Chapter 617.1430 Florida Statutes

WalterM4 (Florida)
Posts: 29

Posted:

Glad to see everyone is alive and kicking after the holiday's! I once lived in Georgia where a neighbor of mine was a judge.
He told me that you can take a half a dozen attorney's give them one issue to resolved between them an lock them in a room for a week, and at the end of the week when unlocked no two attorney's will have come to the same conclusion; in the end it's the judge that decides. (sadly the judge was once an attorney, and still is). I recently have received opposing views on my issue pertaining to MRTA, and the most recent opinion suggested that I go in a new direction and use FS 617.1430 due to the corruption in the community. I am now attempting to unite at least 10% of the members to go forward. Any Thoughts?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM4 on 02/03/2016 6:56 AM
Glad to see everyone is alive and kicking after the holiday's! I once lived in Georgia where a neighbor of mine was a judge.
He told me that you can take a half a dozen attorney's give them one issue to resolved between them an lock them in a room for a week, and at the end of the week when unlocked no two attorney's will have come to the same conclusion; in the end it's the judge that decides. (sadly the judge was once an attorney, and still is). I recently have received opposing views on my issue pertaining to MRTA, and the most recent opinion suggested that I go in a new direction and use FS 617.1430 due to the corruption in the community. I am now attempting to unite at least 10% of the members to go forward. Any Thoughts?

Why would you ever unlock the door?

Sikubali jukumu. Read all posts at your own risk.

WalterM4 (Florida)
Posts: 29

Posted:

I did not unlock the door it was a home invasion.

GenoS (Florida)
Posts: 4,276

Posted:

Since FS 617 covers Florida corporations not-for-profit in general and is not specific to homeowner/condo associations, I think there may be a larger pool of court cases and decisions to look at. How common is it for a NFP Corp in Florida to be involuntarily dissolved?

Are non-profit charities in FL also governed by FS 617? If so then that part of the statute sounds to me like it's meant to be used against bogus charties set up to defraud people. But it doesn't specifically say that so it would apply to HOAs as well. My biggest question would be, as I said above, how often has this been done in the past and with what success rate?

NpS (Pennsylvania)
Posts: 4,216

Posted:

http://blogs.sun-sentinel.com/condoblog/2011/11/can-a-florida-hoa-be-dissolved.html

Sikubali jukumu. Read all posts at your own risk.

GenoS (Florida)
Posts: 4,276

Posted:

So assuming no deadlocks the criteria boils down to

"if corporate assets are being wasted or misapplied"

That's a tough nut to crack. If the problem can be addressed by getting new directors then I doubt any court would order a dissolution. Whether assets are being wasted or not would go back to the CCRs and other governing documents and I think (but I do not know for sure) that most judges would toss the case back to be dealt with under the auspices of whatever FS 720 provides for dispute resolution. If there was embezzlement or outright theft going on then there would be other remedies perhaps under criminal law but, again, dissolution of the corporation is a longshot at best there. Not when there are less severe remedies.

SusanE6 (Florida)
Posts: 102

Posted:

So what does it mean in Florida Statutes that the Board embers are responsible for the fiduciary aspect of the Association? If they are found to be using the funds incorrectly or reporting the use of funds poorly to the membership, could they be held individually responsible for this under Florida law?

WalterM4 (Florida)
Posts: 29

Posted:

My HOA was created out of a fraud. The developer went bankrupt with in his first year of development, and never conveyed the HOA to the homeowners' instead a builder who had purchased some lots declared himself to be king of the hill, and he even tried to start an HOA in an already existing subdivision which did not workout. My HOA does not have open meetings, they do not have elections, and annual meetings are had every few years, financial records are not allow to be audited or review in any way. The President/registered agent/treasurer took over 11 years ago, and has done irreparable harm to the community by violating, and allowing the violation of every restriction recorded including architectual standards. There are no amenities in the community such as common area, club house or playground; if you want basketball put a hoop in the street, we have boats,trailers sheds and out buildings all over the place as well as travel trailers. The president collects $9,000.00 per year that's $90,000.00 in 10 years for which he will not give an accounting, he places many liens against people many of those are never collected, and there has never been a foreclosure. How would any of you handle this situation?

NpS (Pennsylvania)
Posts: 4,216

Posted:

How many units? How many agree with you?

