Revitalized Documents

Started by ChuckB5 • 9 replies • 1394 views

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ChuckB5 (Florida)
Posts: 7

Posted:

Our Florida HOA (112 homes) documents were just revitalized and recorded 7/15/2021.

I have two questions:

1. Our CC&R amendments, Rules & Regulations, and Rules & Regulations Amendment were not part of the revitalization process. Does this mean these documents don't exist?

2. The attorney retyped the CC&R's from the original filed in 1974; however there are typo's, paragraphs strung together, missing words, multiple missing sentences, exhibits re-numbered from the originals filed with the county in 1974, percentage requirements of homeowners making an amendment (was 90% then 75%, now it reads 75%), and multiple other issues. What can be done?

Thanks for any assistance.

KerryL1 (California)
Posts: 14,550

Posted:

Can you define "revitalized?" I think it might have a certain meaning in FL.

Are you saying with all of those ridiculous errors, Owners voted to approve or "revitalize" them? Did they also vote on CC&R amendments?

In most states, Rules & Regs don't require votes by Owners to amend--does FL require Owners' votes? Sorry, I'm a little lost here.

MaxB4
Posts: 3,513

Posted:

This has been discussed a number of times on this forum.

Did you know that HOA covenants can expire? It may sound crazy, but it’s true! In many states, HOA covenants that are more than 30 years old expire and are no longer enforceable. This can cause a myriad of problems, not only for the HOA board, but for the whole community.

What Happens When Covenants Expire
Once the HOA covenants expire, the board effectively becomes powerless. This means that the HOA cannot enforce the collection of assessments, cannot enforce architectural standards, and cannot regulate the use of common areas and common facilities.

The most concerning of these problems is the inability of the board to enforce the mandatory payment of assessments and fees. Without this cash flow, the HOA board ends up unable to operate and properly maintain the community. The negative repercussions for an HOA that cannot enforce covenants is devastating for the property values of the homes within the community; the whole community will suffer.

Revitalizing Covenants
Fortunately, there is some good news! HOAs can revitalize their covenants if, or when, they expire through a process called Covenant Revitalization.

Essentially, covenant revitalization is a process whereby the previous HOA covenants can be reinstated just as they were throughout the community, and it will be as if there were no lapse at all.

The revitalization process involves several steps – the most important being that the board must obtain a majority vote from all homeowners in favor of revitalization. Once the vote is obtained, the revitalization must be approved by local or state governments.

Rules for covenant revitalization can be found on your state’s Department of Community Affairs (DCA) website, or in the DCA office. Your HOA management company can also help you find and understand the rules for your state regarding covenant revitalization.

It is crucial that HOA boards work with a legal team to analyze their governing documents to see what actions are necessary regarding their individual covenants. In some states, HOAs with covenants that are less than 30 years old can avoid the revitalization process altogether by “preserving” their current covenants. This process is much quicker and simpler, and should definitely be considered if it’s an option!

ChuckB5 (Florida)
Posts: 7

Posted:

This is the Marketable Record Title Act (MRTA), which is a mechanism to revitalize a declaration of covenants that has ceased to govern some or all of the parcels in a subdivision.
I can’t recall if the HO’s had the opportunity to review the documents, four tries in three years, one forgets. I don’t believe so. I just got the filed copy and that’s what I found on my first review. We have one amendment to our CC&R’s but it was not included in the revitalization process.
Neither our documents nor The Florida Homeowners’ Association Act, Chapter 720, Florida Statutes, requires members to vote on the adoption of rules. So the board of directors has the authority to adopt rules and regulations for the community.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Question: what happens to common areas when CC&Rs expire? They don't just disappear and still need to be maintained.

What happens with insurance on the common areas? What if someone is injured - do homeowners become personally liable?

And do things differ whether the property is an HOA or a condo since ownership of common areas is slightly different (ownership by the HOA corporation vs. undivided common interest in condos - or does this not apply to condo communities at all?

Inquiring minds want to know!

KerryL1 (California)
Posts: 14,550

Posted:

Nice explanation, Max. Please cite your source to give credit where credit is due. It's easy to tell you're not the author.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CathyA3 on 08/06/2021 4:24 AM
Question: what happens to common areas when CC&Rs expire? They don't just disappear and still need to be maintained.

What happens with insurance on the common areas? What if someone is injured - do homeowners become personally liable?

And do things differ whether the property is an HOA or a condo since ownership of common areas is slightly different (ownership by the HOA corporation vs. undivided common interest in condos - or does this not apply to condo communities at all?

