Are we a homeowners association?

I have been unable to find a definitive answer regarding whether or not our association is in fact a homeowners association goverened by Florida Statute Chapter 720. I am concerned because the purpose of the association is primarily to collect assessments, from approximately 3000 lot owners in a completed subdivision, with county maintained roads, water and sewer utilities, in order to maintain the common lands and provide architectural control over single family home construction. Our governing documents do not use the words homeowners association anywhere, although we fit the legal definition exactly as a mandatory lot owner membership association. Approximately 20% of the lots have been built upon. Chapter 720.302 (2) and (5), excerpted below, seem to support that Chapter 720 does not apply, since we were incorporated under Chapter 617.021, not the homeowners association parts of the act. In many respects Chapter 720 opens the door to many powers not authorized by our governing documents and allows for precedures which are far more lenient, in many respects.

The articles of incorporation were filed on March 1, 1972 and have not been altered since. The Declaration was filed on April 16, 1970 and has been amended and restated several times since. The Articles of incorporation state the following in
Article XI, Powers and Duties:
“Consistent with the Declaration and applicable laws, the association shall have all of the powers and duties granted to or imposed upon it by any of the following and any amendment thereof: (a) Chapter 617.021, Florida Statutes, (b) the Declaration, (c) these Articles of Incorporation, (d) the By-Laws and (e) other applicable laws”......

720.302 (2). In part states:
...Further, the Legislature recognizes that certain contract rights have been created for the benefit of homeowners’ associations and members thereof before the effective date of this act and that ss. 720.301-720.407 are not intended to impair such contract rights...

(5) Unless expressly stated to the contrary, corporations that operate residential homeowners’ associations in this state shall be governed by and subject to part I of chapter 607, if the association was incorporated under that part, or to chapter 617, if the association was incorporated under that chapter, and this chapter. This subsection is intended to clarify existing law.

John

You say you are single family homes with a mandatory lot owner membership association which to me says Home Owners Association even if not called an HOA. A Duck by any other name is still a Duck.

Did you get anything with your closing documents that referred to a HOA? If not, it may be the declaration was filed, but then the developer left (or went belly up - sounds like that's what happened) without filing the rest (Bylaws and CCRs). You might check your state secretary of state's corporations division to see if anything was filed, but if not, you may have to get with your neighbors and an attorney to see what comes next.

You probably won't be able to say "well, we'll just leave it alone because we hate HOAs anyway," because you may hae common areas that all the owners are responsible for. Without a framework to collect money to take care of those areas, you and your neightbors may risk becoming personally liable if someone gets hurt but there's no formal HOA to go after (or carry insurance).

I think this is the most important feature of HOAs: they can purchase insurance on commonly owned property, thus protecting individual owners from being held personally liable if someone is hurt and sues the association.

In addition, HOAs usually provide Directors and Officers insurance for the people who serve on the board and make the decisions for the association. Otherwise the board members would put their personal assets at risk if someone sues them - over an unpopular decision, for example - and nobody who understands this would ever volunteer to serve on the board.

Last, HOAs can insure their non-physical financial assets such as the money set aside for future replacement of big ticket items - this protects these funds in the event someone embezzles from the HOA.