Sikubali jukumu. Read all posts at your own risk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By WalterM4 on 02/04/2016 4:53 AM
My HOA was created out of a fraud. The developer went bankrupt with in his first year of development, and never conveyed the HOA to the homeowners' instead a builder who had purchased some lots declared himself to be king of the hill, and he even tried to start an HOA in an already existing subdivision which did not workout. My HOA does not have open meetings, they do not have elections, and annual meetings are had every few years, financial records are not allow to be audited or review in any way. The President/registered agent/treasurer took over 11 years ago, and has done irreparable harm to the community by violating, and allowing the violation of every restriction recorded including architectual standards. There are no amenities in the community such as common area, club house or playground; if you want basketball put a hoop in the street, we have boats,trailers sheds and out buildings all over the place as well as travel trailers. The president collects $9,000.00 per year that's $90,000.00 in 10 years for which he will not give an accounting, he places many liens against people many of those are never collected, and there has never been a foreclosure. How would any of you handle this situation?

Sell and move.

SusanE6 (Florida)
Posts: 102

Posted:

I hear that all the time - sell and move. I love my home, it is paid off and I don't want to move. Easy solution but a better solution is that HOAs be made responsible by law to run their business correctly and honestly. Some people have integrity and enjoy their home. Why should we give up? I say let's fight and make HOAs responsible and lawful.

Okay, John46, waiting for that snarky remark - I know it is coming....I am prepared.......

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By SusanE6 on 02/04/2016 3:48 AM
So what does it mean in Florida Statutes that the Board embers are responsible for the fiduciary aspect of the Association? If they are found to be using the funds incorrectly or reporting the use of funds poorly to the membership, could they be held individually responsible for this under Florida law?

A lot has been written about this subject. Here's a whole page of articles written about condo and HOA directors' fiduciary duty

http://www.floridacondohoalawblog.com/operations/fiduciary-duty-of-board-of-directors/

Here's another article about the fiduciary duty of directors in a more general FS 617 context

http://jpfirm.com/2014/cronins-corner-fiduciary-duties-of-not-for-profit-corporation-directors/

Florida courts give directors wide discretion in exercising their judgement as long as they believe they are acting in the best interests of the community. If 3 of 5 board members think that a $5,000 pool table for the clubhouse will enhance the appeal of the community then purchasing one is probably not a breach of their fiduciary duty. Even if they're the only people who play pool and even if a lot of owners think it's wasteful spending. Unless there are kickbacks involved or other self-dealing, they're probably in the clear. Vote them out by all means, but don't automatically assume they've breached their fiduciary duty.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By SusanE6 on 02/04/2016 1:49 PM

a better solution is that HOAs be made responsible by law to run their business correctly and honestly.

The best solution is for the members to actually become involved with the running of the Association. This way, the Boards integrity can be checked and, if not present, removed as needed.

However, too many individuals want someone else to the work they are supposed to do themselves. Many can't even talk to a neighbor about a problem they are having - they want the Association to take care of it for them instead but then don't want to serve on the Associations Board themselves).

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By WalterM4 on 02/04/2016 4:53 AM
How would any of you handle this situation?

Look at your deed restrictions. If the developer never turned the HOA over then maybe there's no obligation to pay. If there's no obligation to pay then FS 720 is not applicable and withholding the financial information is his prerogative. Check sunbiz for the corporation and see who the directors are. In a FS 720 HOA failure to provide access to the official records of the HOA carries a $50 a day penalty. Hire a lawyer and start the collection process.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By GenoS on 02/04/2016 2:46 PM

Posted By SusanE6 on 02/04/2016 3:48 AM
So what does it mean in Florida Statutes that the Board embers are responsible for the fiduciary aspect of the Association? If they are found to be using the funds incorrectly or reporting the use of funds poorly to the membership, could they be held individually responsible for this under Florida law?

A lot has been written about this subject. Here's a whole page of articles written about condo and HOA directors' fiduciary duty

http://www.floridacondohoalawblog.com/operations/fiduciary-duty-of-board-of-directors/

Here's another article about the fiduciary duty of directors in a more general FS 617 context

http://jpfirm.com/2014/cronins-corner-fiduciary-duties-of-not-for-profit-corporation-directors/

Florida courts give directors wide discretion in exercising their judgement as long as they believe they are acting in the best interests of the community. If 3 of 5 board members think that a $5,000 pool table for the clubhouse will enhance the appeal of the community then purchasing one is probably not a breach of their fiduciary duty. Even if they're the only people who play pool and even if a lot of owners think it's wasteful spending. Unless there are kickbacks involved or other self-dealing, they're probably in the clear. Vote them out by all means, but don't automatically assume they've breached their fiduciary duty.

Well said.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By TimB4 on 02/04/2016 2:49 PM

Posted By SusanE6 on 02/04/2016 1:49 PM

a better solution is that HOAs be made responsible by law to run their business correctly and honestly.

