Post by Admin on Apr 3, 2015 13:11:14 GMT -5
The final phase of resolution of the agreement reached in mediation is well under way. This is the "Battle of the Barristers" who are required to launch their best and final shot at the courts to decide on the validity of the 1986 and 1989 Amendments. These are cross-motions for Summary Judgment" and each side's Answer to the Motion. The courts decision will not be appeal-able by either side and judgment will determine the next step in the revitalization process.
In in the interest of being polite AND in recognition that I am a member of both sides (in effect, I am paying to S u e myself while I S u e SLohA), I'll post SLohA's Motion first!
Here is SLohA's full Motion for Summary Judgement.
Motion.pdf (856.59 KB)
Here is a Summary of SLohA's Motion:
April 2, 2015
Motion #1
Tg: Covenants have no authority to amend.
SLohA: Do so! Cites Bylaws “give BOD power to make and amend regulations regarding the use of property” and Covenants state Rules & Regulations are effective until amended by Bylaws” and that restrictions could be released with ¾ approval of lot owners”. SLohA states when you read the two documents together i.e. the Covenants and the Bylaws, that it is clear that the authority to amend was present.
Motion #2
Tg: Material Facts not in dispute
SLohA regards facts not in dispute as disputed:
1. Tg,i.e. No amendment provision
SLohA: As above
2. Tg No statement as to how many owners agreed to revised Declaration
SLohA Did so, it said ¾ of membership
3. Tg No reference in amendment as to the adoption of an amendment per the Declaration
SLohA agrees there was no specific reference but insists that stating approval by ¾ lot owners is a sufficient “parallel requirement”.
SLohA states that words and language is presented as “facts”, the interpretations and meaning given to them are opinions and arguments only.
Case Citations:
SLohA said the cases cited by Tg were not applicable to this case which applied “reasonableness standards” to Developers' authority to make changes not requiring a vote of members. And that, in any case, the amendments were not “unreasonable”.
Motion #3
Tg: Covenants are a contract
SLohA states that governing documents are not standard two-party contracts and should not be interpreted under principles of contract law and, that requiring 100% agreement by all parties would be too burdensome and does not make “common sense”.
States the cases cited in support are 1: irrelevant to this case because the agreement only involved “relaxing” deed restrictions and not amending 2: says the case involved associations' lack of right to convey “property rights” and was dissimilar to this case because it did not involve a “right to amend” and 3: the case didn't apply because the association specifically prohibited amendment to the Declaration and SLohA Declaration does not specifically prohibit amendments and 4: case is not about amending restrictions but about associations' authority to convey property rights and 6. case not applicable because it was only a “premature” adoption of a valid amendment.
Finally SLohA states that Florida's legislature provided for a “Majority Rule” 720.306(1) to change documents where there was no express provision for amending in the original and this is the “only logical means of adopting changes to a contract involving many and changing parties.”
Here is full text of attorney's Answer to SLohA's Motion
TeagueMemorandumAnswertoSLOA.pdf (298.72 KB)
Here is the full text of Tg's Motion for Summary Judgment
Teague_Am_SJ_motion.pdf (253.97 KB)
Here is SLohA's Answer to Tg's Motion
SLOAAnswer_ResponsetoTeague.pdf (455.01 KB)
This is S u e's take on SLohA's Motion. I looked at the Exhibits to the Motion and was taken aback by the discrepancies between the two. Apparently, Frd did not seem to think it was significant as he did not address it in his Answer/Memorandum. That's why he gets the big bucks!
(SLohA Motion in italics)
1. SLohA admits that the Association has the authority to release lots from restrictions with ¾ affirmative vote of the affected subdivision and goes on to claim that this release was as to the Covenants—rather than to the parcels—and such release authority incorporates an amendatory provision.
Mystified by this transformational “logic”. And, it is contrary to the facts presented by SLohA in Exhibit D. The Minutes (Exhibit D) of the vote clearly showed that the ballot failed with affirmative votes of 69.81%, 69.75% and 72.29% for each of the subdivisions. Puzzled...
Note: The ballot failure was subsequently acknowledged in the next month’s meeting Minutes where an intention to conduct a second ballot was planned for the following fall.
2. SLohA states that it again amended the Declaration in 1989 consistent with the above 1986 Amendment.
Exhibit D clearly shows that SLohA failed to pass the amendment in 1986, so it provided no precedent basis for an amendment in 1989. In addition, SLohA combined ALL votes for the 1989 amendment into a single aggregate vote, contrary to the existing Declaration requiring “release on a subdivision-specific basis”.