For the archives, random thoughts:

-- My impression from reading FS 712 is that FS 712 does not apply to condominiums. Notice that Florida's Condo Act FS 718 says nothing about revitalizing covenants. By contrast, Florida's HOA Act FS 720 has a few substantive sections on the topic.

-- MRTA has to be considered on a lot by lot basis. Evidently it's not unusual for some lots in a HOA to have expired covenants (arguably needing revitalizing) and other lots in the same HOA with covenants that are not expired. It depends on things like what each owner's deed to each lot said over the years. The chatter on the net is that a "swiss cheese" effect is likely, with regard to which lots in a HOA have active covenants and which do not.

-- The plats and deeds on record with the county do not expire. This is even if the corporation is "dissolved." Dissolution of a corporation does not extinguish a corporation's rights and obligations. I am not persuaded that the "expiration of covenants" extinguishes a corporation.

-- I agree with CathyA3's concerns about insurance and liability on common area property.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By ChuckB5 on 08/05/2021 6:02 PM
Our Florida HOA (112 homes) documents were just revitalized and recorded 7/15/2021.

I have two questions:

1. Our CC&R amendments, Rules & Regulations, and Rules & Regulations Amendment were not part of the revitalization process. Does this mean these documents don't exist?

2. The attorney retyped the CC&R's from the original filed in 1974; however there are typo's, paragraphs strung together, missing words, multiple missing sentences, exhibits re-numbered from the originals filed with the county in 1974, percentage requirements of homeowners making an amendment (was 90% then 75%, now it reads 75%), and multiple other issues. What can be done?

It seems to me that FS 720.404 offers answers to these questions. In my opinion, the CC&R amendments that existed prior to the revitalized Declaration no long exist.

The HOA Board should re-write the old Rules and Regulations as needed and take the steps to put them into effect.

Regarding the errors: If the errors materially affect how the HOA is run, then I guess your HOA is stuck with amending the work of the slovenly attorney.

ChuckB5 (Florida)
Posts: 7

Posted:

That is pretty much what I thought.

When your board shops price, hires counsel with little experience, when your counsel misses the filing deadline by one day, when counsel doesn't provide documents for HO review prior to filing, then the board has no one to blame but themselves but the documents they end up with.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By KerryL1 on 08/06/2021 8:28 AM
Nice explanation, Max. Please cite your source to give credit where credit is due. It's easy to tell you're not the author.

Kerry L1 :

1 - I happen to notice that the cited text is identical to a copyrighted, dis-claimered article at the website of a Texas-based management company.

It is also undated & non-attributed there.

It is possible that there could be a connection - or even authorship - linking it to the commenter.

That URL ( for “HOA Covenant Revitalization” ) is https://spectrumam.com/hoa-covenant-revitalization/

2 - I say this VERY respectfully without any implication that undated, unattributed articles like that may be wrong or incomplete. Or whatsoever :

In the hands of well-intentioned but skillset-challenged folks, even attributed articles at credible-looking attorney sites may be misleading.

Or plagiarized or even incorrect.

And dubious outcomes may unfortunately ensue . . .

Several years ago a POA's association in my jurisdiction posted ( on its website ) an obscure, far-distant legal firm's article about what is legally spelled EASEMENTS. Such was put forward to rationalize a POA decision to purport to ENTIRELY slope-shoulder certain maintenance & capital repairs unilaterally & forever onto certain arms-length neighbours.

BUT not only was the conclusion unsupportable & actually contrary to Ontario jurisprudence, it glaringly ignored occupiers /premises liability aspects left intact against the POA. ( Such web-sited article could be a blessing for any future injury or loss claimant with even half-credible legal help. )

The substantive text article - still posted today both at the attorney's site & this POAs' 800 miles away - looks one hundred per cent plagiarized from one or more Easement texts or from a law student's class notes.

But from where ? It may have been cribbed in an an "article factory" somewhere in the Indian sub-continent or God knows where.

That's clear because it managed to repeatedly mis-title & mis-spell the word easement as " easIment" ! It also repeatedly mis-cites the relevant occupiers/premises liability statute in the jurisdiction !

Worse, it is inapplicable to the context of the potential liabilities as use-sharers, and is a bogus rationale for an arguably risky decision.

Three years later, the article is also still on the obscure law firm's own site, but someone has at least corrected the bizarre mis-spelling "easIment" . . . .

It's ultimately a warning against risky reliance by regular well-intentioned folks trying to save money . . .

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