Board printing lies in their newsletter.

Does the "on-going lawsuit" have to do with the Board denying Members acess to the Board meeting?

How do you know that the Board was not in Executuve Session, where the general Member population is not authorized to attend?

Did the board give a reason why the general Membership could not sit in at the board meeting?

Kevin,
Too bad Donna is buying Barbados and can't answer some of the legal stuff involved.

I would consider your situation very serious and if you or anyone you know wants to take on the Board about this I would be very sure that you establish a accurate paper trail with names, times, etc.

But first, what says the Board to questions regarding there actions and unfolding events. I sense they may be on a slippery slope, but nothing but just a feeling. Could they be losing control or is there a concentrated effort afoot to replace them? It all spells trouble and the sooner addressed the better for all. A thought just occurred to me that if there is organization against the Board, maybe both sides could appoint a couple members frome each side to sit down and have a talk. Nothing binding at this time and nothing official, just an attempt to find some common ground. The Board could be simply flailing around because they don't know if they have support or not. Their actions of trying to keep folks out of a called meeting in a public building seems self distrutive but it could have reasonable explanations, at least resonable to the Board, but I would like for them to announce their postion about that.

I have posted on the ongoing situation with my HOA...

Essentially, over the past few years, one of the sections of our neighborhood has taken it upon themselves to create one single HOA (our subdivision is capable of 12 individual HOAs). I feel the method as to which they decided to make this change is questionable...

They changed the articles of incorporation to eliminate the requirement to be a resident for voting requirements.

They changed the by-laws, giving vague wording to the requirements of being a board member. The president does not own a home, but resides in the neighborhood. The treasurer does not live in the neighborhood at all (she lives in an old section of the neighborhood that became a separate HOA and subdivision).

They went around the neighborhood collecting signatures over a period of three years until they had a majority of homeowners for each section. Once a majority was reached, they claimed each section was mandatory and charged a $100 assessment regardless of membership or if you signed a joinder.

They had also claimed that they were still a voluntary neighborhood. If you were a member prior to the ammended and restated covenants and restrictions (ARC&Rs), bought a house after the ARC&Rs, or joined after the ARC&Rs you were a permanent member. If you were not a member prior, you had the option to join later.

The first sections to be announced as "mandatory" were earlier this year. We were told to pay or face fines (the maximum allowable by law).

They have been calling county code enforcement on all the sections that have been
amended to try to enforce their new covenants. In most issues, code enforcement stated that they came out because their was a call and they had to follow up, but they did not find any wrongdoing.

The association held open meetings up until August. I had attended an earlier one before the lawsuit was filed by another homeowner. Once a clear "opposition" was established, the HOA changed their rules only allowing members in good standing to attend. I understand that only members can vote, but according to statute 720 all homeowners are allowed to attend or speak. In the meeting I attended, a homeowner attempted to question the board on the ARC&Rs but the board would not allow them to speak.

The HOA's logic was that they are not governed by statute 720 because they are not a true Homeowners Association because they removed wording from their ARC&Rs about placing liens. Because of this alteration, they believe they are only governed by statute 617 (Corporations Not For Profit).

They will not communicate with any of us homeowners who are not members anymore and instructed their attorney not to answer our questions. Even though we had paid the 100$ assessment under protest (as advised by our attorney), they will not even disclose financial information to us because we are not members.

I had also filed a complaint with the Governors' Office against the individuals who are the Board Members. They improperly notarized documents for the HOA and the ARC&Rs, in some instances not stamping documents, not identifying their relationship to those who signed, not dating the paperwork, or notarizing their own paperwork, violating statute 117. They responded by using the HOA lawyer to state that I have no grounds to complain because my primary residence is not in the neighborhood. They copied a deed to my home and stated I was retaliating a covenant enforcement letter sent to my brother in the neighborhood (they had mailed the letter after my complaint). I had filed a complaint against a notary public and had only mentioned the HOA to illustrate their infraction.

One of the big issues is that they are stating they are not a Homeowners Association so they can restrict meeting access, but they claim to be a Homeowners Association to collect assessments regardless of membership to their corporation.

They had just held their elections at the Holiday Inn. Their bylaws state that votes for Board Members must be cast by hand, while regular votes can be cast by hand or proxy. They issued proxy votes for the board members on their website. They allowed you to select the current board member or a blank for you to enter a name. If left blank, it leaves your proxy to the determination of the proxy (they happen to be the secretary and treasurer of the board).

They updated their website... the board remained the same.

Kevin,

I think your original question was whether or not something should be done about the "supposed" lie regarding the meeting place. I think you and your fellow assn members have much more serious problems to be concerned about! Let this issue go and concentrate on the important problems.

Susanna,

First of all, SusanW is not a FL resident, so it would be understandable that she might not be aware of the FL HOA statutes.

