Opt-Out

Started by KevinK7 • 12 replies • 2121 views

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KevinK7 (Florida)
Posts: 1,343

Posted:

I was curious and I think I know the answer to this.

A person I know was looking to buy a house in my neighborhood. He did not want to join the HOA. The HOA insisted it was mandatory due to an amendment 15 years ago. When his mortgage company got involved they had an attorney state that the neighborhood was not mandatory and so this person decided to buy a home. His attorney requested preservation documentation from the HOA. They never responded and when he bought his house he said they provided him with an opt-out document so that he would not be part of the association.

It was my understanding that you cannot create exceptions for covenants. Since the association insists that their covenants are valid then they should not be offering opt-outs, correct?

Wouldn't this open up more cans of worms?

For instance, if they pursue action against a homeowner for nonpayment, couldn't that homeowner point to the exempt person and say that they should also be held to that standard? Couldn't paying members of the HOA pursue action against each other or the HOA for a similar reason?

BillH10 (Texas)
Posts: 1,217

Posted:

Kevin, it's either a mandatory association or it is not. If it is mandatory, there is no opt-out. What do the documents on file with the County Clerk say?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Kevin,

As you pointed out, by saying you requested preservation documentation, MRTA is involved.
As you know, MRTA is a unique issue to Florida and it can be confusing.

Yes, I agree that if the Association is insisting documents are valid and membership is mandatory, why are they providing "opt-out" paperwork at closing.

My best guess is that the Board will insist it's mandatory to those who will not challenge what they say. If challenged, they know the answer and back down.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By KevinK7 on 08/19/2015 6:35 AM
When his mortgage company got involved they had an attorney state that the neighborhood was not mandatory and so this person decided to buy a home.

This is not very persuasive. Every attorney has an opinion but the only one that counts is the one that comes from the judge. It would take a declaratory judgment to convince me that membership is not mandatory.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Sounds to me like its voluntary. So he does not have to join.

I have no idea what passed 15 years ago, but even if you passed something saying its mandatory membership, but its a voluntary association, that amendment is meaningless.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By SteveM9 on 08/19/2015 9:59 AM
even if you passed something saying its mandatory membership, but its a voluntary association, that amendment is meaningless.

Unless it was passed with 100% agreement from all members.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

What amenities or common areas is the HOA maintaining? You don't have an HOA unless there is something ALL the neighbors/members share. That may be road maintenance, a welcome sign, a clubhouse, pool, or recreational area. It ranges from a variety of items and conditions. So are they sharing or using something that is common to all? If so, I say they need to pay their fair share for it's use or don't use it. Volunteer can mean you voluntarily pay for what you use, or you don't have it.

Former HOA President

KevinK7 (Florida)
Posts: 1,343

Posted:

15 years ago the board went around and collected signatures from 50%+1 homeowners amending the covenants saying new homeowners were locked into lifetime membership, old homeowners were still "voluntary," meaning that once they joined they were members for life. The attorneys behind the amendment did so to skirt mandatory association laws by claiming this provision made the association voluntary.

In 2009 they passed preservation documents but months after the expiration meaning they should have filed revitalization - nor preservation. In their paperwork they insisted on preserving the mandatory amendment and this was an issue that they tried to enforce with me.

I just don't understand the reasoning and thought this particular individuals situation interesting. I have had neighbors be told they were mandatory and I have had neighbors told that they can only leave at the end of the year and they must pay a full year's assessments.

I know Florida is a crazy state for these things but was just curious what some other perspectives were. This homeowner came to me because what they were being told by the HOA was confusing to them.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By MelissaP1 on 08/19/2015 3:21 PM
What amenities or common areas is the HOA maintaining? You don't have an HOA unless there is something ALL the neighbors/members share. That may be road maintenance, a welcome sign, a clubhouse, pool, or recreational area. It ranges from a variety of items and conditions. So are they sharing or using something that is common to all? If so, I say they need to pay their fair share for it's use or don't use it. Volunteer can mean you voluntarily pay for what you use, or you don't have it.

There is a clubhouse and a couple unmaintained lots. Since I withdrew my membership I don't use any amenities or services.

