Lawsuit by Voluntary HOA to Force Owners to Pay for Common Area Maintenance?

A lawsuit, are you serious?

If it's voluntary, why should they involuntarily be forced to pay? Makes no sense.

This seems like a good way to become a former HOA board member in that it would probably horribly backfire.

Have you had any one competent thoroughly read your governing documents. In opinion, as Banc's mentioned, mentioning the possibility of a lawsuit to find a remedy to your dilemma can make you a former board member quickly.

George:

-- Any chance you could post (re-post?) the governing documents for this voluntary HOA?

-- Do you know if the Florida statute on HOAs (Title XL, Chapter 720) applies to your HOA?

-- Is your voluntary HOA incorporated, such that corporate statutes apply?

-- Is the deed for the park and other common areas clear that this park and common areas belong to all who reside in the boundaries of this development?

On being a former member - I have rental property in this neighborhood. They asked for help. Many are elderly, poor communicators via electronic means, ill, with a huge apathy context.

Mark - I have a pretty good handle on the docs, but the issue is a bit more complicated. Not from the point of view of the HOA being voluntary, but from the need for maintenance where costs are only borne by those volunteering to pay them.

Augustin, I have not posted enclosures previously - they will obviously have the names of the HOA - no harm?

Thanks.

George, just spitballing...

Do the deed covenants for the indivisual homes give the owners the RIGHT to join the voluntary HOA? Does the HOA have to accept them as members or can it send the money back and deny them membership?

Where doed the voluntary HOA get its marching orders from? There are Bylaws I assume. Is it a not-for-profit corporation governed by Chapter 617 of the Florida Statutes?

Maybe MRTA has extinhuished some of the homes' deed restrictions. In a mandatory FS 720 HOA the board can file a preservation that ensures the covenants don't expire after 30 years, but in a voluntary association I don't know if that works with so many homeowners not members of the associaion. Theoretically individual homeowners could file for preservation of their own individual deed's covenants and restrictions. I tend to doubt too many of them would have actually done that.

I'm thinking the HOA could get down to 3 members, all directors, have no other members at all, and float the idea of selling off the property owned by the HOA proper, starting with the park. The reason would be because of a lack of funds to properly maintain the property. Sell it to yourselves for $5 and put up a fence and No Trespassing signs. You have to convince the owners somehow to voluntarily contribute.

Even if MRTA extinguished everyone's deed restrictions you couldn't "revitalize" effectively because revitalized CC&Rs or covenants may not be more restrictive than the otiginals. Converting from a voluntary association to a mandatory one that forces people to pay would be "more restrictive" almost by definition.

No, don't do a lawsuit. That will be expensive and time-consuming and will result in people hating you.

Just work to convince people of the merits of the goal that you want.

Thank you, George. I am reading the docs and Florida statute 617 yada. Pertinent parts that leap out at me:

-- The deed states the park land belongs to the HOA.

-- The Declaration of Covenants under "Definitions" states the organization of the HOA has the purposes of operating the street lights continuously and maintaining, "the park, entrance island, signage and landscaping thereof."

-- The Declaration at Article IV, Section 1 states the HOA has the right to enforce all conditions yada of the Declaration.

-- The Bylaws at Article VII, Section 2(e) oblige the Board to procure and maintain liability insurance for the common property.

-- The Bylaws at Article VII, Section 2(h), oblige the Board to maintain the common property.

-- The Bylaws at Article VII, Section 1(g) allow the Board to bring suit "on behalf of the Members."

-- The statute at 617.0302(15) states the corporation, has the power to "Have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is organized."

-- The Declaration may be amended by a vote of 90% of the owners.

I would want to review the case law. But it seems to me that first, the HOA could bill all owners for the expense of maintaining the park et cetera, as listed in the Declaration. When people do not pay, the HOA could bring suit to force them to pay. The reasoning would be along the lines that the above says nothing about whether the HOA can collect the fees for maintaining the common property. It says everything about the corporation's responsibility to maintain the common properties. Here's the back-and-forth I imagine could take place in court:

Judge to defense attorney: How will the HOA pay for this without all owners chipping in?