3. SLohA repeats its argument that the 1986 Amendment was properly adopted by “roughly 92% of members..”
Still puzzled. The Minutes of the Ballot reflect affirmative votes in the 60’s%--where did 92% come from? There is no supporting exhibit.
4. SLohA states that –in reliance of 1986 amendatory provisions, it duly adopted revisions in 1989 with 85% approval.
The vote was Null and Void; 1986 amendment failed to pass.
5. SLohA restates that the Developer clearly contemplated amendment to the Declaration with 1) language to amend the Rules, 2) adding provisions to sales contracts and 3) RELEASE of lots from restrictions.
1) amending Bylaws & Regs/ Rules required 66 2/3% approval, 2) adding provisions was a Developer marketing privilege requiring zero approval from members and 3) RELEASE of lots required three-fourths member approval.
With all this attention to amending, did the Developer “just forget” to include an amendment provision for the Covenants but intended to do so by including several other amendatory methods for corporate documents?
6. SLohA further discusses the amendment of Articles of Incorporation as relevant even in the absence of any specific reference to amending Covenants. SLohA maintains that amendment of Articles “reveals it was the intention of the Legislature for corporations to amend its governing documents”.
Articles of Incorporation and Bylaws are corporate documents—their provisions to not attach to deeds and cannot limit use of property. Covenants and Rules/Regs are not corporate documents and “run with the land”. “Governing documents” does include all the documents but they operate differently insofar as affecting property use.
7. With regard to statutes, SLohA argues that FS720.306 provides for 66 2/3 voting for amendments of all documents unless otherwise provided in the association documents.
Florida statutes and Florida Constitution prohibits laws from being applied retroactively unless the documents provide specifically for incorporating future legislative changes.
And, that’s pretty much it!
I think of SLohA’s arguments as based on reliance on “intentions, interpretations and contemplations”; these words occur many times in SLohA’s Motion. SLohA’s persuasive method is subjective and attempts to look backwards into the author’s mind for “intention” and forward into an environment (FL statute, condo law) that did not exist at the time documents were constructed. To be objective, one cannot logically assign “re-interpretative meaning” to the author’s mind and text. Objectivity requires one to adhere to the truth of the subject matter. This “truth” calls for strictly construing text—something which SLohA attorney motion ignores in favor of “intention, interpretation and contemplation”.
According to the legal definition of “intent”, in contract law, the intention of the parties to a written contract is fixed by the language of the contract document.
Disclaimer: I have not been paid by anyone for my opinion and interpretation.
In in the interest of being polite AND in recognition that I am a member of both sides (in effect, I am paying to S u e myself while I S u e SLohA), I'll post SLohA's Motion first!
Here is SLohA's full Motion for Summary Judgement.
Motion.pdf (856.59 KB)
Here is a Summary of SLohA's Motion:
April 2, 2015
Motion #1
Tg: Covenants have no authority to amend.
SLohA: Do so! Cites Bylaws “give BOD power to make and amend regulations regarding the use of property” and Covenants state Rules & Regulations are effective until amended by Bylaws” and that restrictions could be released with ¾ approval of lot owners”. SLohA states when you read the two documents together i.e. the Covenants and the Bylaws, that it is clear that the authority to amend was present.
Motion #2
Tg: Material Facts not in dispute
SLohA regards facts not in dispute as disputed:
1. Tg,i.e. No amendment provision
SLohA: As above
2. Tg No statement as to how many owners agreed to revised Declaration
SLohA Did so, it said ¾ of membership
3. Tg No reference in amendment as to the adoption of an amendment per the Declaration
SLohA agrees there was no specific reference but insists that stating approval by ¾ lot owners is a sufficient “parallel requirement”.
SLohA states that words and language is presented as “facts”, the interpretations and meaning given to them are opinions and arguments only.
Case Citations:
SLohA said the cases cited by Tg were not applicable to this case which applied “reasonableness standards” to Developers' authority to make changes not requiring a vote of members. And that, in any case, the amendments were not “unreasonable”.
Motion #3
Tg: Covenants are a contract
SLohA states that governing documents are not standard two-party contracts and should not be interpreted under principles of contract law and, that requiring 100% agreement by all parties would be too burdensome and does not make “common sense”.
States the cases cited in support are 1: irrelevant to this case because the agreement only involved “relaxing” deed restrictions and not amending 2: says the case involved associations' lack of right to convey “property rights” and was dissimilar to this case because it did not involve a “right to amend” and 3: the case didn't apply because the association specifically prohibited amendment to the Declaration and SLohA Declaration does not specifically prohibit amendments and 4: case is not about amending restrictions but about associations' authority to convey property rights and 6. case not applicable because it was only a “premature” adoption of a valid amendment.