Secondly, what you say about executive session is not true. Below is the section from the FL 720 statutes, which does allow exec. session to discuss proposed or pending litigation and personnel matters:

(2) BOARD MEETINGS.--

(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.

(b) Members have the right to attend all meetings of the board and to speak on any matter placed on the agenda by petition of the voting interests for at least 3 minutes. The association may adopt written reasonable rules expanding the right of members to speak and governing the frequency, duration, and other manner of member statements, which rules must be consistent with this paragraph and may include a sign-up sheet for members wishing to speak. Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the members is inapplicable to meetings between the board or a committee and the association's attorney, with respect to meetings of the board held for the purpose of discussing personnel matters.

No matter where it is held, the Board meeting is called to order, THEN a motion is made to go into Exectuve Session.

The purpose (to go into ES) is stated and the room can be cleared of all people, except the board and invited guests.

Kevin,
Correct me if I am wrong.

You refer to we and them.
Does this mean the THEM is the Board exclusively? Does it include the members that can get into meeting?

Does the WE include only those members that can not get into the meetings? Are there WE folks that can get into meetings?

Would it be safe to say the WE people all desire to somehow change the covenants?

Is it accurate to say the WE people are an organized group or just a few folks upset with the Board?

What has been done by this organized group (the WE)?

Has any group of concerned folks (the WE) actually sat down at table with the Board?

Is it safe to say your (WE) are all members but not volunteers?

You have made some strong allegations againt (THE Board, I assume), do you know if you sue THEM you sue EVERYONE, you included?

WE have not sued the THEM?

Now tell us what you think WE want to do? Have you asked WE?

If you can make sense of this, can you get WE to organize an Open to all owners (unofficial) Town Hall Meeting?

You must have enough solidarity to have leadership, present a fair agenda, the skill to follow the agenda and the means to inform attendees of conclusions, invite feedback and sumerize the position of the WE.

If you can get this far you will be considered a force to be reckoned with by THEM.
That's a start.

Now if you are unable to show solidarity and organization and want to just flail around, try Legal Aid, and city authorities or county authorities, try your local elected politicians and go up the line.

I would hope by this time you would have a consideranle record of all this stuff you say is going on. Organize it, get the he said, she said out, edit it, and add only the facts as you go along.

Try BBB, your Attorney Generals Office, the Florida Statutes on associations. Consider hiring a attorney for advise and guidence, but get a HOA Attorney, set your limits and set your agenda.

Please note what you wrote.

:The reason why I joined this Board. etc, etc.

How is this true?

If your name is on the deed as an owner or co-owner and that information was transferred to the Management when you purchased, you are a member. (I strongly suspect)

Are you implying you have two active board members for 900 homes. What is your approx income each year?

I can tell you what I think is happening if this current Law Suit is directed to turn the Association mandatory. If I am right, you better deal with that and it will cost you or whoever. I think "they will pursue this fight over years" to finally reach the required signatures needed to turn your association mandatory. The rest of the issues going on have to be dealt with individually. If they lie in a Newsletter. you personally (unless you have an organized group) have to deal with them personally. I am at a lost as to why any lawyer, theirs or yours hasn't told you this. It sounds in some aspects, you personally, may not even be involved legally. If you have legal standing why haven't you gone through the appeal process as outlined in the Florida Ombudsman Legislation. It is sort of like an arbritration board. Check out the serach feature at the top right of this page. You should pick it up by searching "Florida".

As far as who is right in this mess, and I don't condone a lot of the things the Board does nor their methods, I have to say they have a rght, under law I believe, to roceed and change the association to Mandatory. Many of of that post here simply can not see how an association can operate fair with Mandatory and volunteer members. There are exceptions to every rule, your organization does not appear to be one.

Your problems are many, your support is sparse, you success record is not there, it is a long term problem, it is getting worse and will get destructive, if not addressed. You must meet on common ground with your opposition or you must meet at the judges bench. All of you are working hard to find the judges bench. I am sure he will have a few things to say about mediation, compromise and cooperation.

I was referring to HOAtalk when I mentioned joining a board. Sorry for the confusion!

The neighborhood is divided into 12 sections. Only once section had a HOA established and a BOD. That was Section 2. They legally changed their name *Name of the Association* Section 2 to just *Name of the Association*. They had then sent out newsletters stating they were for the entire neighborhood and pushed for their unification of all 12 sections.

The structure of the board, as taken from the website is as follows:

President/Post Master
Vice-President/Membership/Fund Raising Committee
Secretary/Newsletter/Web Master
Treasurer/Landscape Committee
Director/Architectural Review
*Director/Code Enforcement (Covenant And Restrictions)
Director/Neighborhood Watch/Security
Director/Mandatory Association
*Director/County Liason/Special Projects

*-indicates the seats are vacant and held by the President and Treasurer.

