Post by Admin on Jun 17, 2016 8:29:13 GMT -5
I have gotten permission from the owner to publish his petition to the DEO cH allenging its approval of SLohA's application for revitalization:
May 23, 2016
AGENCY CLERK
DEPARTMENT OF ECONOMIC OPPORTUNITY
OFFICE OF THE GENERAL COUNSEL
107 EAST MADISON ST., MSC 110
TALLAHASSEE, FLORIDA 32399-4128
Re: Final Order DEO 16-061
S-bag Lake Owners Association
Petitioner/Owner: James Hay Grnt Ph. #xxxxx
Legal: S-bag Unit 2 Block 39 Lot 19
Site Address: 36 S-bag Lake Trail North
Mailing Address: xxxx
Correspondence to Email: xxxx
This letter serves as a petition to object to the Department of Economic Opportunity’s Final Order No. DEO-16-016 regarding the revitalization of a declaration of covenants and restrictions presented by the S-bag Lake Owner’s Association (hereinafter referred to as “SLohA”). This decision adversely affects my property rights. A copy of my deed is attached.
I learned of the Department of Economic Opportunity’s Final Order through neighbors’ “word of mouth” when an SLohA board director, Tummy Blkbrn, published the news of the approval on a Closed S-bag Facebook Group on May 9, 2016. One day later, on May 10, 2016, the DEO Final Order was published on the SLohA website slresort.net. It was republished on the independent Resident Owner Forum S-bag.boards.net on May 11, 2016. That is where I learned of the DEO approval since I am not signed up with slresort.net.
While the department has approved SLohA’s application, it is my belief that such approval was made in error based on important issues which will be outlined below.
This petition specifically addresses the Unit 2 Declaration (copy attached) which includes Petitioner’s parcel; however, the objections contained herein similarly apply to all three units # 1, #2 and #3.
The reasons for Petitioner’s objections are several and serious. Prior to SLohA’s application to DEO for revitalization of my and two other SLohA Declarations, my parcel was unencumbered by use restrictions by SLohA’s Declaration of Covenants and Restrictions for Unit 2 as recorded Jan 2, 1974. These restrictions were expired by operation of Florida’s Marketable Record Title Act (hereinafter referred to as “MRTA”) on October 15, 2009-- thirty (30) years from my parcel’s root of title. SLohA, by seeking covenant revitalization under FS720.403-407, has attempted to re-encumber my parcel with its original use restrictions.
In approving SLohA’s application, DEO permitted SLohA the opportunity to record previously-expired use restrictions to my property without my consent. DEO’s action has 1) negatively impacted my quiet use and enjoyment of my property, 2) damaged the future marketability of my parcel and 3) affected my ability to convey my property to my adult child who wishes to relocate his family from Alaska to S-bag. My property rights are impaired by the impending re-imposition of SLohA’s use restrictions on my parcel without my consent.
The bases of my cH allenges to DEO action under the above-referenced approval decision are multiple and set forth below.
First, the DEO failed to specifically reference my Unit 2 Declaration in its decision, thereby casting a cloud on my title’s marketability. Rather, DEO simply referenced all three units in a blanket approval (there is no Master Association), naming only the corporation, S-bag Lake Owners Association, as the agent of application and its supposed compliance with the revitalization terms.
Second, although there is a current and active non-profit corporation filed with the Florida Department of State known as S-bag Lake Owners Association Inc., I do not believe it is a "homeowners' association" as referenced in F.S. §712.01 or as defined in F.S. §720.301(9). By virtue of 712.11, a "homeowners association" as defined under 712.01(4) (as well as one defined under 720.031(9)) can initiate a revitalization. The DEO failed to appreciate the eligibility requirements in its decision and apparently ignored the definition of a homeowner association under the Homeowners Act FS720 and under the MRTA law FS712. Here are sections pertaining to the statutory definition of a homeowners' association:
712.01(4) The term “homeowners’ association” means a homeowners’ association as defined in s. 720.301, or an association of parcel owners which is authorized to enforce use restrictions that are imposed on the parcels.
