FL Covenants Filed Incorrectly

KM1 (FL)
Posts: 62

Posted:

Hi all - newly elected BOD member here - and the newly elected president just moved and resigned - so I'm now the appointed president. Whew! Just inherited a mess with the covenants and bylaws that were updated and filed in 2008. A member (and now BOD officer) noticed that the bylaws signature page signed by the former BOD was duplicated and attached to the amended covenants. She consulted with a lawyer (self paid) who stated his opinion that our covenants were void. I can't argue - the signature page was certified by a notary stating "that the foregoing BYLAWS constitute the amended BYLAWS of the said Association...."

Furthermore, I am told that if there are two lot owners, EACH must have signed the approval (75% of membership to amend CCRs). There may be enough signature pages, but my initial review of bouncing the old member roster against the member signature pages show in some cases where only one lot owner signed - not both. I'm guessing this may mean the bylaws are void also.

Were the 75% signature pages supposed to be filed with the county also? That wasn't done, but the amended declaration clearly states "Whereas, the undersigned represent at least 75% of the record owners...." I thought the BOD members that signed and notarized the CCRs "represent" the 75% and as long as we had the backup signatures in our official records, that was allowed.

I'm thinking I need to go into county property record history to know for sure if there were one or two lot owners. Am I making this too complicated? Some of these people may not even live here anymore! Do we have to start from scratch? Do we revert back to the old ones? Can we chuck it and default to the FL statutes?

I'm worried - the former CCRs were from 1976. Per the old CCRs there are minimum dues that can be charged per lot -- and we have far surpassed that since 1976!

How would you tackle this problem?

MaryA1 (Arizona)
Posts: 7,043

Posted:

KM,

Have you looked at the officially recorded documents on the Co. recorder's website or at the recorder's office. Perhaps a clerical error occured at the HOA and the wrong page was attached to each doc. But, if the error is on the offical recorded doc, why not just record the amendments again, attaching the correct pages? Attach a separate page stating the originally recorded doc included the wrong signature page attachment.

Does each property owner have a vote in your assn. Normally, there is only one vote per unit. If the latter then only one signature should be accepted for each unit.

DonnaS (Tennessee)
Posts: 5,671

Posted:

KM,

I'll try to answer these but you will need to get copies from the County to see exactly what were filed.

First of all, each lot or unit has but 1 lot representative at a time. Both signatures and the ability to vote may be held by both owners but only ONE (1) can vote per issue or ballot. So your signatures are valid as you have them. (My Husband and I both are "owner on record"

As for the signature page signed by the former BOzD was duplicated. Do you mean copied? If you filed the copy version of the BOD signatures, that is NOT okay. These signatures must be the originals. As for the Lawyer telling you that the filing is void, that was unnescessary to scare you. You can file the originals and if no one has it, then redo it and refile. It is a lot simpler thatn all of your worrying.

GeraldT4
Posts: 1,022

Posted:

KM1 - Typically one vote per unit is cast. I'm sure your governing documents clarify. The sentence "Whereas the undersigned represent..." means the 75% of the record owners. Not the BOD members. Amended by-laws must be filed with the county in order to be considered in effect.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Gerald,
I also don't see a huge problem if your have a record of the documents being filed and you can access them at the court house.
Regard your dismay at having inhierited a mess, there is rarely a time when a new president takes the helm that there is not a mess. There is a mess when the association is running well and has a good track record. I think most that post here agree the whole HOA picture is a mess, won't improve until some majopr state reforms come about and managing one of the monsteres is a distribution of knowledge, guesswork, determination, willingness and a big part some insane conviction that if you do the best you can, people will acknowledge your efforts.

KM1 (FL)
Posts: 62

Posted:

MaryA,

I did review the copies on file with the county clerk. The "bylaws" page signed by the BOD is appears to be a xeroxed copy (same copy) attached to both the covenants and bylaws. In this instance, our covenants end on Article VII (pg 11), but the BOD-signed "bylaws" page attached begins Article XVI (pg 20). It's evident that it is the bylaws page, as our bylaws filed end with Article XV (pg 19), and the BOD-signed page begins with Article XVI (pg 20).

I was hoping for a clerical error that could be remedied by filing the correct page, but can't find the original filed docs in our official records!

I researched the previous governing docs. The articles do state that "class A members shall be all owners with the exception of the declarant and shall be entitled to one vote for each lot owned." Furthermore that "when more than one person holds an interest in any lot, all such persons shall be members. The vote for such lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any lot."

So, if I understand you correctly, even though it states that to amend the covenants, an instrument must be signed by "not less than 75% of the Lot Owners," BOTH of the owners signing are not necessary due to the one-vote allowance?

KM1 (FL)
Posts: 62

Posted:

DonnaS,

Please forgive my needing further clarification. I wish I could upload our .pdf copy to you to view! I will try to explain:

The bylaws can be amended by vote, and per memo this was a unanimous pass during a townhall meeting. When the bylaws were filed with the county, the notarized page (pg 20) had three BOD signatures on it. I think this is okay.