Defendants' attorney: It is a voluntary HOA. The costs have to be divvied up among the dues-paying members.

Judge: Where does it say this?

Defendants' attorney: Nowhere. But fairness demands it.

Judge: This does not seem fair to me. Nor does it seem reasonable. All the owners use the park, street lighting and so on. Suppose no one 'volunteered' to pay dues. Then what?

Defendants' attorney: The park and lights fall into disrepair.

Judge: But the Declaration requires the HOA to maintain the parks and light.

Defendants' attorney: This is only a part of a definition in the Declaration.

Judge: Doesn't matter. Courts all the time go to, for example, City charters to identify purposes that are legal obligations. Do you really not want, say, street lights?

Defendants' attorney: Correct. My clients do not want street lights, a park, nothing. My clients do not want to pay for anything. It's a voluntary HOA.

Judge: Yet this Board is legally tasked to maintain these common properties.

Defendants' attorney: This is not my clients' problem.

Judge: Suppose a kid falls in the park and breaks her back. The insurance skyrockets. How does the HOA pay for this?

Defendants' attorney: Not my clients' problem.

Judge: We are going around in circles. Here is my ruling. Your clients have some legal ownership of this common property. The Declaration requires the property to be maintained. It is not reasonable nor fair to only have some of the owners pay. Your clients must pay. Don't like it? Appeal.

From Geroge’s post it does appear they simply need a lawyer to send the demand letters, then file a lien. Followed by possible wage garnishment.

I agree with Melissa.

I wouldn't send lawyer demand letters. That will just make people angry.

Well if they are not paying for the common area maintenance... How is one going to hire a lawyer? Not going to use my personal money for that... A HOA is ONLY funded by it's members.... So who picks up the lawyer fees?

Reading through some of the case law on non-mandatory neighborhood and civic associations, I do not like George's HOA's chances at all. For a court to rule in favor of his HOA would be reading too much into the Declaration. Everyone who bought into George's subdivision bought in knowing it was voluntary. All knew that, if insufficient owners chipped in, that proper maintenance could suffer, and insurance might lapse. If I bought into a voluntary HOA with the intention of never paying any fees to help maintain and insure the common areas, and the Board came after me to pay the bills, I would fight it tooth and nail and expect to win, including attorney's fees. I would be disappointed in a board that tried to muscle me with its collective corporate might (meaning the dollars of the Members).

None of the case law cited here http://www.ccfj.net/HOAartFLVMandHOA.htm is directly on point. But there is chatter about how voluntary HOAs may not legally seek fees from non-Members.

Interesting points, All. I appreciate your thoughts.

PaulJ - our costs here are quite a bit less than yours - and, would require those not wanting to pay the $60/year assessment, to come up with a lot of money to counter. And convincing people of the need and logic of this has met a dead end ... many slam the door right after you tell them your name.

Augustin - I'll take a look and see if there is something applicable or close to applicable. Yeah - this is unexplored territory.

Sheila - the HOA is being held together by 109 out of 189 paying assessments of $60/year. We have enough money to do this as we collected too much for two years, then lowered the assessment because so little was needed. I had to make a point to do this as they we see-sawing up and down based on unknown number paying.

All - the core issue will continue forever with this subdivision, unless some relief is identified. Sooner or later, those that are holding it together will simply fade and then it will end up in receivership. I'm trying to come up with some way to alleviate this inevitability. Frankly, a suit to force payment that comes about after the HOA starts liening properties, might air out the options. The risk is that liening might generate a suit to counter a title clouded by the lien.

Please keep thinking about options.

Thanks!

As George may already know, Florida 617.1432 says a receiver may be appointed to either wind up the corporation's affairs, dissolving assets et cetera; or the appointed receiver may be appointed to keep running the corporation. But if the owners do not volunteer to pay up, then as I opine above, I do not think the receiver can legally force payment any better than the former BoD can. I guess Statute 617 then translates to the voluntary HOA losing the park. Maybe this could be used as incentive to get people to pay. Granted what BoD would want to deal with unpredictable income? How can a BoD of a voluntary HOA plan?

Thanks, George. I haven't had time yet to look at those docs but I'll probably do so tomorrow. And yes, 200k is extremely tight.