Release Non-Voting, Non-Due Paying HOA Members?

We are a small Florida HOA with 30 lots. Lot sizes are anywhere from 1-3 acres. We have one private road with gate access. There are three lots that are located outside the gate on a public road.

A few years prior to turning control of the association over to the members, possibly at the same time the gate was erected to control access, the developer filed with the county a "Release from Declaration of Covenants and Restrictions". This document states that whereas the covenants and restrictions were imposed on these lots, these lots are located outside of the gated area of the subdivision and therefore do not enjoy the common areas and amenities, therefore, these lots would be released from any obligations to pay assessments, both annual or special, as well as voting rights, the rights to hold office, or enjoy membership privileges. However, the remainder of the covenants and restrictions would remain in place including all building and use restrictions.

This is a rural area. Outside of our subdivision are many nice homes. There are also a small number of undesirable homes. But overall a nice and peaceful area. The HOA lots/homes outside the gate are kept up nicely. It is my belief that it's not just because of the deed restrictions, but pride of ownership.

We have board members, such as myself who feel that these homes should be entirely released from the HOA. Certainly they pay no assessments, which I'm sure they are happy about. Yet while we impose restrictions on them, which includes everything from the repainting of their home, changes in landscaping, restricting them from parking a boat in their driveway, they have no voting rights and no say so in association business. This just doesn't seem right.

To release these lots will take a vote of the entire membership. Some members do not want the release. They fear these homes will suddenly become wreaks, be painted bright pink... you get the picture. Yet at the same time, directly across the street from our community, and these homes is pasture land. We can't control what could eventually happen there. Still, this may be a struggle to get the votes to release these homes from the HOA.

But I also wonder... is this entirely legal? I'm guessing that it may be. If the owners outside the gate were to take this issue up and fight to be released, I wonder how it would be looked upon and would stand. Any thoughts?

Thank you!

Paying assessments and being restricted by covenants are two separate issues.

I would have not problem restricting deeded property in this circumstance. Whether they pay assessments may be irrelevant.

I agree with this. There are many developments that have deed restrictions only, no association at all.

Toni, what is the percentage required to amend the covenants?

Unless the CC&Rs are crystal clear on the lines here, and the lines are bright, I would agree with anyone who called this a mess. Almost any action here sounds highly vulnerable to serious litigation.

If push comes to shove, I think an arbitrator, judge or appeals court would say, 'The HOA cannot enforce restrictions against these three lots and at the same time, not give the three lots any voting rights.' Property rights are a big deal. The setup sounds too much like the proverbial but nonetheless applicable, 'King George imposing taxation (or other penalties) without representation.'

If I were the judge, then it would come down to whether to (a) give the three lots voting rights or (b) release them from the covenants entirely.

Giving them full voting rights on, say, directors does not sound exactly fair to the lots inside the gates. After all, if the covenants allow the HOA to go to court to enforce xyz covenant, who pays the HOA's attorney? Not the lots outside the gate. And so on. Giving the lots outside the gates partial voting rights is messy.

Releasing the three lots from the Covenants entirely likely takes an affirmative vote of a certain percentage of the membership. And the three lots darn well better be allowed to vote on this one. I do not care what the covenants say about voting rights of the three lots.

I think I would favor releasing the three lots from the covenants via the required vote on same. Though the wording for this may take some serious legal study.

What you are asking will likely need to be answered by an attorney versed in property (not HOA) law.

To me, if the lots were Released from covenants, then there are no restrictions and the covenants do not exist. However, I have not seen the filed documents and have very limited knowledge of FL statutes. Simply my layman's opinion.

So, the owners didn’t not pay assessments and don’t vote ... so, aren’t members of the HOA, but are deeded for CCR purposes.

Sorry - mine was autocorrected into confusion ...

Should say: " So, the owners don't pay assessments and don’t vote ... so, aren’t members of the HOA, but are deeded for CCR purposes."

To me, they owners not in the HOA are still deed bound to those CCRs ... it is odd, but not much different than a voluntary HOA with enforceable covenants per deed restrictions.

Just to be thorough, take a look at the recoded Plat for the neighborhood if one exists. In Florida, if a deed references a Plat then it is as if the Plat itself was copied into the deed. The plat may reveal things about the status of the lots and if it contains restrictions that conflict with anything filed afterward by the developer then things can get interesting.