CCRs - HOATalk Forum

MbS (Florida)
Posts: 7

Posted:

My HOA, located in Palm Beach County, Florida, has left over 2 dozen homes out of the HOA CCR documents. Several of those left out of the documents sought legal counsel and were advised not to pay their maintenance until they were reinstated in the HOA. The board president reinstated all homeowners except those that sought legal advice. All homeowners omitted from the CCR documents were unaware of their non-membership in the association and continued for years to pay maintenance which includes homeowner's insurance but they were not insured.

We've been very fortunate not to have any hurricanes during this lack of coverage for those not included in the documents.

The omission of over 2 dozen homes in the CCRs was discovered by the Treasurer in 2007 and she sought to have the homes re-admitted into the association but was told by the president that it was too expensive to redraw the documents and to not tell anyone about the error; she resigned as Treasurer shortly thereafter.

Since all but those seeking legal help for their non-inclusion in the CCR were left out when the documents were redrawn, what can be done to get these homes back in the HOA documents?

It looks like over 2 dozen homeowners were paying maintenance for years without receiving the paid for benefit of homeowner's insurance and were never told they(and their property) were not included in the HOA documents or covered by insurance even though they were paying for coverage via their quarterly maintenance. I think this is fraud, perhaps grand theft.

An attorney for the association is seeking to collect back maintenance from a recently deceased person's estate; she led the fight to try and get the homeowners reinstated in the HOA. No other non-members have been contacted, nor have they received a demand for back maintenance.

Can someone help sort this out?

Thank you so much.

GenoS (Florida)
Posts: 4,276

Posted:

How old is the HOA? All the ones I've looked at in Florida are like this: the Plat of the association/subdivision/development is recorded with the county and it shows and describes every lot which will be encumbered forevermore by an association. Right on the Plat is a reference to other recorded documents where you find the association's governing documents. Every deed, from that point forward, contains language saying "subject to such and such covenants and restrictions recorded in such and such a place".

I don't understand how homes could be "left out" of the CCR documents. I suppose the CCRs could call out legal parcel descriptions that individually describe each lot. I suggest you start by searching for the original Plat of the area and any re-plats that may have been done along the way. Also check into the original CCRs and any and all amendments that have been filed since day 1. How were these homes "left out"? Was there an amendment that mistakenly left them off the list? Did they used to be in the HOA and now they're not somehow?

MbS (Florida)
Posts: 7

Posted:

Thank you for the advice.

Yes, these homes used to be in the HOA. The documents were recently updated again and the 4 or 5 people that sought legal help were left out of the documents while the 2 dozen others were put back into the CCR descriptions. Legal counsel told the 5 that sought to be included in HOA membership that they need not pay maintenance until they were put back in the documents. Those individuals have asked the board repeatedly to put them back into the documents since selling or renting their homes would be impossible if they are not a member of the HOA.

A board member wrote to one of those seeking to be included in the HOA again that her home loan would be affected, that she had better get homeowners insurance that her vote in a recent election did not count because she was not a member of the HOA. I have seen the letter and was shocked that a board member would say these things. I am confused as to why the HOA Board did not put all the homes back into the documents and why those homeowners in particular were not included. It's not like an entire street was excluded as in a scrivener's error; the properties not in the association are randomly scattered throughout the development.

The HOA is at least 30 years old.

"I suppose the CCRs could call out legal parcel descriptions that individually describe each lot." Perhaps this is true; not sure.

In any case, those not in the documents cannot vote and are not covered by insurance according to the HOA Board. I've never heard of anything like this and am truly baffled as to how it can be fixed.

Thanks.

Best regards.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Sounds like a question for a local attorney versed in property law.

My understanding is that in order to impose deed restrictions after the fact, all parties must agree. In this case, it would be the membership of the Association (as an amendment to their CC&Rs would need to be made) and the owners of the lots currently not included.

Based on what you provided, it's highly possible that the Association improperly included those into the Association the first time it was done and an owner or group of owners could challenge their inclusion without their permission.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By MbS on 06/22/2015 12:52 PM
Yes, these homes used to be in the HOA. The documents were recently updated again and the 4 or 5 people that sought legal help were left out of the documents while the 2 dozen others were put back into the CCR descriptions.