Our by-laws were changed by the BOD in 2006 to read

B. Organization – The official functions of the Association will be performed by a Board
of Directors composed of 9 members: Four (4) officers of the Association:
President, Vice-President, Secretary, and Treasurer; and five (5) members-atlarge,
as specified in the Articles of Incorporation. A minimum of seven (7)
members of the Board must be members of the Association in goods standing
(as defined below). The members of the Board of Directors will perform their
responsibilities without remuneration in any form, i.e. gifts, salary, or wages.

Because of the wording, there are 9 members but a minimum of 7 must be members of the Association. That means 2 members of the board are not members of the association. This rule change was made allowing the President who does not own a home, but lives in the neighborhood with the Secretary, and the Treasurer who lives in an adjoining neighborhood to be on the board... but by their own policy, only allowing "members in good standing" to attend the general membership meetings seem contradictory. In theory, they should not be granted access either.

From what I understand, our neighborhood was designed around negative covenants. From what I have heard, and from reading the material of the lawsuit against the HOA, to change an association from Voluntary to Mandatory by changing the covenants from negative to positive, you must have 100% of the homeowners to sign joinders to their property.

What make s this situation different is that the Board had worded their Amended and Restated Covenants and Restrictions (ARC&Rs) to state the association is voluntary (for those who were not members prior to the ARC&Rs). They do not use the term "mandatory". Here is the section involving membership:

Section 1. Membership. Every record owner taking fee simple title to a Lot subsequent to the date of the recording of this Amended and
Restated Declaration in the Public Records shall automatically be deemed a member of the Association assuming all rights, obligations and benefits of
said membership. Any record owner who has taken fee simple title to a Lot prior to said recording date shall not automatically be deemed a member of
the Association unless or until said Owner has agreed to join the Association pursuant to the terms of the Association’s Bylaws as then in effect. Any
change in record title ownership of a Lot shall subject the Lot Owner to membership upon the recording of the transfer deed.

By their reasoning, since they do not explicitly state that the association is mandatory, it is still considered voluntary and they only need a simple majority (50%+1) to make changes to our covenants. If you would notice though, one of the director's titles is "Mandatory Association".

The association has tried to have the best of both worlds. To exclude homeowners from membership meetings, they stated that Statute 720 does not govern their actions because they removed the ability to lien from their governing documents.

Statute 720 reads9) "Homeowners' association" or "association" means a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel. The term "homeowners' association" does not include a community development district or other similar special taxing district created pursuant to statute.

But they continually tell homeowners that they are still voluntary. Here is an excerpt from their website:

Question 4: Will this make the *NAME OF ASSOCIATION* HOA a Mandatory Association?
Answer: NO. This does NOT change the statutory nature of the Association. For existing property owners there will be no requirement to become a member of the Association. Current members will automatically belong. Those that are non-members when the ARD is adopted will still need to agree to join the HOA before they can participate as a member. Once the ARD is adopted, each new owner of a property will automatically become a member of the HOA, upon transfer of the title to the property. (See Article III Section 1).

I believe that either the BOD is getting poor legal council, and that the BOD is not fully aware of the legal issues involved. Their attorney is primarily a collections attorney, and if you consider their business, if you have a neighborhood with 40% membership, that means 60% of that neighborhood are not your potential "customer". If you make that neighborhood mandatory, 100% of the neighborhood can potentially be your "customer" (in the form of collecting on unpaid assessments, fees, and dues). That is all speculation. The same law firm has also been involved in converting other neighborhoods into mandatory ones, but nobody ever contested the changes.

When evaluating the situation, my brothers and I had weighed the options of giving in and becoming a member, but we had decided it was not in our best interest to join the association (especially when there was doubt that they had acted lawfully). The reason why we are continuing to look into the matter instead of selling the home is because this is the house that we grew up in and holds lots of sentimental value.

I know, but the OP wants to keep the property for sentimental reasons anyway.

He's in a real "rock-and-hard-place" situation.

Me, personally, I have no such sentimental attachments to property (probably comes from moving almost every year when I was a child, then being in the military and moving around a lot as well).

Property, to me, is an ends to a means (either investment or a place to live, but not the ONLY place to live) and has no emotional value whatsoever.

I'm not a cut-and-runner, but in this case, I would have tried to just get as much out of the property as I could and move on.

I, personally, would have no interest at all in the train, on track or otherwise! But that's just me!

Kevin, please don't mistake my comments for anything negative towards you.

I can totally appreciate your position.

I was simply throwing in my own perspective, and it in no way is either better or worse than yours, just different.

I do feel your pain. I hope this can work out to your favor in some way.

MicheleD, I wasn't taking any comments as negative. I was just explaining.

To clarify we had obtained the house when my parents had both passed away. My mother had at one time been a member. Around the time the BOD were introducing their proposed covenants, she was sick, but had reviewed them with my brothers and I and we did not like the additions made (the Covenants went from 1 page to 8 pages). When my mother passed and the house legally became our own, we notified the association that we were withdrawing her membership.