The best solution is for the members to actually become involved with the running of the Association. This way, the Boards integrity can be checked and, if not present, removed as needed.

However, too many individuals want someone else to the work they are supposed to do themselves. Many can't even talk to a neighbor about a problem they are having - they want the Association to take care of it for them instead but then don't want to serve on the Associations Board themselves).

No, no, no. Let us look for a way to withdraw rather than become involved.

WalterM4 (Florida)
Posts: 29

Posted:

GenoS, We all know how to search Sunbiz. The developer registered his corporaton, and just because it was hi-jacked does not make those people who have taken control legal. Have you ever been to small claims court it's a joke when you win you may still not collect or obtain what your looking for, besides this so called association does not respond to the homeowner of the courts.

SusanE6 (Florida)
Posts: 102

Posted:

John46 - what makes you think that the people who have posted on here are not involved? Many of us have served on the Boards numerous times trying hard to make the community a better place. We are often hard workers and desperately seeking answers to why Boards act the way they do. That is why we come to HOATALK to see how others deal with their HOA.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM4 on 02/05/2016 4:15 AM
GenoS, We all know how to search Sunbiz. The developer registered his corporaton, and just because it was hi-jacked does not make those people who have taken control legal. Have you ever been to small claims court it's a joke when you win you may still not collect or obtain what your looking for, besides this so called association does not respond to the homeowner of the courts.

"His corporation" = his development corp or the association corp or both???

"Hi-jacked" = the new builder took over the corporation that the developer abandoned or what???

Small claims court is a "joke" because you still might have to collect or get what you want - Are you saying that people should be put in jail til you get what you want??? What other solution do you offer for the problem???

"Homeowner of the courts" = angry noise that you don't like the situation you're in. I know of several associations where the original developer went bankrupt and someone else came in behind him. Most of them wound up with something less than the first developer promised but at least they did get built out.

Sikubali jukumu. Read all posts at your own risk.

WalterM4 (Florida)
Posts: 29

Posted:

NPS.PA

Are you thinking of moving to Florida if so I would suggest staying in Pa.

The developer is a developer!

A builder is just a builder!
Florida Statutes ( not Pa. Statutes ) do not allow conveyance of the HOA Corp to builders under Chapter 720.307. There were many builders who bought property here as well as individuals,and only one decide to scam everyone. After 26 years the development is still not built out.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM4 on 02/05/2016 8:32 AM
NPS.PA

Are you thinking of moving to Florida if so I would suggest staying in Pa.

The developer is a developer!

A builder is just a builder!
Florida Statutes ( not Pa. Statutes ) do not allow conveyance of the HOA Corp to builders under Chapter 720.307. There were many builders who bought property here as well as individuals,and only one decide to scam everyone. After 26 years the development is still not built out.

Hi Walt
I was expecting to find out if anyone filed to incorporate your association in FL. I still don't know the answer to that question.

I might also like to know if any of the rights that the developer abandoned through the bankruptcy process got somehow conveyed to someone else - maybe the builder who in you words hi-jacked the development. Bankruptcy law is federal law - so the same law that applies in PA also applies in FL.

I am not used to accepting words like "hi-jack" and "scam" as anything other than a rant when details aren't provided. Usually, those words mean that the writer wasn't willing to spend the time to explain a situation so that the readers can reach their own conclusions about what's going on. I have this opinion no matter what state someone comes from.

If the development has been around for 26 years and it still isn't built out, then that just raises more questions about what the builder and the homeowners are contending with.

So in answer to your initial question, I refer you back to one of my earlier posts. I hope it provides you with some worthwhile information.

Quote:

Posted By NpS on 02/03/2016 1:01 PM
http://blogs.sun-sentinel.com/condoblog/2011/11/can-a-florida-hoa-be-dissolved.html

Sikubali jukumu. Read all posts at your own risk.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Ahh how slow of me to just figure it out. WalterM4 and WalterM3 are one and the same.

You might think that someone who had such a bad experience at his last HOA would have investigated things more thoroughly before he made his home in a new community. Live and learn.

Sikubali jukumu. Read all posts at your own risk.

WalterM4 (Florida)
Posts: 29

Posted:

Interesting! Who ever WalterM3 is, however I can see it happening disclosures in Florida coomunity's are extremely poor.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM4 on 02/05/2016 9:53 AM
Interesting! Who ever WalterM3 is, however I can see it happening disclosures in Florida coomunity's are extremely poor.

Funny. There was a certain familiarity in the tone of your original post as M4 - As if you'd been posting here before. You say you're from Georgia - where M3 was from. You say that you're looking for ways to use the statutes to go after someone - just like M3 did. You make accusations without providing any reliable support from a source other than you - just like M3 did. You make claims about the inadequacy of the legal system - similar to the claims that M3 made.

