Combined lots approved.....7 years later approval was pulled

Started by PaulB19 • 13 replies • 461 views

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PaulB19 (Florida)
Posts: 3

Posted:

I live in a large single family home development that has a Master Property Owners Association called FRPOA.
About 30% of the FRPOA homes also fall fall under a sub-association POA called GWPOA.

The FRPOA Declaration of Covenants specifies:
"Two or more entire Lots may be combined to form larger lot, or lots with the prior written approval of the A.C.B.; approved combined lots shall then be deﬁned as
the "Lot" for purposes of this Declaration."

The GWPOA by-laws do not explicitly allow (or prohibit) for combining of lots.

In 2015 a homeowner requested from ACBs of both GWPOA and FRPOA to combine two lots into one and was approved by both.
She then went through process with county and performed a "lot reconfiguration". All was well for 7 years.

In 2022, the GWPOA sub-association sent notification to the owner that she must pay TWO annual assessments and would not recognize county's "lot reconfiguration".
The under-new-management GWPOA board stated that by-laws do not allow for combining of lots.

Question: Could she argue that the Master association FRPOA by-laws (which clearly state combining lots OK) take precedence over the conflicting by-laws of sub-association GWPOA?

Thanks

P

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By PaulB19 on 12/23/2023 2:48 PM
In 2022, the GWPOA sub-association sent notification to the owner that she must pay TWO annual assessments and would not recognize county's "lot reconfiguration".
The under-new-management GWPOA board stated that by-laws do not allow for combining of lots.

The management is of course wrong. First, if any restriction on the use of this land exists, it would be in the covenants, not the bylaws. Second, if the covenants are silent on this point, then the HOA does not have the right to add a restriction unless the owners vote to amend the covenants. Even if the owners did so vote, it's not likely that the amendment could lawfully be applied retroactively.

Third, I suspect the owner is in fact obligated to pay dues on two lots. I hear you about the language in the covenants. I would bet I could find other language that says she has to pay assessments on the original two lots.

Please realize that discussing this intelligently is very hard to do without having the covenants in front of the readers here.

If the owner consults an attorney, the attorney will ask for a copy of all the governing documents and not respond for a few days, while he/she reviews the covenants and the law. By simply asking people here, you simply are not going to get the best answers, as readers are flying blind.

Things that the owner should check:

-- Verbiage in the FRPOA Declaration and the GWPOA Declaration that states whether one controls if there is a conflict. Not that there is a conflict. More to get you all looking at this the right way.

-- Has the owner checked with the county and city on combining lots, either back in 2015 or recently?

PaulB19 (Florida)
Posts: 3

Posted:

Thanks for the detailed reply! :-)
My references to "by-laws" is incorrect. All references are from "DECLARATION OF COVENANTS AND RESTRICTIONS FOR [POA name spelled out]"
*
The Sub-association and Master POA have no mention of a hieratical relationship or priority over other associations, DECLARATION OF COVENANTS AND RESTRICTIONS FOR [POA name spelled out]"
other than one of the covenants are declared as "Master Property Owners Association"
*
Both were initially submitted with county and recorded on same day.
Master association FRPOA was re-filed with county as: "AMENDED TO AND COMPLETE RESTATEMENT OF DECLARATION OF COVENANTS AND RESTRICTIONS FOR [POA name spelled out]" right before lot reconfiguration process took place.
*
*
Both associations have the two platted lots' specifically/identically listed in both covenants.
*
County (Florida) lot-reconfiguration (combining) is fine and was (is) a process done through county without any conditions by county to have POAs replat or signoff.
It carries zero weight with both POAs in context to what defines a "lot" when it comes to assessments.
*
Master association FRPOA Covenants regarding combined lots state:
"No Lot shall be re-subdivided by an Owner to form a lot smaller than a platted Lot; provided, however, that two or more entire Lots may be combined to form a
larger lot, or lots with the prior written approval of the A.C.B.; such larger lot(s) shall then be deﬁned as
the "Lot" for purposes of this Declaration.
*
Master association FRPO covenants regarding assessment: "the Board of Directors shall ﬁx the amount of the Annual Assessment
against each Lot". Note this is tied to "lot".
*
Association GWPOA Covenants regarding lot subdivision: "No Lot shall be further subdivided for residential use, unless such further subdivision of the property is to
increase the size of existing Lots. It is the intent of this prohibition to restrict the parcel to one residence per Lot or
larger parcel." Combined lots are not specifically mentioned.

