Board "Certification" Required By Florida Law....

Followup Email to leery:

This is leery's President Message which he referred me to in answer to my followup question about "enforcement issues":

leery wrote:  With the covenants revitalized we have the reassurance that we once again have an approved and recognized code of conduct for the resort but make no mistake this is not the end of the struggle.

This is false. 

There is no code of conduct.  There are only a few "rules" that affect border hedge heights and pets.  The Covenants are not synonymous with Rules & Regs.  The Covenants contain the authority to propose and adopt a rule.  A rule which does not relate directly to a Covenanted restriction is fraudulent.  The Rules "logically" might contain a "code of conduct" with regard to the very scant provisions of the Covenants.  An HOA was never meant as a corporate bullystick to control individual behavior.  That is virtually impossible.

leery wrote:

As long as we have owners who place their own “rights” above the will of the larger community, those of us in authority will have to carefully weigh each situation.

One would hope that leery et all would carefully weigh each situation!  I think there is a term for societies that place the community welfare over that of individual rights...COLLECTIVISM--a political set of social beliefs closely related to the tenants of communism.

Here is what leery et al subscribe to:


This pretty much describes "One Park, One Voice" and is embodied in his Message.

Here is what I subscribe to:

This embodies my belief and the reason for filing a lawsuit against SLohA.



This illustrates the dilemma that S-bag finds itself in.  It can try make all the rules it wants but it has only one way to enforce against Owners--through the courts.  The Owners ALSO have a dilemma; when the BOD violates rules and Covenants (as it has done by sponsoring commercial activity), THEY have only one way to enforce--through the courts.  In this respect, there is a damnable symmetry but the balance of power, of course, tips in favor of the ones controlling the piggy bank.  Remember that even ONE LAWSUIT will cost owners $75, 000 before the insurance company will step in and try to bring reason and closure to the dispute.  It is not the Board's money.  They are feeding egos and attorneys.



  

A couple of years back during a community workshop on proposed changes to the Covenants, a man in support of those changes stated that our American system of government is based upon majority rule and, as such, those in the minority should either acquiesce or leave. Apparently this individual knew nothing about the Bill of Rights. Both Jhn Adams and James Madison argued in the Federalist Papers for the need to "protect the minority against the tyranny of the majority". Madison specifically asserted that one of the primary duties of government was to prevent the  usurpation of individual property rights by the mob.

Dick Tracy posted:


Rules & Regs must be adopted by each individual unit of which there are three.  The Board is now very aware of that important legal detail because it cost them the loss of Revitalization #1.   The original boards of the 80's knew and obeyed this but somewhere along the way, someone decided to revise the law according to their own reality, preference or convenience.  Each of the units must ratify a proposed rule by 50% + 1.

In most situations where multiple subdivisions share common property, the Developer sets up a Master Association which governs the elements of the property that affect all owners equally.  This was not done by the Developer for S-bag and has created more complex and difficult governance issues, as we have seen.

Rules MUST be based on the underlying authority of the Covenants.  One must be able to logically connect the dots from the Covenant to the Rule.  Rules are only a clarification or tweaking of an existing Covenant (restriction).  I know of no covenant, past , present, original, revitalized whatever....that addresses architectural restrictions on homes and appurtenances.  That might be because the Covenants were written for a campground and permanent structures were strictly prohibited.  Though Polk County usurped SLohA restrictions on homes in 1994, SLohA has no authority to say squat about what owners do on their property.

Going up the hierarchy:  Rules & Regs are on the bottom of the pile with respect to power, authority, significance, etc.

Bylaws:  require 66% of the entire membership.  (This has been the subject of my own skepticism; SLohA records do not support the current provision changed in the Bylaws ie from 2/3 entire membership to 2/3 of valid votes cast.  In my opinion, this is meaningless as "valid votes cast" is not defined.  Also, it does not make sense because if only 10 people vote and cast "undefined" valid votes, then Bylaws, which are the major body of lawful due process, can be changed on the whim of 7 people!)  If SLohA attempts to create a new Bylaw using the "valid votes cast" as its affirmative basis, it could easily be cH allenged.

Articles of Incorporation:  These are the next highest, above Bylaws and Rules and below Covenants aka Declarations.  Articles have not been fiddled with regarding voting thresholds and remain 2/3 of the entire membership.

Covenants/Declarations (referred to by many names but these are the most commonly used):  These are the ruling guidelines which describe the theme of the property and the general restrictions which apply to property use.   It also refers to the establishment of a corporation to manage the common properties and states that assessments can be collected for payment of maintenance of those properties and facilities.  Covenants provide the authority to amend governing documents, including Rules.  Less superior documents cannot overreach the Declaration and can make no law which conflicts with this Master Document.

The Covenants have no provision for self-amendment; they only contain a "release" provision.  SLohA attempted to add a provision in 1986 and placed a proposition on the election ballot.  This proposition failed to pass the "75%" release clause in all of the three units.  But SLohA ignored that failure and recorded the Amendment  as if it were legally adopted.  So, there is the belief that SLohA has the authority to amend the Covenants with a 75& affirmative vote, but that is, in fact, false. 



Attachment DeletedThis is an example of the TinKirbell Effect, which has been described elsewhere on the forum.

A NEW Covenant added requires 100% approval.


I am very certain that leery listerine knows that there are many non-consenters in S-bag and he was also aware that S-bag would be sued if it attempted to force its restrictions without consent.  leery is somewhat insulated by following the recommendations of Management's attorneys who are no doubt eager to please the SLohA board and earn fees from the deep pockets of Owners' assessment contributions.  All you have to do is look what the Board and the attorneys did with 66SS to see the path that this bunch want to follow in the name of One Park One Voice.