720.01(9) “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…”
SLohA does not meet the definition of 720.01(9) because “…membership is not a mandatory condition of parcel ownership and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel.” SLohA has no covenanted authority to lien parcels for unpaid assessment. S-bag has the power to seek a judgment for monetary damages after the restrictions have been violated, but SLohA does not meet the parcel lien requirement of FS720.
S-bag declarations also do not meet the criteria of a voluntary association under FS712.01 (4) (MRTA) as a voluntary association because it has no covenanted authority “…to enforce use restrictions that are imposed on the parcels.”
Third, the DEO has apparently overlooked the FS720 Part III requirement that the revitalized Covenants can be no more restrictive than the original Covenants recorded on parcels; namely:
720.404 Eligible residential communities; requirements for revival of declaration.—Parcel owners in a community are eligible to seek approval from the Department of Economic Opportunity to revive a declaration of covenants under this act if all of the following requirements are met:
(3) The revived declaration may not contain covenants that are more restrictive on the parcel owners than the covenants contained in the previous declaration,
Please note that SLohA submitted an amendment to the three Unit Declarations dated March 31, 1989 (recorded April 14, 1989). A copy is attached. Covenant #1 added (not amended) a restriction on the use of property to restrict “permanent occupancy…sH all include at least one person 55 years of age or older”. This added provision is undoubtedly more restrictive than the original Declaration of Covenants which contained no age restrictions at all. By approving SLohA’s application, which included this more restrictive “amendment”, the DEO has erred and not complied with the revitalization terms of FS720.404(3).
In sum, it is my position that the DEO is without authority or jurisdiction to revive the three declarations/covenants of S-bag Lake Owners Association for any and all of the reasons previously stated in this petition. It is my opinion that the Department of Economic Opportunity erred in granting approval for the revitalization of S-bag Unit 2 Declaration (as well as Units 1 & 3). I respectfully request a judicial review of the Order and ask for a reversal of the DEO order for Unit 2 (and consideration to errors in approving the other two Units 1 & 3).
_______________________________________ ________________
James Hay Grnt
Date
Enclosures
May 23, 2016
AGENCY CLERK
DEPARTMENT OF ECONOMIC OPPORTUNITY
OFFICE OF THE GENERAL COUNSEL
107 EAST MADISON ST., MSC 110
TALLAHASSEE, FLORIDA 32399-4128
Re: Final Order DEO 16-061
S-bag Lake Owners Association
Petitioner/Owner: James Hay Grnt Ph. #xxxxx
Legal: S-bag Unit 2 Block 39 Lot 19
Site Address: 36 S-bag Lake Trail North
Mailing Address: xxxx
Correspondence to Email: xxxx
This letter serves as a petition to object to the Department of Economic Opportunity’s Final Order No. DEO-16-016 regarding the revitalization of a declaration of covenants and restrictions presented by the S-bag Lake Owner’s Association (hereinafter referred to as “SLohA”). This decision adversely affects my property rights. A copy of my deed is attached.
I learned of the Department of Economic Opportunity’s Final Order through neighbors’ “word of mouth” when an SLohA board director, Tummy Blkbrn, published the news of the approval on a Closed S-bag Facebook Group on May 9, 2016. One day later, on May 10, 2016, the DEO Final Order was published on the SLohA website slresort.net. It was republished on the independent Resident Owner Forum S-bag.boards.net on May 11, 2016. That is where I learned of the DEO approval since I am not signed up with slresort.net.
While the department has approved SLohA’s application, it is my belief that such approval was made in error based on important issues which will be outlined below.
This petition specifically addresses the Unit 2 Declaration (copy attached) which includes Petitioner’s parcel; however, the objections contained herein similarly apply to all three units # 1, #2 and #3.