Note: The associations' Architectural Control Boards" were consulted and each gave approval for lot configurations each acknowledging reduced assessment charges for one "lot". Whether or not it is binding could be argued by Association (especially the one with unclear mention of combined lots).

Thus my original querry:
Could Master association trump sub-association's conflicting covenant article concerning subdividing and lot sizing? Especially in light master association is much more specific than sub-association?

Thanks. :-)

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By PaulB19 on 12/23/2023 8:57 PM

Could Master association trump sub-association's conflicting covenant article concerning subdividing and lot sizing? Especially in light master association is much more specific than sub-association?

Thank you for adding relevant detail. My take --

-- In my experience reading case law, and with regard to merging lots to form a larger lot, no bona fide conflict exists between the Master Declaration and the Sub's Declaration. In other words, by my reading, the merge described here is lawful.

-- I would still want to see every single paragraph of both declarations that says anything about assessments.

-- What you posted is certainly compelling. I would still like to see both declarations in their entirety. Respectfully, from experience it is possible I might see things that you do not. Having another set of eyes on the documents can only help.

-- Consider creating an email address just for this forum and posting it here. If you do, I will write you, and subsequently, if you wish, you can send me both declarations.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Paul,

Keep in mind that if the master association board doesn't want to listen, you will likely need to involve attorneys to resolve.

PaulB19 (Florida)
Posts: 3

Posted:

Thank you for the detailed response. :-)
Here is a good email:
[email protected]

DeanJ
Posts: 1,786

Posted:

Sounds like a loser in court for the association.

CathyA3 (Ohio)
Posts: 6,299

Posted:

How are assessments calculated for the GWPOA? Are they based on something like fractional ownership of the entire GWPOA, or are all lots assessed at the same flat rate?

I assume it's the latter since you referred to "lots". If the homes in the sub-association are charged based on fractional ownership, then yes the person would owe two assessments. This is because the total of all fractional ownership percentages in the GWPOA have to add up to 100%, and if the owner pays only 1 assessment then the total will be less than 100%. (Fractional ownership generally applies to condos or other attached housing. Condo CC&Rs don't generally refer to "lots", but townhouse CC&Rs may do because the owners actually own the land under their homes.)

JohnC46 (South Carolina)
Posts: 14,265

Posted:

My belief is that combining two lots into one is that the lot owner must pay dues per lot and gets two votes. Not to play lawyer, but as posted the two lots now become "a lot" so one can well argue that it results in one lot dues and one vote. Just my opinion.

Were I an the middle of this, I would need a legal opinion.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ElleN on 12/24/2023 6:26 AM

-- In my experience reading case law, and with regard to merging lots to form a larger lot, no bona fide conflict exists between the Master Declaration and the Sub's Declaration. In other words, by my reading, the merge described here is lawful.

I read the Master Declaration and the Sub Declaration. I paid particular attention to the sections in each concerning:

-- definitions of "assessment," "lot," "owner" and "parcel."

-- computation of and obligation for assessments

-- owner votes

-- dividing and merging lots

Both Declarations' definitions sections say, in part, that a "lot" is land 'intended for use as a site for a single family dwelling.' I will assume that the owner who merged the two lots has a total of one house on the two lots. Paul, if this is wrong, please say so.

I found no section speaking to conflicts between the two Declarations. Regardless, on the subject of this thread, I feel there are no conflicts between the two Declarations.

My conclusion is that the owner who merged the two lots into one lot --

-- did so IAW both Declarations and so properly.