What you haven't done is let us know what percent of the homeowners agree with your approach - something that M3 never did either.

Maybe someone else will find you disclaimer credible. Not me.

Sikubali jukumu. Read all posts at your own risk.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By WalterM4 on 02/05/2016 4:15 AM
GenoS, We all know how to search Sunbiz

I doubt that based on your responses. With that said, I'm done with this thread. Have a good day.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Walter,

It sounds like you are still under declarant (developer/builder) control.

You may simply have to wait until the current declarant transfers control to the members to see the changes you desire.

WalterM4 (Florida)
Posts: 29

Posted:

NPS,

I never had issues in Georgia, North Georgia was great, and the people were great as well. Yes! I do have a problem with laws here in Florida Governing HOA's it appears that they are unenforceable without people spending a small fortune on attorney's fees.

There are 96 lots in this community, and a current analysis is that at least 75% of the home owners do not want an HOA. This is why the president of the HOA never respond to the members, and why he has closed meetings, and never has elections. He is the only one running the show; 2 other people appointed by him are just for show. He spends at great deal of time driving in the community giving the finger to those who do not support him, and his only communication with me was to threaten my life for which I had to call the police. This ain't no fun!

WalterM4 (Florida)
Posts: 29

Posted:

NPS,

I never had issues in Georgia, North Georgia was great, and the people were great as well. Yes! I do have a problem with laws here in Florida Governing HOA's it appears that they are unenforceable without people spending a small fortune on attorney's fees.

There are 96 lots in this community, and a current analysis is that at least 75% of the home owners do not want an HOA. This is why the president of the HOA never respond to the members, and why he has closed meetings, and never has elections. He is the only one running the show; 2 other people appointed by him are just for show. He spends at great deal of time driving in the community giving the finger to those who do not support him, and his only communication with me was to threaten my life for which I had to call the police. This ain't no fun!

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM4 on 02/06/2016 5:09 AM
NPS,

I never had issues in Georgia, North Georgia was great, and the people were great as well. Yes! I do have a problem with laws here in Florida Governing HOA's it appears that they are unenforceable without people spending a small fortune on attorney's fees.

There are 96 lots in this community, and a current analysis is that at least 75% of the home owners do not want an HOA. This is why the president of the HOA never respond to the members, and why he has closed meetings, and never has elections. He is the only one running the show; 2 other people appointed by him are just for show. He spends at great deal of time driving in the community giving the finger to those who do not support him, and his only communication with me was to threaten my life for which I had to call the police. This ain't no fun!

3 options:

1. Voice of the people. With 75% support, follow your docs to (a) call a special meeting, (b) remove your current board members, (c) dissolve your HOA, and/or (d) get proxies so that you control the vote.

2. Voice of the court. Have a try at FS 617.1430.

3. Voice of reason. Someone threatens my life, I'm not going to act impulsively. But I am going to do what I think is safest for myself and my family.

Best of luck.

Sikubali jukumu. Read all posts at your own risk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Walter

You were asked if your HOA is still under declarant/developer control. Please answer.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By WalterM4 on 02/06/2016 5:09 AM

There are 96 lots in this community, and a current analysis is that at least 75% of the home owners do not want an HOA.

It's probably that high in my development as well.

However, due to deed restrictions (CC&Rs) that is not an option without removing the restrictions and getting the County to take over the stormwater management and common areas (on their own or with the creation of a special tax district for the development). I seriously doubt that will ever occur.

WalterM4 (Florida)
Posts: 29

Posted:

NPS, Options may not be the best. I know it may sound easy, but many people will not take a stand, plus as I said before this association will not and never has had open meetings most likely ignoring any effort to dissolve.

Voice of the court may be best option.

We here in Florida allow conceal carry as does I think Pa. If needed I will my defend myself as well as my family.
The president noted for being a little unbalanced by everyone who knows him.

Thank you
Walter

WalterM4 (Florida)
Posts: 29

Posted:

This particular development has no common area, and the county already maintains a considerable amount of property in the area. The fact that all of the CC&R's have been violated for many years to the point that they no longer exist means that the HOA has no authority. Without CC&R's who needs an HOA.

WalterM4 (Florida)
Posts: 29

Posted:

JC,

The declarant no longer exist he is long gone. He went bankrupt owing lots of money to the IRS, and others.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By WalterM4 on 02/06/2016 7:45 AM
JC,

The declarant no longer exist he is long gone. He went bankrupt owing lots of money to the IRS, and others.

