we currently have 25% renters (having trouble locating owners actual address even in county tax rolls) and have close 18-20% in foreclosure. This, has made it impossible to get 90% of home owners signatures. Are there loopholes or ways to amend with just a majority vote of HOA members beings it is a voluntary HOA?

2. How does an HOA go about trying to enforce the rules? Do we send warning letters that are dry threats, is there a court process, etc?

3. There is a community park that the HOA is responsible for. An attorney advised me that we needed liability coverage on this....of course. However, if somebody is injured on/in the park can the HOA officers and board be sued?

4. The covenants & bylaws are good for 20 years then automatically renew for successive periods of 10 years. An attorney told me that this will expire at the 30 year mark and that we will have to refile everything which makes no sense to me.

5. Suggestions of ideas for raising HOA membership participation is appreciated.

Thank you for your time, experience and knowledge.

GENERALLY:

Membership is appurtenant to and may not be separated from ownership.

IMO:

If 'voluntary' (which I actually doubt) then it would apply to owners who 'opted in'.

A renter or resident who does not own can not be a member.

Do you have deed restrictions? Read your deed to see.

What do your Covenants and Restrictions state?

John,

Yes, it is actually voluntary (i know...it is ridiculous). However, that is how it was set up 21 years ago. We are interested (members of HOA) in making it mandatory; however, again we need 90% of owner approval per the covenant and bylaws.

We do have restrictions. However, having a volunteer HOA a lot of things have not been enforced.

We live in Florida.

Right now we have to the best I can figure we only have about 30% owner participation in our voluntary HOA (brand new so trying to work with current officers & board to get records). Keep in mind the HOA annual fees are sooo low everyone should participate. ($50.00) This isn't even enough to take care of the community park or other community areas.

If we can make amendments with 90% of HOA members that would be great. However, the covenants say owners....not HOA members or participants

How do I confirm that the 90% approval stated in the recorded covenants is "If 'voluntary' (which I actually doubt) then it would apply to owners who 'opted in'."?

The subdivision was all seniors when created and is now still the majority. However, with the turning over, a younger, more free minded group is moving in. The HOA and I need to grab the bull by the horns so we do not have our properties depreciate, neighborhood get trashy, etc.

TY so much for your time and experience.

LeahG,
As a voluntary HOA needing 90% approval of homeowners to amend you appear to be SOL.

I am not knowledgeable on Florida statutes but suggest you consider the following:
1) Check to determine if there is a state statute which allows amending your Covenants with a lower percentage approval by homeowners; or if amending can be accomplished legally by going to Court.

2) Without sufficient funds you can not go to court to enforce violations. Your letters to violators can educate and try to convince them of their "civic duty". Good Luck on that!

3) Try to get a government entity to remove your responsibility for the community park. Until then try to get sufficient funds to pay for Liability insurance. Also, do not serve on the Board without D&O insurance!

4) I agree with you - it makes no sense. If your Covenants are not effective why renew?

5) To raise HOA membership (get funds in order to enforce Covenants) and become more than a social group you could try to provide low cost trash service to HOA members.

A voluntary HOA we manage combined the cost for voluntary HOA membership and voluntary trash service for HOA members. Their total cost is less than trash service alone by independent trash service. This required atleast 250 HOA members to elect trash service in order to get the cost low enough.

The original poster should take along patient look at the incredibly interesting topic here by GwenG FLA
"FL covenant expiration MRTA".

One should bear in mind that - without hands-on review of the documents mentioned at that topic - one hears only one side of the legals & factuals.

But the postings offer a micro-cosm of what is widely reported. Even judgments in my own, somewhat HOA-unfriendly, jurisdiction have brought forward difficult, expensive & long-duration struggles between refusenik-dissenters and competence-challenged neighbourhood watch type groups without a clue as to property or civil rights.

Against the rights-stompers I have no beef, but I just wish they would leave victims alone or themselves move to North Korea.

Tim

Thank you. I never considered trying to get a corporate sponsor for the park. I will discuss this with the HOA board during our next meeting this upcoming week. Great idea!

I and everyone, including attorneys have been taken-back by the voluntary HOA having a community park (actually deeded to the HOA)

Thank you again for the ideas

LeahG;

go to the 'register of deeds' at the county courthouse (or wherever the deeds are recorded) and get a certified copy of the Covenants and Restrictions ACTUALLY ON FILE

read them thoroughly ~ you may be surprised

repeat: get the actual documents for yourself, do NOT depend on anyone else's 'copies'

BEST OF LUCK

and

CAVEAT EMPTOR

LeahG: you would be very well served to acquire or to hire competent legal advice because several of your descriptions cannot be reconciled with what usually happens regardless of jurisdiction.