The documents for this neighborhood are very interesting (at least in my opinion). They were drafted before any clubhouse or property. Those came with a business's deal in the 80s after the original developer went broke. Then there was a document signed by some of the homeowners dismissing the old covenants for a new set, and it were these documents the HOA attempted to preserve in 2009.

BanksS
Posts: 403

Posted:

Iowa has something similar to MRTA. My association is voluntary but there are member and nonmember sanitary sewer fees. Nonmembers must pay 3 times more for sewer service than members. So everyone is a member because of the cost to nonmembers. There was an Iowa Supreme Court case a number of years ago regarding a similar issue. The court ruled that the association may charge nonmembers more for services than members but the fees must be reasonable.

The only other amenity in my association is a fishing/swimming pond. I would gladly give up membership because the pond amenity isn't something I care about using but I would also give up my vote plus pay 3 times more for sewer service. I'm not willing to do that at this time. We have no other option for sewer service.

Sorry folks but I believe I have mentioned this in previous posts but thought new posters may be interested as it has relevance to the topic.

GenoS (Florida)
Posts: 4,276

Posted:

Bear in mind that Florida's MRTA came out of a desire to eliminate old deed restrictions that sometimes went back hundreds of years to the time when Florida was still owned by Spain. Over the centuries deed restrictions kept getting piled on as tracts were subdivided and it became a herculean task to sort out all the encumberances and restrictions on titles to real property.

MRTA was designed to eliminate most of the cruft that clouded titles on land if it was older than 30 years. MRTA greatly simplified title searches because prohibitions on keeping donkeys under 3 years of age on a parcel that were written into a land title by Juan Ponce de Leon in 16th century were done away with.

MRTA was not written with HOAs in mind. When people realized that it also affected HOA covenants and deed restrictions it was an unanticipated consequence of the legislation. At its heart, Florida's MRTA is not about voluntary vs mandatory HOAs and fees. It's about deed restrictions of every size and type, stripe and color.

BanksS
Posts: 403

Posted:

Quote:

Posted By GenoS on 08/19/2015 5:33 PM
Bear in mind that Florida's MRTA came out of a desire to eliminate old deed restrictions that sometimes went back hundreds of years to the time when Florida was still owned by Spain. Over the centuries deed restrictions kept getting piled on as tracts were subdivided and it became a herculean task to sort out all the encumberances and restrictions on titles to real property.

MRTA was designed to eliminate most of the cruft that clouded titles on land if it was older than 30 years. MRTA greatly simplified title searches because prohibitions on keeping donkeys under 3 years of age on a parcel that were written into a land title by Juan Ponce de Leon in 16th century were done away with.

MRTA was not written with HOAs in mind. When people realized that it also affected HOA covenants and deed restrictions it was an unanticipated consequence of the legislation. At its heart, Florida's MRTA is not about voluntary vs mandatory HOAs and fees. It's about deed restrictions of every size and type, stripe and color.

Thanks for the explanation and Iowa's law is about deed restrictions as well but Iowa law is 21 years. The result of not revitalizing for my association is what turned it into a voluntary association. The deed restrictions in my development are unenforceable. But we are left with a common sanitary sewer which is the home owners only choice for this utility. At this point the association would have to start completely over with 100 percent approval to even have deed restrictions. I don't think that will ever happen. The consequence of letting the deed restrictions expire is what we live with now, a voluntary association with the option of being a member or not but paying more for not being a member.

KevinK7 (Florida)
Posts: 1,343

Posted:

I always think my neighborhoods are perfect case studies because they involved a HOA and attorney pushing the limits of HOAS and MRTA. I see how MRTA would be good for properties even younger then Spanish territorial days. I know through research there once was a provision on the properties in my neighborhood banning the creation of a wax museum. It is odd that wax museums were specifically mentioned but it's there. Now that is gone and I am free to compete with Madame Tusaud's down the street.

It also shows the lack of understanding regarding properties and the laws. My HOA never researched the covenants throughly so they saw the 1982 restrictions and worked off of that but ignored the fact that there were a set of 1979 covenants that took precedence. That is what has led to this whole confusion about opt-outs or me and my situation.

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