The reasons for Petitioner’s objections are several and serious. Prior to SLohA’s application to DEO for revitalization of my and two other SLohA Declarations, my parcel was unencumbered by use restrictions by SLohA’s Declaration of Covenants and Restrictions for Unit 2 as recorded Jan 2, 1974. These restrictions were expired by operation of Florida’s Marketable Record Title Act (hereinafter referred to as “MRTA”) on October 15, 2009-- thirty (30) years from my parcel’s root of title. SLohA, by seeking covenant revitalization under FS720.403-407, has attempted to re-encumber my parcel with its original use restrictions.
In approving SLohA’s application, DEO permitted SLohA the opportunity to record previously-expired use restrictions to my property without my consent. DEO’s action has 1) negatively impacted my quiet use and enjoyment of my property, 2) damaged the future marketability of my parcel and 3) affected my ability to convey my property to my adult child who wishes to relocate his family from Alaska to S-bag. My property rights are impaired by the impending re-imposition of SLohA’s use restrictions on my parcel without my consent.
The bases of my cH allenges to DEO action under the above-referenced approval decision are multiple and set forth below.
First, the DEO failed to specifically reference my Unit 2 Declaration in its decision, thereby casting a cloud on my title’s marketability. Rather, DEO simply referenced all three units in a blanket approval (there is no Master Association), naming only the corporation, S-bag Lake Owners Association, as the agent of application and its supposed compliance with the revitalization terms.
Second, although there is a current and active non-profit corporation filed with the Florida Department of State known as S-bag Lake Owners Association Inc., I do not believe it is a "homeowners' association" as referenced in F.S. §712.01 or as defined in F.S. §720.301(9). By virtue of 712.11, a "homeowners association" as defined under 712.01(4) (as well as one defined under 720.031(9)) can initiate a revitalization. The DEO failed to appreciate the eligibility requirements in its decision and apparently ignored the definition of a homeowner association under the Homeowners Act FS720 and under the MRTA law FS712. Here are sections pertaining to the statutory definition of a homeowners' association:
712.01(4) The term “homeowners’ association” means a homeowners’ association as defined in s. 720.301, or an association of parcel owners which is authorized to enforce use restrictions that are imposed on the parcels.
720.01(9) “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…”
SLohA does not meet the definition of 720.01(9) because “…membership is not a mandatory condition of parcel ownership and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel.” SLohA has no covenanted authority to lien parcels for unpaid assessment. S-bag has the power to seek a judgment for monetary damages after the restrictions have been violated, but SLohA does not meet the parcel lien requirement of FS720.
S-bag declarations also do not meet the criteria of a voluntary association under FS712.01 (4) (MRTA) as a voluntary association because it has no covenanted authority “…to enforce use restrictions that are imposed on the parcels.”
Third, the DEO has apparently overlooked the FS720 Part III requirement that the revitalized Covenants can be no more restrictive than the original Covenants recorded on parcels; namely:
720.404 Eligible residential communities; requirements for revival of declaration.—Parcel owners in a community are eligible to seek approval from the Department of Economic Opportunity to revive a declaration of covenants under this act if all of the following requirements are met:
(3) The revived declaration may not contain covenants that are more restrictive on the parcel owners than the covenants contained in the previous declaration,
Please note that SLohA submitted an amendment to the three Unit Declarations dated March 31, 1989 (recorded April 14, 1989). A copy is attached. Covenant #1 added (not amended) a restriction on the use of property to restrict “permanent occupancy…sH all include at least one person 55 years of age or older”. This added provision is undoubtedly more restrictive than the original Declaration of Covenants which contained no age restrictions at all. By approving SLohA’s application, which included this more restrictive “amendment”, the DEO has erred and not complied with the revitalization terms of FS720.404(3).
In sum, it is my position that the DEO is without authority or jurisdiction to revive the three declarations/covenants of S-bag Lake Owners Association for any and all of the reasons previously stated in this petition. It is my opinion that the Department of Economic Opportunity erred in granting approval for the revitalization of S-bag Unit 2 Declaration (as well as Units 1 & 3). I respectfully request a judicial review of the Order and ask for a reversal of the DEO order for Unit 2 (and consideration to errors in approving the other two Units 1 & 3).
_______________________________________ ________________
James Hay Grnt
Date
Enclosures