What are the details of, "the documents were recently updated again"? Is this a MRTA issue where the covenants were extinguished? If so, then it's not simply a matter of the board being willing to "put back in the documents" the units (or parcels or lots) that have had their CCR covenants expire.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By MbS on 06/22/2015 12:52 PM
In any case, those not in the documents cannot vote and are not covered by insurance according to the HOA Board. I've never heard of anything like this and am truly baffled as to how it can be fixed.

If they are not a member, they do not have to pay assessments.

You say that single family homes were left out but then talk about the HOA's insurance covering them. That doesn't make sense to me.

Typically only condominiums would have the Association insurance be applicable to someone's property.

I also don't understand how not belonging to an Association would make it harder to sell a home.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By TimB4 on 06/22/2015 1:59 PM
If they are not a member, they do not have to pay assessments.

You say that single family homes were left out but then talk about the HOA's insurance covering them. That doesn't make sense to me.

Typically only condominiums would have the Association insurance be applicable to someone's property.

I also don't understand how not belonging to an Association would make it harder to sell a home.

It's unusual, Tim, but not unheard of for an HOA to carry a master insurance policy that covers not only the common property, but some of the individual units' structure as well. My own HOA does this. The individual residences' exteriors and roofs are covered under the HOA master policy and homeowners only need condo-style walls-in coverage. Yes, typically that only happens in a condo association, but some situations are atypical.

As for being out of the HOA making it difficult to sell, I can see where this could easily happen if a unit owner lost access to amenities. Can't use the pool. Can't use the golf course. Can't use the polo grounds. Etc.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

What I find interesting and question is how randomly located homes were left out. It is not like a scribe error where one street was forgotten.

It reeks of selective enforcement/inclusion.

GenoS (Florida)
Posts: 4,276

Posted:

It does sound like there was some sort of vindictiveness or revenge going on but there's not enough information. A Secretary in 2007 noticed the problem but was advised to keep quiet about it? How long, at that point, had the error existed? And it was just recently rectified 8 years later with the exception of 5 owners who were deemed to be troublemakers? If the owners being left out in the cold now have a lawyer, my advice would be to FIRE THAT LAWYER TODAY and hire one who knows what he's doing ASAP.

This may or may not be applicable, but a recent Florida case decided last year (and appealed so it's precedent-setting) has significant implications for boards who ignore MRTA. An HOA board in Palm Beach County knew MRTA deadlines were approaching and refused to do what was necessary to preserve their covenants ahead of time. An owner sued to force the board to take action. She won. The HOA appealed, and she won again. The 4th District Court of Appeal found that the declaration obligated the board to preserve the nature of that particular HOA and ordered them to do it. Depending on the wording in the OP's CCRs, this might be similar if the board is obligated to preserve under MRTA and lets a few parcels drop out because they feel like it.

The bigger problem might be that the original "mistake" took place some time prior to 2007. People like the former Secretary and the President might be long gone. If the OP has stated the facts accurately, those two belong in prison. Except for those little things called statutes of limitations. Yeah, I would not hesitate another day to find an attorney with experience in these matters.

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By MbS on 06/22/2015 11:59 AM
My HOA, located in Palm Beach County, Florida, has left over 2 dozen homes out of the HOA CCR documents. Several of those left out of the documents sought legal counsel and were advised not to pay their maintenance until they were reinstated in the HOA. The board president reinstated all homeowners except those that sought legal advice. All homeowners omitted from the CCR documents were unaware of their non-membership in the association and continued for years to pay maintenance which includes homeowner's insurance but they were not insured.

We've been very fortunate not to have any hurricanes during this lack of coverage for those not included in the documents.

The omission of over 2 dozen homes in the CCRs was discovered by the Treasurer in 2007 and she sought to have the homes re-admitted into the association but was told by the president that it was too expensive to redraw the documents and to not tell anyone about the error; she resigned as Treasurer shortly thereafter.

Since all but those seeking legal help for their non-inclusion in the CCR were left out when the documents were redrawn, what can be done to get these homes back in the HOA documents?

It looks like over 2 dozen homeowners were paying maintenance for years without receiving the paid for benefit of homeowner's insurance and were never told they(and their property) were not included in the HOA documents or covered by insurance even though they were paying for coverage via their quarterly maintenance. I think this is fraud, perhaps grand theft.