The covenants, on the other hand, is on file with the county having the same bylaws BOD signed page (pg 20) as the last page. Only that page.

I've got the 75% original notarized signed pages in our HOA files that are NOT on file with the covenants in county records.

If I understand correctly - and yes - I agree there is only one vote per lot -if all the signed Member pages I have in hand are good and account for 75% of the lot owners at that time (2006-2008 they worked this CCR rewrite), can we just take all the signature pages to the county, re-file and be good-to-go?
If so, that would be GREAT!

But one more thing - the covenants reference an "Exhibit A" property map that was not filed with the county. I found a memo in HOA records that this exhibit was drawn up after the 2008 amended filing, "but please add this to your [homeowner] covenants copy for reference." How much of a problem is it that this Exhibit isn't officially filed? Seems to be an issue in that how can we enforce things like common areas, when it's not defined/mapped in our governing docs? If we have to refile with the signatures, is this easily corrected by attaching the exhibit now -- or because of this darn omitted exhibit essentially changing what was ORIGINALLY reviewed by the 75%, we would have to start all over again? Or should was say forget it and wait another 20 years?!

KM1 (FL)
Posts: 62

Posted:

DonnaS,

Please forgive my needing further clarification. I wish I could upload our .pdf copy to you to view! I will try to explain:

The bylaws can be amended by vote, and per memo this was a unanimous pass during a townhall meeting. When the bylaws were filed with the county, the notarized page (pg 20) had three BOD signatures on it. I think this is okay.

The covenants, on the other hand, is on file with the county having the same bylaws BOD signed page (pg 20) as the last page. Only that page.

I've got the 75% original notarized signed pages in our HOA files that are NOT on file with the covenants in county records.

If I understand correctly - and yes - I agree there is only one vote per lot -if all the signed Member pages I have in hand are good and account for 75% of the lot owners at that time (2006-2008 they worked this CCR rewrite), can we just take all the signature pages to the county, re-file and be good-to-go?
If so, that would be GREAT!

But one more thing - the covenants reference an "Exhibit A" property map that was not filed with the county. I found a memo in HOA records that this exhibit was drawn up after the 2008 amended filing, "but please add this to your [homeowner] covenants copy for reference." How much of a problem is it that this Exhibit isn't officially filed? Seems to be an issue in that how can we enforce things like common areas, when it's not defined/mapped in our governing docs? If we have to refile with the signatures, is this easily corrected by attaching the exhibit now -- or because of this darn omitted exhibit essentially changing what was ORIGINALLY reviewed by the 75%, we would have to start all over again? Or should was say forget it and wait another 20 years?!

GlenL (Ohio)
Posts: 5,491

Posted:

KM, You need to run all of this by the Association’s attorney and let him/her advise you on this.

Studies show that 5 out of 4 people have problems with fractions

MaryA1 (Arizona)
Posts: 7,043

Posted:

Glen,

KM already spoke to an attorney and he said the amendment was void. I think speaking to another good HOA attorney would be a wise thing to do. My recommendation would be to just re-record the docs with the right pages attached to each amendment; however, I'm not an attorney, so what I think really holds no weight.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Mary,
I agree I would want another opinion on the validity of the documents on file.When the association files and amendment to the existing filed document, it is filed as a change to that document. It could mean specific item are changed and amended or it courd be stated the whole document is considered as changed and stated so. We did this because of the number of changes that had to be made in documents 30 years old. My point being that whatever was filed first is no longer and the amendment has replaced that, what ever it contained. So I see no reason you have to go back to square one when you can change (smendend) anything you want in old documents, so just be right that the changes conform legally and a clean document is created. IMHO

DonnaS (Tennessee)
Posts: 5,671

Posted:

KM,

You can file any of the paperwork with the County as an addendum. The notorized signatures could be added as well, even tho I have not heard of notorized signatures being added to any County filings. That should be HOA property. Votes are not filed as well--just the results. The map, unless platts were changed, is just HOA paperwork . If platts or boundries were changed, then yes, file that. If not, file it with the HOA papers.

I think that you are okay other than needing to file ORIGINAL SIGNATURES on the amendment or covenant paperwork. Never are copies allowed for filing. You are okay and are worrying just a tad too much. The County isn't going to come and take your HOA away.

KM1 (FL)
Posts: 62

Posted:

Thanks to all for the info. Sounds like regardless, I may need to still consult with a lawyer. Arrghh ($$$).

The original map Exhibit A filed was an initial plat, and it appears the common areas were not described in what was filed. The covenants refer to common areas A, B, C, etc. but these areas are not visible.

30 years when the development started, there was a change in developers several times - probably three seperate builders, I've heard.

Thanks again to all. I've been searching this site and have bought a FL HOA book for dummies that breaks down the FL statutes in layman terms. It's been a big help, but I have so many unanswered questions, I'm sure I'll be seeking your assistance again!