Post by Admin on Nov 18, 2013 6:14:28 GMT -5
Cross-posted from slrmata.webs.com. It is being brought over to remind readers about some basic facts of expiration as there appears to be much misinformation floating around:
1. What happens if we "let the sleeping dog lie" and ignore Covenants expiration, pretending all is well?
That could work for the short term but sooner or later, someone is going to get mad and cH allenge and there is going to be a reaction. You have a mess in here and eventually, the expiration issue is going to dominate.
2. "Why do this? How can it benefit the way of life people want? Will the elimination of the HOA turn the property into a junkyard?"
You will simply be bound by ordinances, county and state laws like non-HOA neighborhoods.
3. The HOA recorded a Notice of Preservation recently. What does this mean to someone whose lot is already expired?
The Notice is false. It does not refer back to the original Declaration, as required by FS712. It refers to Amendment--and Amendment occurs outside the chain of title. Also, the original document has no inherent authority to amend. It is a slander of your title. A cloud on your title.
4. "What liability does a parcel owner have whose Covenants have expired to any action by the HOA imposing fines/judgments?"
Extinguished parcels are "sovereign" and are not bound by CC&R's. You are free and clear to use your property subject to ordinances, county, state and common law. This is not to say that, HOA will recognize your status and attempt to bully.
5. "What liability does a parcel owner have whose Covenants have not yet expired?"
To the extent that the HOA's insurance provider covers the HOA, which they are required to do for negligent acts but not fraudulent ones, the individual owner has limited or no liability. The HOA is liable and possibly the individual Directors. If the insurance carrier declines to defend acts of HOA and a judgement is rendered against the HOA, it then will become an owner liability. Owners will be levyed a special assessment to pay the judgement-the UNexpired owners.
6. "Does the HOA, when it acts to bind the Association with contracts on common property (which expired in 2007), act legally on unexpired parcels and illegally on expired parcels?"
This was not discussed
7. "Can Management company, even though its presence on the property occurred AFTER extinguishment of most parcels, be held financially responsible for failing to preserve/initiate revitalization and be compelled to pay the cost of revitalization?"
This is generally not a fruitful path to pursue. Management companies are expert at dodging accountability and covering their bases.
8. "Can owners act as a single entity to compel the HOA to properly preserve/revitalize covenants?"
Yes, but from all I am hearing, that sounds like a cH allenge. You would have to perhaps petition and have a special meeting to discuss or even reconstitute the Board with Directors that wanted to do this.
9. "Since we do not know the ratio of current expired/unexpired parcels, should BOTH preservation and revitalization be undertaken? At what point is preservation abandoned and revitalization begun?"
Immediate and proper preservation would extend encumbrance on an unknown number of parcels, but at least it would secure part of the budget should the expired lots discontinue paying assessments.
10. "If revitalization occurs and my lot is expired, does my non-homestead parcel automatically become reincumbered if revitalization is affirmed by 50% vote?"
Yes, you will be re-encumbered as a NON-homestead property. You CANNOT be re-encumbered if you are a Homestead property.
11. "If revitalization fails to be affirmed on a first attempt, by what authority does the HOA act to represent the sovereign parcels in continuing to effect a revitalization?"
Sovereign lots are not bound by any HOA action and would participate, (or not) in another attempt by what would be considered a voluntary leadership group.
12. "Does HOA have authority to collect limited proxie votes for a revitalization, or does Florida require actual owner signatures?"
Revitalization is an arduous process and the short answer is NO PROXIES or Power of Attorneys would be tolerated by Florida, which must review and approve the revitalization.
13. "Is there a way to protect my financial interests during this transitional period short of hiring an attorney to represent my secession from the HOA?"
This was not discussed to any great extent. The recommendation is that one puts the BOD on notice of having slandered a title or declare your lot sovereign and this eliminates certain usual defenses in the event of litigation.
14. "Our HOA owns the utility plant. If I hire an attorney to represent my interest when my parcel is expired and stop paying assessments, can HOA cut off my water/sewer utility services which are currently folded into the assessment payment?"
If it is possible from engineering standpoint, they can try but cutting off water for expired parcels is a problem on many levels for an HOA. Eventually, they will have to figure something out to avoid becoming involved as a provider under the regulation of Public Service Commission and other regulatory bodies.
15. "Will HOA have to apply to Public Service Commission as a reseller of utility services to those parcel owners whose lots have expired?"
Hopefully they will be smart enough to find another way to solve the problem.
16. "Can HOA enact special requirements for expired lot owners to access their parcel through the gated entrance, which currently requires access codestickers and/or manual activation inside the office?"
I have a case in litigation now on this very subject. The HOA is denying entrance to an owner's guests and contractors, claiming that the HOA owns the roads and can say who can travel on them. Common law prevents HOA from denying owners access to their own property. We sH all see.
(Editorial Note: The above Seminole County case referred to in Q 16. has been decided in favor of the homeowner whose rights were being violated by the HOA. The HOA has a permanent injunction against engaging in strongarm tactics and the homeowner is now pursuing money damages against his HOA.)