An attorney for the association is seeking to collect back maintenance from a recently deceased person's estate; she led the fight to try and get the homeowners reinstated in the HOA. No other non-members have been contacted, nor have they received a demand for back maintenance.

Can someone help sort this out?

Thank you so much.

Are you sure that the insurance did not cover those homes? Did you see the policy? Does the omission of the 2 dozen homes come from the original documents or amended documents? If they were amended documents, I am not sure any of those documents would hold any water in court because I do not see how you can undo a deeded plat through those documents; there are ways to undo an association by vote of the members and it should say exactly how at the end of your docs. If you try to remove even one home in an association you are making a major change (by making the other members make up for the missed dues to pay bills, removal of common areas, secure access to the home, adherence to maintenance rules are some of the resulting changes) and it would have to be by their agreement. Can you imagine one home in the center of your development that is not bound to follow any of your rules?

What kind of homes are these? Condos? Townhomes? Houses?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By GenoS on 06/22/2015 2:07 PM

It's unusual, Tim, but not unheard of for an HOA to carry a master insurance policy that covers not only the common property, but some of the individual units' structure as well. My own HOA does this. The individual residences' exteriors and roofs are covered under the HOA master policy and homeowners only need condo-style walls-in coverage. Yes, typically that only happens in a condo association, but some situations are atypical.

Interesting.

Does your Association fall under FL 720 for HOAs or FL 718 for condominiums?

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By TimB4 on 06/22/2015 6:03 PM
Interesting.

Does your Association fall under FL 720 for HOAs or FL 718 for condominiums?

We're under Chapter 720 (originally FS 617 since we were formed prior to FS 720 being enacted). The most recent amendment to our CCRs was adopted a few years ago on advice of our attorneys. It says at the top,

"The intent of the following section is for the Association to purchase casualty and property insurance in compliance with F.S. 718.111(11)... Nevertheless, as the Association is not considered a condominium or a condominium association under the Condominium Act, the Association, apart from certain provisions within this Declaration, is not required to comply with any portion of Florida Statute §718.111(11)."

As long as we are able to procure the insurance policy I guess it's fine. The idea is in the event of a lot of wind damage, to get the ball rolling ASAP on repairs and/or rebuilding without having to rely on individual homeowners who might drag their feet on making repairs due to disputes with their own insurance companies, FEMA claims and perhaps inadequate coverage. Basically, nobody here wants to look at blue tarps for months on end. It seems to be working well so far. The CCR amendment is fairly new, but it has always been that way here for 25+ years. Every potential buyer is told up front that we have an annual special assessment for the master insurance policy.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Good info to know Geno.

Thanks.

MbS (Florida)
Posts: 7

Posted:

Are you sure that the insurance did not cover those homes?

Yes; a board member wrote to at least one excluded member stating that they needed to buy insurance because they, as non-members of the HOA, were not insured.

Does the omission of the 2 dozen homes come from the original documents or amended documents?

Not sure but attempts to have homes reinstated, no matter what the mistake, were rejected by the president of the hoa because the process of redrawing the documents was deemed to expensive.

What kind of homes are these? Condos? Townhomes? Houses?

These are townhomes. To illustrate how strange this is; each townhome is in a 4 plex; that is, they are in groups of 4. In one group of 4 that I am aware of, 3 townhomes were left out of the documents.

Thanks.

MbS (Florida)
Posts: 7

Posted:

Thank you. I will check into that if possible.

MbS (Florida)
Posts: 7

Posted:

yes, this is the case; the outside of the townhomes are covered by insurances which part of the maintenance payment pays for.

MbS (Florida)
Posts: 7

Posted:

Geno,

Thank you for your reply. The HOA president under which this debacle took place is still serving.

5 of those left out of the documents (discovered in 2007) consulted an attorney and were told that
they were under no obligation to pay maintenance as non-members. Prior to consulting an attorney
they offered to pay their maintenance if they could rejoin. The HOA president then went forward
and had the documents redrawn to include 2 dozen homeowners and continued to exclude those 5 that
sought legal advice.

