The New SLohA Governing Documents

Got a question from an inquiring owner recently that they don't understand why we are no longer a homeowner association. Good question and one which the directors likely do not understand either.

Fact is--until the covenant expiration issue came along, nobody (that we know of) was aware that SLohA did not meet the statutory definition of a HOA because it lacked a key provision in its Declaration!

Here is the definition:




THREE Conditions (in red) must be met!  ALL of them--there are no "or's written into the definition!  SLohA met the first two until the covenants expired; it now only meets ONE of the conditions.  It was never a statutory HOA from the get-go because it failed to meet ALL THREE statutory requirements.

SLohA acted "as if" it was an HOA believing that it was, in fact.  That illusion was maintained for decades because no one ever cH allenged an action by SLohA--until it placed a use restriction on my title that I objected to.  One might have thought that some past lawsuits would have brought this to light, but the fact is that it was not necessary to go that deeply into the corporate identity since SLohA typically defeated itself and lost lawsuits on less esoteric legal considerations.

SLohA is now a not-for-profit corporation responsible for the operation of a community and has the powers, duties and obligations described in FS617.  Additionally, SLohA might have certain powers/duties granted in the Articles of Incorporation and the Bylaws that are independent of any authority granted by a Declaration and which do not conflict with FS617.  It is no longer a "private government entity" and has NO VOICE in the use of private property.  It is still subject to superior laws and ordinances of Polk County, Florida Constitution, Statutes and Administrative Laws, common law and Federal Law. 

What will Polk County have to say about this?  I have no knowledge but my guess is "nothing" unless an issue is presented to it (such as the violations of zoning and building permitting currently being investigated against SLohA and KCNet, or crumbling roads or failed wastewater plant or county-mandated revisions to the PUD or too-frequent police calls for civil disturbances).

Revitalizing will not fix the underlying problem; it will still not be an HOA even if it is approved for a revitalization and is able to sustain a subsequent legal cH allenge.  It can only pretend, keep its corporate fingers crossed and hope that True Believers clap and the Complacent Majority continues to fund the Legal Fees line item of the budget. 

I am at a loss to envision how SLohA should reinvent itself in the future; perhaps staying on the present course as a corporation tasked with taking care of common properties ONLY is the least problematic and expensive of the options.   That will require a re-education of Board directors and Owners, as well.

As usual, my disclaimer: "I am not an attorney and the above is presented for discussion purposes and should not be relied upon as "legal advice".

Dick Tracy:  I believe you are referring to this post; correct me if I am wrong:

This is a question that has been appealed to the circuit appellate court.  It will be up to the court to say whether it is true or not. I am advised that the decision may take about a year.

As I understand it, the Petitioner's reasoning, in a nutshell, is this: 

A lien has a specific legal meaning that is well-established in law and it requires a contractual agreement by the parties OR can be created by operation of law.  Obviously, there was no contractual agreement in SLohA's Declaration authorizing SLohA to file a lien on a parcel.  Indeed, the word "lien" does not even occur in the Declaration nor is it referenced by another similar or equivalent term. 

In SLohA's governing documents, the word "lien" appears only in a corporate document--the Articles of Incorporation.  The Articles are an internal corporate document and are NOT a contract between the members/shareholders and the corporation.  A corporation does not have the authority to encumber parcels with a lien on a parcel. 

Therefore, SLohA does not meet all three conditions of a statutory homeowners association and the DEO did not have jurisdiction to revive the Declaration. 

This summary is an oversimplification of a very complex cascade of questions.

Makes one hope and Pray the Court takes this complaint seriously and not just discard it as frivolous!