Are Mortgagee Consent Letters Subject to Member Inspection?

Our Declaration and By-Laws require Mortgagees Consent for Amendments so the provisions of FS 720.306 (1) (d) (1-6) apply.

Our Association has sent an Amendment that was recently passed by the Members to the required Mortgagees for Consent.

Are those Mortgagee Consent Letters subject to FS 720.303 (5) Inspection and Copying of Records?

Thanks for helping me understand this!

Why would the HOA have that? The OP is referring to approval from the mortgagee when certain amendments to the CCRs are being voted on.

Sorry, meant to say that procuring mortagee consent to amendments that do NOT affect the rights or interests of mortgagees poses an unreasonable burden.

I do not understand your question. The docs require mortgagee consent. Presumably this is documented. The documents are official HOA records.

That paragraph has some pretty strong language.

"The Legislature finds..."
"... is an unreasonable and substantial logistical and financial burden on the parcel owners and that there is a compelling state interest ..."

The "compelling state interest" phrase is significant in Florida's statutes. Normally, no legislation in Florida is permitted to impair existing contract rights. Use of those words, however, usually signals an exception is incoming.

Then there's the July 1, 2013, date for both amendments and mortgages which confuse the issue further. It would be interesting to see any case law that exists.

I read a bit on this topic at one point - my sense is that the provisions in some HOA docs relating to requirements to notice and seek consent from mortgage companies and banks is OBE - it is a massive logistics issue.

Why on earth would you even want to even view those letters? I am sure there is better reading material on the internet. I realize we are all getting bored during this shutdown, but resorting to reading mortgagee letters I think goes a little too far.

I agree the language is strong. I also think there was a "legal reason" to include it.I think this section of the statute (concerning mortgagee approval) throws out and/or limits some HOAs' covenants requiring mortgagee consent. The Florida Constitution says that a person has the right to "protect property" and "no person shall be deprived of... property without due process of law." I believe the courts say that taking away property rights is the same as taking away property. Normally the Florida Constitution trumps the Florida statutes, perhaps unless there is a "compelling state interest"? If a HOA member or mortgagee went to court claiming that FS 720.306(1)(d) is unconstitutional (because it throws out and/or limits covenants; and so takes away property rights; and so takes away property without due process), would the HOA member or mortgagee prevail?

Poor upkeep of a HOA may certainly lead to large special assessments, financial ruin of owners, an owner who is upside down on her or his mortgage, and a mortgagee having on its hands a HOA member unable to pay the mortgage. On its face, for a covenant to require that mortgagees 'give consent' on amendments that radically affect the mortgagees interests seems reasonable. For a whole lot of fun, let's assume that if even one mortgagee explicitly does not consent, then the amendment fails.

Does a HOA member have standing for a viable plaintiff's claim in court when the HOA member himself or herself has no mortgage, but objects to only some mortgagees being asked for approval of the amendment (per the statute) when the Declaration or Bylaws state that all mortgagees must give approval?

I would say yes. The HOA member joined the HOA in the belief that passing amendments without the consent of mortgagees would not be possible.

Does the language in the statute about "compelling state interest" help, if a dispute lands in court? I think so. I think the judge will now say to the defendant homeowners' association: Prove to me there is a compelling state interest. Or the state will intervene in an amicus brief yada.

For condos, Florida 718 has similar language, except that the bill enacting the relevant section appears to have been passed some years earlier, around 2007. For condos, the dividing line for the two classes of mortgagees is Oct 1, 2007.

I googled a few, key short phrases from the mortgagee consent provisions of the statute, checking especially the case law at justia.com. I turned up no case law, no promising hits, and no law firm discussion of any controversy over this subject.