The only demand for payment of back maintenance was served upon a terminally ill member of the group
of the 5 excluded. That demand came 2 weeks before her passing and she had been the one that gathered
the 5 to legally challenge the HOA to re-include them in the documents. She was also the original
Treasurer that discovered the exclusion of all the townhomes in the documents in 2007 and tried to have
them readmitted. She was told it was too expensive to have the documents redrawn and to not tell
the excluded homeowners they were not in the HOA. It was later communicated that all these homes
were paying maintenance - including the cost of insurance - but were not covered. The only other
maintenance is bundled cable and property maintenance which the excluded homes continued to receive.
One member of this group speculated that the property maintenance guys were not going to skip mowing
lawns at the randomly placed townhomes and that the board never tried to stop cable delivery to those
excluded because it would have created a legal record acknowledging the board's knowledge of the excluded
homes. Some excluded homeowners were told to pay maintenance "in good faith".

I have to admit this is one of the craziest HOA issues I've ever heard of!

NpS (Pennsylvania)
Posts: 4,216

Posted:

Hi Mb

Geno and Allison asked you about the original plat for your community. Don't see where you checked it out, but it is your starting place.

Go to the recordar of deeds (or whatever it's called where you are) and see if the excluded houses are on the plat that was originally recorded.

If they were on the plat, you have one issue. If they weren't on the plat, you have a different issue. Find out and let us know.

Sikubali jukumu. Read all posts at your own risk.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By NpS on 06/23/2015 7:44 AM
Hi Mb

Geno and Allison asked you about the original plat for your community. Don't see where you checked it out, but it is your starting place.

Go to the recordar of deeds (or whatever it's called where you are) and see if the excluded houses are on the plat that was originally recorded.

If they were on the plat, you have one issue. If they weren't on the plat, you have a different issue. Find out and let us know.

Ooos. "Recorder of Deeds"

Sikubali jukumu. Read all posts at your own risk.

MbS (Florida)
Posts: 7

Posted:

NpS

Thank you v much. I will do this and get back.

This message board has been so helpful; I want to thank all of you
and will get back when I get the plat information.

mb

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By MbS on 06/23/2015 7:41 AM
5 of those left out of the documents (discovered in 2007) consulted an attorney and were told that they were under no obligation to pay maintenance as non-members. Prior to consulting an attorney they offered to pay their maintenance if they could rejoin. The HOA president then went forward and had the documents redrawn to include 2 dozen homeowners and continued to exclude those 5 that sought legal advice.

The attorney's advice was sound: nobody outside the association has any obligations to pay any money into it. What I'm still not clear on is how those units were "left out" of the documents in the first place (prior to the 2007 discovery)? If it is a MRTA issue, it's not as simple as paying up your past dues and you're back in the HOA. That's not how covenant preservation or revitalization works.

I also would not rely on the president's word about what units were and were not included in the insurance policy. I'd ask one of the owners who's still in the HOA to ask for a copy and look at what's in it with my own 2 eyes. If the president is playing fast and loose with the rules then I wouldn't trust him to tell me the sky is blue.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By GenoS on 06/23/2015 11:32 AM

Posted By MbS on 06/23/2015 7:41 AM
5 of those left out of the documents (discovered in 2007) consulted an attorney and were told that they were under no obligation to pay maintenance as non-members. Prior to consulting an attorney they offered to pay their maintenance if they could rejoin. The HOA president then went forward and had the documents redrawn to include 2 dozen homeowners and continued to exclude those 5 that sought legal advice.

The attorney's advice was sound: nobody outside the association has any obligations to pay any money into it. What I'm still not clear on is how those units were "left out" of the documents in the first place (prior to the 2007 discovery)? If it is a MRTA issue, it's not as simple as paying up your past dues and you're back in the HOA. That's not how covenant preservation or revitalization works.

I also would not rely on the president's word about what units were and were not included in the insurance policy. I'd ask one of the owners who's still in the HOA to ask for a copy and look at what's in it with my own 2 eyes. If the president is playing fast and loose with the rules then I wouldn't trust him to tell me the sky is blue.

MRTA should affect all platted houses equally. Doubt there's a MRTA issue here.

Agree with not accepting Prez's word re ins policy.