And is the new builder, who purchased the lots and acquired the Declarant rights (by purchasing the lots), are they still there?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By WalterM4 on 02/06/2016 7:40 AM
This particular development has no common area, and the county already maintains a considerable amount of property in the area. The fact that all of the CC&R's have been violated for many years to the point that they no longer exist means that the HOA has no authority. Without CC&R's who needs an HOA.

The fact that the covenants haven't been enforced is not the same as the covenants no longer existing.

As I expect you won't (or don't) want to believe this fact, you may prefer to obtain a legal opinion from a local attorney who will have access to all of your documents and property records.

WalterM4 (Florida)
Posts: 29

Posted:

TimB,

I don't disagree, and I already have a couple of attorney's, just not from a local attorney. These YaHo's are more interest in personal injury cases and know nothing about HOA law. However a home owner took the HOA to court in the late 90's, and the HOA was told that they did not have authority to enforce the restrictions they were attempting to enforce.

The judge felt that there was only one issue that could be enforceable; limiting the size of a shed which has already been violated many times over not to mention that the HOA has declared that it will not enforce restrictions. If someone wants to take action against a violation they will have to do it on their own dime.

WalterM4 (Florida)
Posts: 29

Posted:

TimB,

The builder who purchased some lot's is around the State some place, but he too has had a fair share of problems, and wants noting to do with the community; claiming it's not his proplem.

WalterM4 (Florida)
Posts: 29

Posted:

TimB,

The builder who purchased some lot's is around the State some place, but he too has had a fair share of problems, and wants noting to do with the community; claiming it's not his proplem.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By WalterM4 on 02/06/2016 9:24 AM
TimB,

I don't disagree, and I already have a couple of attorney's, just not from a local attorney. These YaHo's are more interest in personal injury cases and know nothing about HOA law.

Well, looks like you need to find a different YaHo.

It seems that you have a lot more information on this Association then we first thought.

My only comment is that corporate laws are civil laws and, if you desire to challenge the Association or corruption based on those laws, you will likely need to hire a local YaHo (as you describe them) and see if you have a case or not.

I'm sure that you can find attorneys versed on corporate law (vs. HOA law) that can assist.

Walter, I wish you luck.

WalterM4 (Florida)
Posts: 29

Posted:

TimB,

Yes you are right I have fully investigated this community association, and I know it's a civil matter also HOA laws are civil matters. Both attorney's I am in touch with are from central Florida, and I am on the west coast therefore they are not local yaho's and that's a good thing. They are both involved with corporate law as well; that's why FS 617.1430 was suggested. When the action is taken against the board we will demand an audit, and freeze their bank accounts. Normally this would end up in the hands of the insurance company that insures the board members, however investigation indicates that this board and it's members are not insured (no indemnity policy)this should force them to spend their own out of pocket money on their defense. My wishes would be for them not to attempt a long protracted defense, but instead run for cover by dissolving the association, and return the moneys they have scammed from their neighbors.

Thank You for you wish of luck.

WalterM4 (Florida)
Posts: 29

Posted:

TimB,

Yes you are right I have fully investigated this community association, and I know it's a civil matter also HOA laws are civil matters. Both attorney's I am in touch with are from central Florida, and I am on the west coast therefore they are not local yaho's and that's a good thing. They are both involved with corporate law as well; that's why FS 617.1430 was suggested. When the action is taken against the board we will demand an audit, and freeze their bank accounts. Normally this would end up in the hands of the insurance company that insures the board members, however investigation indicates that this board and it's members are not insured (no indemnity policy)this should force them to spend their own out of pocket money on their defense. My wishes would be for them not to attempt a long protracted defense, but instead run for cover by dissolving the association, and return the moneys they have scammed from their neighbors.

Thank You for you wish of luck.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM4 on 02/07/2016 5:44 AM
When the action is taken against the board we will demand an audit, and freeze their bank accounts.

Grrrrrrrr. Go get em tiger.

Sikubali jukumu. Read all posts at your own risk.

GwenG (Florida)
Posts: 669

Posted:

Please post a link to the complaint that your attorney files against your HOA. That complaint will have all the relevant particulars of your case. Your HOA situation sounds unusual, to say the least, and it is hard to intelligently comment on such an extreme HOA picture.

Yours might be a good example of when to invoke the courts to challenge what sounds like an illegitimate HOA or, at the very least, put the HOA into a court-mandated receivorship until reorganization can be effected if it is a real HOA.

If it is NOT a statutory HOA, then 617 is all that matters and this might not be a helpful forum according to most peoples' experiences.

Thanks for the interesting thread. Florida HOA consumers need all the information they can get about non-HOA laws that can relieve abusive HOA practices.