Post by Admin on Jan 18, 2019 14:58:31 GMT -5
Here is the Board's Money Grab for the Management Company/Attorneys:
If you adopt Question ONE, owners will be subject to ANY and ALL revisions to the Florida statutes, notably those which refer to TELECOMMUNICATIONS and FINING.
This is because the definition of Covenants and Restrictions has been materially-changed to add: ..."as amended from time to time." S-bag did not have this language in the original covenants and this protected owners from being subject to the later-adopted laws of FL allowing associations to burden owners with fees for TELECOMMUNICATIONS and giving the Association permission to fine owners for rules violations, regardless of the covenants.
If owners adopt Question ONE, there will be hell to pay. Owners can be assessed for internet services as Kay c Ntwerk attempted to do a few years ago and failed. The board, at that time, attempted to justify the increased internet fee with the NEW FL statute that allowed Associations to impose fees for a telecommunications service. Owners were outraged. If Question ONE is passed, it opens the door to Board adding internet assessment fees AND TV fees, should they want to enter into a sweetheart deal with Verizon or whoever.
If Owners adopt Question ONE, there will be hell to pay x2. The changed FL statute permits associations to fine owners for violations of rules and covenants and establish a FINING board and add a FINING Schedule, regardless of covenants. This is a much debated issue among lawyers ie "Can FL lawfully add this authority to Associations"? Many say NO because doing so "impairs" the contract made by owners when they purchased. Some say Yes because the stakeholders, especially lawyers and management companies, write these laws for their own benefit and feel pretty certain that a homeowner would rather pay up than S u e. (There is a LOT of money to be made by management companies enforcing R & R with fines and the subsequent litigation for lawyers.) Some say "Maybe, if the Association has adopted Kaufman Language ie "as amended from time to time".
It is agreed by all that PROCEDURAL LEGISLATIVE CHANGES apply to all! An example of that would be the 2018 language specifying how revisions, amendments and deletions are to be proposed in format to owners for balloting, as described in the previous post. This does not change owners' vested property rights nor impair the contract. It actually ADDs and improves understanding of the proposed changes by all parties.
From attorney blog:
When a declaration does not contain Kaufman language, the determination of whether new laws are applicable depends on whether the statutory amendments are procedural (affecting simply how laws are carried out) or substantive (an actual change to rights or regulations). However, whether a law is procedural or substantive in nature is open to controversy.
Please consider the abuses and associated legal expenses of the past before voting.
From attorney blog:
Obviously, the attorney blog I am referring to is NOT GaGaKnees Gang; it is Alessandra Stivelman, partner at Eisinger Brown Lws Frankel & Chaiet, P.A.
"The “as amended from time to time” language allows for future legislative amendments to automatically apply to the documents. Attorneys refer to the “as amended from time to time” phrase as the “Kaufman” language. This term originated from the 1977 case of Kaufman v. Shere, which provided that when the Kaufman language exists, legislative statutory changes apply to the existing documents."