Sikubali jukumu. Read all posts at your own risk.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By NpS on 06/23/2015 12:44 PM
MRTA should affect all platted houses equally. Doubt there's a MRTA issue here.

Agree with not accepting Prez's word re ins policy.

I just don't see any other way that units could be in the HOA one day, and then all of a sudden someone discovers that some of the units are not. How did they wake up one day and all of a sudden they're not part of the HOA anymore? I'm at a loss to imagine what else could have happened if it's not MRTA extinguishing covenants. Not saying it couldn't happen, just that it would have to be one weird set of circumstances.

An association just can't file random (or even not-so-random) legal documents that declare "these units are no longer part of the association", nor can they file other documents that declare "these units are now back in the HOA".

Hopefully MbS can clarify because it still doesn't make a lot of sense.

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By GenoS on 06/23/2015 2:27 PM

Posted By NpS on 06/23/2015 12:44 PM
MRTA should affect all platted houses equally. Doubt there's a MRTA issue here.

Agree with not accepting Prez's word re ins policy.

I just don't see any other way that units could be in the HOA one day, and then all of a sudden someone discovers that some of the units are not. How did they wake up one day and all of a sudden they're not part of the HOA anymore? I'm at a loss to imagine what else could have happened if it's not MRTA extinguishing covenants. Not saying it couldn't happen, just that it would have to be one weird set of circumstances.

An association just can't file random (or even not-so-random) legal documents that declare "these units are no longer part of the association", nor can they file other documents that declare "these units are now back in the HOA".

Hopefully MbS can clarify because it still doesn't make a lot of sense.

Maybe this is a situation where each townhome 4plex (not sure what that is) has its own hoa and the bunch of them together are the sub-associations and there is a master board. Maybe the master board purchased insurance and removed some of the 4plexes from its documents. That is the only way I can think of to remove some of the originally included homes.

What happens if one of the uninsured units burns down or has a flood and damages the insured units or the other way around. That is an insurance nightmare and presents a liability for the association, especially if it is found that the president knowingly caused the insurance situation to occur or allowed it to continue.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By AllisonD on 06/23/2015 5:55 PM

Posted By GenoS on 06/23/2015 2:27 PM

Posted By NpS on 06/23/2015 12:44 PM
MRTA should affect all platted houses equally. Doubt there's a MRTA issue here.

Agree with not accepting Prez's word re ins policy.

I just don't see any other way that units could be in the HOA one day, and then all of a sudden someone discovers that some of the units are not. How did they wake up one day and all of a sudden they're not part of the HOA anymore? I'm at a loss to imagine what else could have happened if it's not MRTA extinguishing covenants. Not saying it couldn't happen, just that it would have to be one weird set of circumstances.

An association just can't file random (or even not-so-random) legal documents that declare "these units are no longer part of the association", nor can they file other documents that declare "these units are now back in the HOA".

Hopefully MbS can clarify because it still doesn't make a lot of sense.

Maybe this is a situation where each townhome 4plex (not sure what that is) has its own hoa and the bunch of them together are the sub-associations and there is a master board. Maybe the master board purchased insurance and removed some of the 4plexes from its documents. That is the only way I can think of to remove some of the originally included homes.

What happens if one of the uninsured units burns down or has a flood and damages the insured units or the other way around. That is an insurance nightmare and presents a liability for the association, especially if it is found that the president knowingly caused the insurance situation to occur or allowed it to continue.

Geno and Allison
Think you are both looking for a logical explanation for illogical behavior. Per OP, current exclusion (5?) was selective based on participation in a lawsuit. Prior exclusion (2 dozen) may have had some legitimate basis tho.

Sikubali jukumu. Read all posts at your own risk.

AllisonD (Florida)
Posts: 449

Posted:

NpS I was trying to figure out how the original exclusion occurred, I think we know the recent exclusion was selective, you are right. I will never understand the power-trip some folks go on when they are on the BOD.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By AllisonD on 06/24/2015 4:18 PM
NpS I was trying to figure out how the original exclusion occurred, I think we know the recent exclusion was selective, you are right. I will never understand the power-trip some folks go on when they are on the BOD.

Hopefully, Mb will provide new info about original plat.

Sikubali jukumu. Read all posts at your own risk.