Finally SLohA states that Florida's legislature provided for a “Majority Rule” 720.306(1) to change documents where there was no express provision for amending in the original and this is the “only logical means of adopting changes to a contract involving many and changing parties.”
Here is full text of attorney's Answer to SLohA's Motion
TeagueMemorandumAnswertoSLOA.pdf (298.72 KB)
Here is the full text of Tg's Motion for Summary Judgment
Teague_Am_SJ_motion.pdf (253.97 KB)
Here is SLohA's Answer to Tg's Motion
SLOAAnswer_ResponsetoTeague.pdf (455.01 KB)
This is S u e's take on SLohA's Motion. I looked at the Exhibits to the Motion and was taken aback by the discrepancies between the two. Apparently, Frd did not seem to think it was significant as he did not address it in his Answer/Memorandum. That's why he gets the big bucks!
(SLohA Motion in italics)
1. SLohA admits that the Association has the authority to release lots from restrictions with ¾ affirmative vote of the affected subdivision and goes on to claim that this release was as to the Covenants—rather than to the parcels—and such release authority incorporates an amendatory provision.
Mystified by this transformational “logic”. And, it is contrary to the facts presented by SLohA in Exhibit D. The Minutes (Exhibit D) of the vote clearly showed that the ballot failed with affirmative votes of 69.81%, 69.75% and 72.29% for each of the subdivisions. Puzzled...
Note: The ballot failure was subsequently acknowledged in the next month’s meeting Minutes where an intention to conduct a second ballot was planned for the following fall.
2. SLohA states that it again amended the Declaration in 1989 consistent with the above 1986 Amendment.
Exhibit D clearly shows that SLohA failed to pass the amendment in 1986, so it provided no precedent basis for an amendment in 1989. In addition, SLohA combined ALL votes for the 1989 amendment into a single aggregate vote, contrary to the existing Declaration requiring “release on a subdivision-specific basis”.
3. SLohA repeats its argument that the 1986 Amendment was properly adopted by “roughly 92% of members..”
Still puzzled. The Minutes of the Ballot reflect affirmative votes in the 60’s%--where did 92% come from? There is no supporting exhibit.
4. SLohA states that –in reliance of 1986 amendatory provisions, it duly adopted revisions in 1989 with 85% approval.
The vote was Null and Void; 1986 amendment failed to pass.
5. SLohA restates that the Developer clearly contemplated amendment to the Declaration with 1) language to amend the Rules, 2) adding provisions to sales contracts and 3) RELEASE of lots from restrictions.
1) amending Bylaws & Regs/ Rules required 66 2/3% approval, 2) adding provisions was a Developer marketing privilege requiring zero approval from members and 3) RELEASE of lots required three-fourths member approval.
With all this attention to amending, did the Developer “just forget” to include an amendment provision for the Covenants but intended to do so by including several other amendatory methods for corporate documents?
6. SLohA further discusses the amendment of Articles of Incorporation as relevant even in the absence of any specific reference to amending Covenants. SLohA maintains that amendment of Articles “reveals it was the intention of the Legislature for corporations to amend its governing documents”.
Articles of Incorporation and Bylaws are corporate documents—their provisions to not attach to deeds and cannot limit use of property. Covenants and Rules/Regs are not corporate documents and “run with the land”. “Governing documents” does include all the documents but they operate differently insofar as affecting property use.
7. With regard to statutes, SLohA argues that FS720.306 provides for 66 2/3 voting for amendments of all documents unless otherwise provided in the association documents.
Florida statutes and Florida Constitution prohibits laws from being applied retroactively unless the documents provide specifically for incorporating future legislative changes.
And, that’s pretty much it!
I think of SLohA’s arguments as based on reliance on “intentions, interpretations and contemplations”; these words occur many times in SLohA’s Motion. SLohA’s persuasive method is subjective and attempts to look backwards into the author’s mind for “intention” and forward into an environment (FL statute, condo law) that did not exist at the time documents were constructed. To be objective, one cannot logically assign “re-interpretative meaning” to the author’s mind and text. Objectivity requires one to adhere to the truth of the subject matter. This “truth” calls for strictly construing text—something which SLohA attorney motion ignores in favor of “intention, interpretation and contemplation”.
According to the legal definition of “intent”, in contract law, the intention of the parties to a written contract is fixed by the language of the contract document.
Disclaimer: I have not been paid by anyone for my opinion and interpretation.