Centrally you have described what you call a "voluntary" HOA which you say is "unincorporated" but which you also claim "can take legal action" and which "is responsible for the (community)park". An unincorporated alleged entity serving individual owners does not have capacity to sue in its own name nor to own property, whether or not the individual members are exempted from compulsory membership & dues-paying.

If the "community park" is actually titled in a form of rudimentary co-ownership such as tenancy-in common( owned on title like mine by "Owner A plus Owner B . . ." 70 sets of owners ) etc instead of by the "XYZ Owners Association Inc." ) then the dispersal of civil liability after loss or harm likeliest follows what is called joint and several liability. There the victim winning judgement can pick and chose among the co-owner multiple individual/personal defendants whose assets to seize. Think which couple of people have deep pockets; let them pay me and chase their co-owners later for shared contribution.

Maybe no great need need to run other than to your own personal property insurer to immediately get a rider applying adequate liability protection outside the survey monumented boundaries which I think usually limits such coverage unless expressly extended.

But how much off-site liability coverage to get ? ? . . .

Some things to consider here.

1. While you have some concerns regarding achieving the supermajority to make some changes, I will state that you must be very careful in trying to find loopholes. My neighborhood was a voluntary association that required a supermajority to pass any changes. A small clique took over the board and wanted to convert the association to mandatory so they started to make very legally questionable alterations by collecting proxies and slowly changing the rules regarding quorom, how votes were cast, and then eventually total votes needed. They also made alterations to the C&Rs to block out anyone else giving the HOA more authority (again legally questionable).

You will want to review everything carefully but if the documents say 90% is needed, then 90% is needed and you need to try to conduct a very good campaign in order to achieve that number.

With that being said, there is something else to consider - converting from voluntary to mandatory is not that simple. You cannot get a majority (or in your case 90%) to agree to change your documents. There have been numerous rulings that basically state that in order to change from negative to positive covenants (you cannot do such-and-such rules vs. you must do such-and-such) you require 100% of the homeowners to agree. This was part of the issue in my neighborhood - the HOA acquired signatures of 51% of the homeowners over a period of a few years to change the C&Rs saying they were in charge. One homeowner challenged that assertion saying that their title was clouded due to his neighbors signing an instrument demanding he become liable to the corporation. By the HOA's logic, I could have teamed up with 1 other neighbor and started filing documents forcing other neighbors to be subject to my set of C&Rs, one by one. There were also questions of MRTA, which I will get to next.

"4. The covenants & bylaws are good for 20 years then automatically renew for successive periods of 10 years. An attorney told me that this will expire at the 30 year mark and that we will have to refile everything which makes no sense to me."

Florida is an interesting state. There are property records that date back hundreds of years all the way to Spanish colonial times. MRTA was established to simplify land transactions. Unfortunately for HOAs, this has an impact on their operations. Where the law makes sense.

For instance, my home was developed in an area that is now highly populated and in the center of everything (theme parks, convention centers,huge businesses and office complexes). There were restrictions placed on the property years ago that banned certain actions from taking place, such as building a wax museum on the property (go figure!). Then the land changed hands several times (especially during the creation of the residential neighborhood). That came with its own set of restrictions. Then some of the residents got together and wanted to change the covenants and they filed another set of documents (that only affected some of the homes). Then the HOA that was formed decided to file more documents based on their interpretation of which document was the legitimate one. After 30 years, researching the property required not only a lawyer but a historian. Luckily for my property, MRTA took effect erasing everything. Now my property is C&R free. Wthout MRTA my property would have decades and decades of restrictions piled up on it.

The HOA filed everything incorrectly and they were not happy about this but the law was quite specific because, like your neighborhood, they were voluntary but converted to mandatory using what they felt was a loophole around the law. The good thing for me is that the HOA is poorly run. The Board and their attorney make up the rules as they go along and threaten all who challenge them. I challenged them and it took me acquiring an attorney and pushing back to be left alone (sort of).

The thing you have to realize about MRTA is that when refiling you have to basically refile the former documents sans any rule that has been deemed illegal since (such as rules regarding solar devices, clothes lines, satellite dishes, etc.) and the new documents cannot be more restrictive. This means that when your documents expire you cannot decide to preserve them and make the neighborhood mandatory. You are stuck with your same old 90% super-majority HOA.

Basically, your only course of action to enforce is legal action. You cannot fine or assess homeowners who are not members (that would be a violation of Florida Statute 617, regarding corporations). You would have to take every violation to court and fight it to the end. You could pursue the matter by using mediation as well. One thing you cannot do is threaten legal action with no intention of doing so - it is my understanding that this would be illegal.