Developer Rights

When do developer rights end, if they end, for Florida HOA Condominiums and Homeowner Associations ?

Are there any exceptions ?

The subject Docs are silent as to when or if developer rights end. Developer turnover to the membership (owners) took place over 10 years ago.

Dan

Unless there was some funky right written in the Covenants, the developers rights ended at turnover. As you have had a turnover, what is making you ask?

The governing documents have a provision that states that the developer can change the governing documents prior to turnover without the joinder of the owners. Just before the turnover date the developer made many changes whereby a statement was added to most sections saying 'This section cannot be changed without the expressed written permission of the developer'. These changes were recorded a day or two before the turnover. Some say we are stuck with them, perhaps forever. Others say they are without force and can be ignored since a turnover had taken place. There are also sections that directly give the developer, only, certain rights.

If the membership has to vote to change or remove the developer rights from the governing documents and since to do so you need the written approval of the developer of more than 10 years ago then those sections can never be changed. However if developer rights ended upon turnover then we can treat all reference to developer rights as without force and only historical reference.

Given there being two conflicting views would you have any source credible material that I could view that supports the notion that developer rights end upon turnover ?

Are you positive about that? The week before turnover in my HOA similar amendments were filed by the developer that said the exact opposite and the developer's rights to amend without consent of the homeowners were removed.

Maybe it was a scrivener's error or some other kind of mixup. It's astounding that nobody noticed that for 10 years. Perhaps not surprising, though.

Ask an attorney about...

"FS 720.3075 Prohibited clauses in association documents. -
(1) It is declared that the public policy of this state prohibits the inclusion or enforcement of certain types of clauses in homeowners’ association documents, including declaration of covenants, articles of incorporation, bylaws, or any other document of the association which binds members of the association, which either have the effect of or provide that:
(a) A developer has the unilateral ability and right to make changes to the homeowners’ association documents after the transition of homeowners’ association control in a community from the developer to the nondeveloper members, as set forth in s. 720.307, has occurred.
...
Such clauses are declared null and void as against the public policy of this state."

See if an attorney would agree that "This section cannot be changed without the expressed written permission of the developer," amounts to, "the unilateral ability and right to make changes".

I think a competent attorney will definitely be able to help you.

An amendment could be passed and approved anyway, relying on the 5 year statute of limitation to shut out any objection to it once the 5 years had passed. Meanwhile, if the developer is truly out of the picture then there is nobody with any standing able to bring an action seeking to overturn the amendment based on some harm being done to them. The party the original language was designed to protect no longer holds any interest one way or the other.

To paraphrase something someone here said the other day, a board can do whatever it wants (and an association can enact whatever amendments it wants) and it's all good until someone challenges them on it.

If you're trying to convince a recalcitrant board to do something they don't want to do it can be a tough row to hoe. We have a couple of directors who want to run to the attorneys for the most mundane things, but when there are serious questions that really do call for a legal opinion they run the other way as fast as they can.

A couple of months ago I spent about 40 hours researching some additional contract language some owners want to add to all our contracts. I had the blessing of the board to do that and they accepted my report and voted to send it to the attorney for review. A month later it was back on the agenda and some of the directors who had voted in favor of it a month earlier decided, "Yeah.... maybe we'll just hang on to that for a while and see what our vendors think about it the next time their contracts come up for renewal."

Frustrating doesn't begin to describe the experience. No problem encouraging me to spend many hours looking into it but when it's time to act they decide to blow off my proposal, dispense with getting a legal opinion and wing it with the contracts (which no attorney has ever reviewed in the first place). It's very difficult dealing with a board like that.