1. What happens if we "let the sleeping dog lie" and ignore Covenants expiration, pretending all is well?
That could work for the short term but sooner or later, someone is going to get mad and cH allenge and there is going to be a reaction. You have a mess in here and eventually, the expiration issue is going to dominate.
2. "Why do this? How can it benefit the way of life people want? Will the elimination of the HOA turn the property into a junkyard?"
You will simply be bound by ordinances, county and state laws like non-HOA neighborhoods.
3. The HOA recorded a Notice of Preservation recently. What does this mean to someone whose lot is already expired?
The Notice is false. It does not refer back to the original Declaration, as required by FS712. It refers to Amendment--and Amendment occurs outside the chain of title. Also, the original document has no inherent authority to amend. It is a slander of your title. A cloud on your title.
4. "What liability does a parcel owner have whose Covenants have expired to any action by the HOA imposing fines/judgments?"
Extinguished parcels are "sovereign" and are not bound by CC&R's. You are free and clear to use your property subject to ordinances, county, state and common law. This is not to say that, HOA will recognize your status and attempt to bully.
5. "What liability does a parcel owner have whose Covenants have not yet expired?"
To the extent that the HOA's insurance provider covers the HOA, which they are required to do for negligent acts but not fraudulent ones, the individual owner has limited or no liability. The HOA is liable and possibly the individual Directors. If the insurance carrier declines to defend acts of HOA and a judgement is rendered against the HOA, it then will become an owner liability. Owners will be levyed a special assessment to pay the judgement-the UNexpired owners.
6. "Does the HOA, when it acts to bind the Association with contracts on common property (which expired in 2007), act legally on unexpired parcels and illegally on expired parcels?"
This was not discussed
7. "Can Management company, even though its presence on the property occurred AFTER extinguishment of most parcels, be held financially responsible for failing to preserve/initiate revitalization and be compelled to pay the cost of revitalization?"
This is generally not a fruitful path to pursue. Management companies are expert at dodging accountability and covering their bases.
8. "Can owners act as a single entity to compel the HOA to properly preserve/revitalize covenants?"
Yes, but from all I am hearing, that sounds like a cH allenge. You would have to perhaps petition and have a special meeting to discuss or even reconstitute the Board with Directors that wanted to do this.
9. "Since we do not know the ratio of current expired/unexpired parcels, should BOTH preservation and revitalization be undertaken? At what point is preservation abandoned and revitalization begun?"
Immediate and proper preservation would extend encumbrance on an unknown number of parcels, but at least it would secure part of the budget should the expired lots discontinue paying assessments.
10. "If revitalization occurs and my lot is expired, does my non-homestead parcel automatically become reincumbered if revitalization is affirmed by 50% vote?"
Yes, you will be re-encumbered as a NON-homestead property. You CANNOT be re-encumbered if you are a Homestead property.
11. "If revitalization fails to be affirmed on a first attempt, by what authority does the HOA act to represent the sovereign parcels in continuing to effect a revitalization?"
Sovereign lots are not bound by any HOA action and would participate, (or not) in another attempt by what would be considered a voluntary leadership group.
12. "Does HOA have authority to collect limited proxie votes for a revitalization, or does Florida require actual owner signatures?"
Revitalization is an arduous process and the short answer is NO PROXIES or Power of Attorneys would be tolerated by Florida, which must review and approve the revitalization.
13. "Is there a way to protect my financial interests during this transitional period short of hiring an attorney to represent my secession from the HOA?"
This was not discussed to any great extent. The recommendation is that one puts the BOD on notice of having slandered a title or declare your lot sovereign and this eliminates certain usual defenses in the event of litigation.
14. "Our HOA owns the utility plant. If I hire an attorney to represent my interest when my parcel is expired and stop paying assessments, can HOA cut off my water/sewer utility services which are currently folded into the assessment payment?"
If it is possible from engineering standpoint, they can try but cutting off water for expired parcels is a problem on many levels for an HOA. Eventually, they will have to figure something out to avoid becoming involved as a provider under the regulation of Public Service Commission and other regulatory bodies.
15. "Will HOA have to apply to Public Service Commission as a reseller of utility services to those parcel owners whose lots have expired?"
Hopefully they will be smart enough to find another way to solve the problem.
16. "Can HOA enact special requirements for expired lot owners to access their parcel through the gated entrance, which currently requires access codestickers and/or manual activation inside the office?"
I have a case in litigation now on this very subject. The HOA is denying entrance to an owner's guests and contractors, claiming that the HOA owns the roads and can say who can travel on them. Common law prevents HOA from denying owners access to their own property. We sH all see.
(Editorial Note: The above Seminole County case referred to in Q 16. has been decided in favor of the homeowner whose rights were being violated by the HOA. The HOA has a permanent injunction against engaging in strongarm tactics and the homeowner is now pursuing money damages against his HOA.)