Mortgagee Consent for Amendment Question

Here are a few places to start in your quest to understand the issue.

Changing Governing Documents Generally Requires Homeowner Approval.

Paragraph 2 in this Florida Land Title Association newsletter from 2013 also has some interesting information.

Whether or not the FL statutes overrule your CC&Rs is something only an attorney can really advise you on.

Right now I question my question. Perhaps it isn't even valid.

By 'routine' I mean a proposed Amendment something like this: "The Board has the right to make reasonable rules and regulations upon the approval of 60% of the Members." In that instance the provisions of FS 720.306 (1) (d) (1-6) apply, so Mortgagees prior to July 01, 2013 need notification of the Amendment.

I'm wondering if this Amendment, that deletes Mortgagees Consent completely, is a little different because it affects even the Mortgagees POST July 01, 2013. If that is the case then Mortgagees Consent Letters would need to be sent to all Mortgagees.

I'm confused and appreciate the assist!

My own wording was poor.... whereas Mortgagees post July 1, 2013 do not need notification. I agree. I agree. This proposed amendment (to delete the covenants' requirement for mortgagees' consent) would "materially affect the rights and interests of the mortgagees." As a result, 720.306(1)(d)(1) requires post July 1, 2013 mortgagees to give consent. As well, section 720.306(1)(d)(2) requires pre-July 1, 2013 mortgagees to give consent. Hence all mortgagees must give consent to this particular amendment.I agree.

I also get that this is a logistical and financial burden. But the proper remedy remains lawfully passing an amendment removing this burden. Lawfully passing the amendment requires the consent of all mortgagees. The HOA should do it or face a lawsuit or possibly complaint to a particular Florida state agency. For starters, see 720.306(9)(c).

Fighting such violations of covenants by a board (on advice of an expensive law firm) will not be fun and will be drawn out. But so far, and granted sitting in the cheap seats of internet forum land, I like your chances.

It's interesting. This question is a bit obscure yet AugustinD has answers at his/hers fingertips that give clarity to complex issues, amazing, thank you.

This is a game changer. In a different yet associated thread it appears Mortgagee Consent Letters are subject to Inspection per 720.303(5). I call these FOIAs, (Freedom of Information Act).

It will interesting to see the Boards response to a FOIA for the Mortgagee Consent Letters they sent for this Amendment.

I think it's more likely your board and the HOA attorney are being obtuse when they reason that deleting the mortgagee consent requirement from the covenants does not "materially affect the rights and interests of the [post Jul 1, 2013] mortgagees," pursuant to 720.306 (d) 1.

I still want to know whether this board and its attorney have an explanation for why they feel this way. I could be missing something. On the other hand, I feel like I have seen appeals court decisions which similarly hit the trial court judge upside the head for disregarding simple points of case law and statutes.

Now and then I see reproduced at this forum wonderful advice and wisdom from HOA attorneys. Said advice and wisdom are not in legalese but still clearly reflect case law and statutory interpretation. They are typically properly qualified, since often, "the law is what the court says tomorrow."

I have also seen reports here, and up close and personal in one of my HOAs, of spectacular legal blunders by HOA attorneys.This is only my opinion. It is because I cannot see anything in FS 720 saying otherwise.

FWIW, I would not use a reference to FOI statutes in my request. In Florida and nearly all other states, FOI statutes do not apply to HOAs. AFAIC, the legal foundation for your request is found in FS 720 and probably also FS 617 (not for profit corporation statute), specifically 617.1602. See http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0617/Sections/0617.1602.html

I think often the purpose of this forum is to better prepare a HOA member or HOA director for a meeting with an attorney. This may be the case here. From my dad: Always do your homework before meeting an attorney. It will save money.