-- owes an assessments for one lot. The board should budget accordingly.

-- is entitled to exactly one vote at owners' meetings.

I advise the owner to write the sub association a polite, humble just-the-facts letter. Quote the Declarations' (both of them) definitions and sections above. Conclude that you believe an assessment for only one lot is owed.

If the sub association board digs in and assesses the owner for two lots, then the owner should lawyer up.

TerriS6 (California)
Posts: 3,284

Posted:

In California, single family parcels can now be split and contain a total of 8 residences. https://www.marinij.com/2023/12/24/marin-supervisors-tailor-adu-regulations-to-state-demands/

JoeN6 (Virginia)
Posts: 94

Posted:

The board requiring two assements may be Right . I would want to see a new plat showing all features including any “ abandoned “ drain fields , sewer laterals , etc that would service a dwelling on the lot which was folded in to the other lot . These improvements may just be put to sleep , so to speak , to be reactivated if the lot is divided back in the future . Read the requirement :

No PLATTED lot may ge subdivided……

Show me the new plat . The county , may have eliminated a separate tax map number , and on the new property card there could be remarks “ included lot 102 unimproved . The “county reconfiguration” may just be on paper . There may be an above ground improvement visible to give away the existence of a possible improved lot in the future. Ie , a driveway entrance . I would want to see the concrete driveway apron removed and the curb patched along the road and the area re-vegetated . The board may have been very patient and given the owner several years to remove the apron , but it could still be there . Pretending to ignore a boundary line between two lots just to get out of paying two fees is unacceptable.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

"County (Florida) lot-reconfiguration (combining) is fine and was (is) a process done through county without any conditions by county to have POAs replat or signoff.
It carries zero weight with both POAs in context to what defines a "lot" when it comes to assessments."

For argument's sake, this line caught my attention because you've articulated that the private FRPOA and GWPOA determination of what's a "lot" is separate from how government will define that same lot(s) for tax purposes. The tax collector can then determine the property as one unit for taxation purposes. Given the separation, the FRPOA/GWPOA determination that these are two lots, for dues assessment purposes, can also be appropriate.

The use of the term "Lot" in your declaration is a clarifying term in relation to reading your declarations. It's a reference name for your documents, not a legal name attached to the properties in question, it seems.

That said, the question is whether an HOA and ARC can vote to fundamentally change the structure of the HOA, essentially de-annexing one lot by approving a merger of two plots of land that were originally developed under the HOA while eliminating one, collateral-backed account from the HOA operations.

I'd argue that the HOA board/ARC board had no legal authority, years ago, to merge the lots in a way that eliminates one paying account from the HOA operations. It's the equivalent of giving away property without input from the other owners and mortgage holders (banks) who, essentially, have been subsidizing the owner of the merged lot. There's nothing wrong with merging a lot with the tax office/register of deeds. Trying to eliminate one's responsibility to support the HOA, post-merger, is something I don't believe an HOA/ARC board has the right to do and that the passage of time somehow codifies as being legitimate.

If an HOA board can vote to eliminate whole accounts, then it could vote to eliminate ALL accounts, which we know is impossible without bank and property owner input. Also, the sub-division provisions are to prevent increases in housing density above one home per lot.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KellyM3 on 12/27/2023 10:23 AM
Trying to eliminate one's responsibility to support the HOA, post-merger, is something I don't believe an HOA/ARC board has the right to do and that the passage of time somehow codifies as being legitimate.

I think all one can go by is what the governing documents say. What Paul posted above is consistent with what I read in the governing documents.

To me, it is noteworthy that the governing documents say only // one // single family dwelling per lot is allowed. I suspect one reason the gov docs say owners can merge two lots into one (assuming a total of exactly one single home will sit on the two lots) and pay an assessment on only one lot is because this is this may translate to that much fewer owners using HOA infrastructure and amenities.

The sub-HOA does have responsibility for roads, a clubhouse and stormwater management system.

The assessment is the same for all "lots."

A deal's a deal. The covenants say what they say.

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