The reason why we were withdrawing membership is because the amended documents granted them greater authority over our property and introduced assessments. The assessments can be determined by a majority of the BOD for any amount. Since we have no common areas to care for (clubhouse, pool, playground), we did not want to agree to a document that can potentially make us liable for an undetermined amount of money.

Now they are telling every homeowner regardless of membership that they owe assessments. We have been working closely with the homeowner who is suing the neighborhood so that we are aware of the details.

Our goal is to have the neighborhood that we once had. The person suing has lived there since the beginning and bought his house for the same reason my parents did.

In the history of our neighborhood, the developer did not create a mandatory association because the Veterans Association refused to give loans for homes in a mandatory HOA. Since the beginning, our neighborhood was voluntary.

Trying to operate from within the HOA is difficult. The BOD carry around a stack of proxy votes to every meeting. If you raise a motion that opposes their plan, they activate their authority over the proxy votes (the rules designate the board members as proxy over all issues brought up in meetings). Since there is rarely anyone who attends the meetings, like I said before, having a quorum can be as little as 15 people for a neighborhood of over 900 homes.

Since I am not a member, I am not allowed to look at any HOA paperwork (even though we had paid a yearly assessment). The board has also labeled my brothers as part of the opposition and has their volunteer to check on our house (we were held in violation once because of a sign in our yard that complied to the covenants standard's but promoted a lawsuit against the HOA). We can't get any information because they check our names against the rolls, and if it doesn't match perfectly, they will not continue.

Florida law does allow an arbitration for HOA disputes, but there is no point. The arbitration process has an average cost of around $10,000 and the winner of such arbitration can still collect their lawyers costs. I've contacted every Florida government agency that I can and they all tell me to obtain an attorney and bring it to court (which is what the plaintiff against the HOA is suing for).

We are just working to prevent them from issuing any other assessments and return the neighborhood to our original negative covenants! And I would like to prevent them from printing untruths in their newsletter. I understand they may not discuss the specifics of the case to people, but a lot of people do not know what is going on and when asked, the HOA just tells them they are taking care of it.

Glen,

Excellent calls on both meeting entry & dubious BOD proxies.

Susanna and Kevin,
Susanna,
With the most respect I would strongly suggest we as posters here regularly do not request Company Names. I am sure your reasons are pure but I suspect it may have gone over the line a tad.
Personal exchange of e-mails is the way to go with this.

If a poster posts the Company Name I don't see a problem but if we respond and have a Company Name in our response we walk a fine line.

Kevin: Please read and consider.

Thank you for the suggestion. I have been careful in the past not to post any names to avoid any conflict (especially since I do not know 100% of the details and would hate to attribute incorrect information to a particular name).

And GlenL, I thank you for that suggestion about any VA mortgages and I will definitely research that. I know there are plenty of original homeowners in the neighborhood, so there lays a chance that such a mortgage exists. I have never had a mortgage, so I am very unfamiliar with what is involved in having one.

The money is not that much. The assessment may be $100 a year.

The reason why I do not like the amended covenants are because the new covenants grant the power to assess and state the details for such power are in the by-laws. The by-laws state that an assessment of any value can be determined at any time for any reason by a majority of the board.

I feel that is a little to vague. I believe that if they want to charge assessments, they should allow those they wish to assess into a meeting for a vote.

As for property value, my parents bought the house for around $120,000. At the height of the bubble my type of home was valued around $300-$400k. Its now closer to $200-250k. The HOA would post in the newsletters how the neighborhood's value has gone up and we were no longer a $120k neighborhood. They stated they can help protect the values of the neighborhood, and also pushed for a wall saying it would increase property values by $10,000. Our property value continues to drop, and I do not attribute any increase in value to their wall (it was of very poor quality).

As for member benefits, there are none! We have zero common areas, no community center, no pool, no landscapers. Our roads are county throughways. I would say the only one thing that may be considered a benefit is that they hire a cop to drive in the neighborhood (but every time I see him, he is on his phone).

The other "benefits" we got are now irrigation for the islands of grass in the cul-de-sacs (which are also county owned), and a power meter to power a light on our entrances (our entrances sit on major roads lit by street lights).

They actually built the irrigation before we had a budget for it. We actually had no real expenditures. Once the board built it (the board requires board approval for all expenditures over $100), they then stated in their newsletter that they now had to switch from construction phase to maintenance phase to care for all they built.

Yikes!!

That's a huge issue!

It somewhat amazes me that it went on this long before they "discovered" their error.

Interesting that the insurance does not cover the lawsuits against them.

Did you find out how they discovered this?

And refresh my memory, is it the board bringing suit against 57 homeowners or the other way around?