Post by Admin on Jan 13, 2014 15:36:09 GMT -5
This one is a head scratcher. The added sections were NOT explained at the meeting which makes it already suspect. The added sections have NOTHING to do with what this provision is about--our facilities. The explaination is: "the "attorney wants it"? Well, I don't buy that as a reason to change a covenant--and besides--IT IS NOT A CHANGE--IT IS A BRAND NEW COVENANT AND YOU CANNOT ADD A COVENANT. (Of course, you really cannot amend them either because there is no amendatory provision, but for the purposes of discussion, we will pretend we can like we do about director 3 year terms. Let the chips fall...)
Current Covenant:
13. Each site owner sH all be considered a member of S-bag Lake Owner's Association, Inc., (hereafter referred to as the Association.) The Association owns the following common property and facilities located within S-bag Lake: the streets, fences, greenways, parks, beaches, that portion of S-bag Lake included in the plat of the property, the lagoon, canals, bulkheads, bridges, culverts, water and waste treatment plants, on site and distribution systems, street lighting system, street and other signs, recreation center, comfort stations, laundry facilities, entrance gate and landscaping, pools, boat docks, trading post, post office, transfer station, greenhouse, storage area and such other common buildings and facilities as may be acquired by the Association in the future. The Association sH all levy and collect a reasonable assessment against site owners sufficient to cover each lot owners' proportionate share of actual cost of operating and maintaining all these said activities and for providing water, electricity and garbage disposal services, sewage service, general maintenance, and carrying out of its managerial duties hereunder. Likewise, the Association sH all include in the assessments so made, a sum adequate to pay all real property and other taxes on said facilities. The collection of these sums sH all be provided for in an adequate manner to assure the maintenance necessary. The assessments for expenses sH all be levied in accordance with the by-laws of the Association.
Proposed Covenant:
13. Each site owner sH all be considered a member of S-bag Lake Owners Association, Inc., (hereafter referred to as the Association.) The Association owns the following common property and facilities located within S-bag Lake: The streets, fences, greenways, parks, beaches, that portion of S-bag Lake included in the plat of the property, the lagoon, canals, bulkheads, bridges, culverts, water and waste treatment plants, on site and distribution systems, street lighting system, street and other signs, recreation center, comfort stations, laundry facilities, entrance gate and landscaping, pools, boat dock, post office, transfer stations, storage area, Memorial H all, club house, beach house and such other common buildings and facilities as may be acquired by the Association in the future. The Association sH all levy and collect a reasonable assessment against site owners sufficient to cover each lot owners' proportionate share of actual cost of operating and maintaining all these said activities and for providing water, electricity and garbage disposal services, sewage service, general maintenance, and carrying out of its managerial duties hereunder. Likewise, the Association sH all include in the assessments so made, a sum adequate to pay all real property and other taxes on said facilities. The collection of these sums sH all be provided for in an adequate manner to assure the maintenance necessary. The assessments for expenses sH all be levied in accordance with the by-laws of the Association.
Editor Note: From here to the end are NEW provisions:
Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot by acceptance of a deed thereof, whether or not it sH all be so expressed in such deed, is deemed to covenant and agree to pay the Association: (1) annual assessments or charges; (2) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorneys' fees sH all be a charge on the land and sH all be a continuing lien upon the Property against which each such assessments is made. Additionally, the costs and fees incurred by the Association as a result of the Association's defense of any mortgage foreclosure proceeding as to any property, or similar proceeding where the Association asserts its lien rights and interest on a property, sH all also be a charge on the land and become part of the assessment and continuing lien on the property. All such assessments, together with interest, costs, and reasonable attorneys' fees for collection thereof, sH all also be the personal obligation of the person who was the Owner of such Property at the time when the assessment fell due. The personal obligation for delinquent assessments sH all not pass to his successor in title unless expressly assumed by them.
Subordination of the Lien to Mortgage. The lien of the assessments provided for herein sH all be subordinate to the lien of any first mortgage. Sale or transfer of any Lot sH all not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof sH all not extinguish the lien of such assessments as to payments which became due prior to such sale or transfer, as set forth in Chapter 720, Florida Statutes, which may be amended from time to time. No sale or transfer sH all relieve such Lot for liability for any assessments thereafter becoming due or from the lien thereof.
Why Changed:
Correct Owners' to Owners, remove trading post and greenhouse, add Memorial H all, club house, and beach house to list of buildings. Add last two paragraphs on the advice of our Attorney per Florida Statute 720.
If it's "per Statute" it already applies. It is not necessary to put it into the Covenants. These statutes change every year. Aside from the fact that SLohA does not have the authority to ADD a new provision to the Covenants.
The liening power of the Association is well documented in all the documents; what is the need for restating the obvious? The legislature is changing Florida laws concerning mortgage foreclosures and accumulated assessments nearly every session. There are more revisions to come. Owners are subject to these laws under common law and it does not clarify or broaden a covenanted use restriction. It adds a NEW provision which you cannot do. The Covenants do not even give us the right to AMEND much less ADD!
This is procedural law governing the treatment of mortgage foreclosures which is under constant revision during the mortgage crisis in Florida. I can't imagine how "immortalizing" a constantly changing procedural law in our covenants--even if it were authorized--could be beneficial to a covenants document.
And why add it to a covenant describing details about our common property? Is that to avoid the appearance of adding a New Covenant?
This fails the "sniff test" and "common sense test". It's messy and unnecessary and possibly illegal because it is not an Amendment to anything. If I were voting, I would vote NO--this change solves NO problems and possibly creates HUGE ones!
Current Covenant:
13. Each site owner sH all be considered a member of S-bag Lake Owner's Association, Inc., (hereafter referred to as the Association.) The Association owns the following common property and facilities located within S-bag Lake: the streets, fences, greenways, parks, beaches, that portion of S-bag Lake included in the plat of the property, the lagoon, canals, bulkheads, bridges, culverts, water and waste treatment plants, on site and distribution systems, street lighting system, street and other signs, recreation center, comfort stations, laundry facilities, entrance gate and landscaping, pools, boat docks, trading post, post office, transfer station, greenhouse, storage area and such other common buildings and facilities as may be acquired by the Association in the future. The Association sH all levy and collect a reasonable assessment against site owners sufficient to cover each lot owners' proportionate share of actual cost of operating and maintaining all these said activities and for providing water, electricity and garbage disposal services, sewage service, general maintenance, and carrying out of its managerial duties hereunder. Likewise, the Association sH all include in the assessments so made, a sum adequate to pay all real property and other taxes on said facilities. The collection of these sums sH all be provided for in an adequate manner to assure the maintenance necessary. The assessments for expenses sH all be levied in accordance with the by-laws of the Association.
Proposed Covenant:
13. Each site owner sH all be considered a member of S-bag Lake Owners Association, Inc., (hereafter referred to as the Association.) The Association owns the following common property and facilities located within S-bag Lake: The streets, fences, greenways, parks, beaches, that portion of S-bag Lake included in the plat of the property, the lagoon, canals, bulkheads, bridges, culverts, water and waste treatment plants, on site and distribution systems, street lighting system, street and other signs, recreation center, comfort stations, laundry facilities, entrance gate and landscaping, pools, boat dock, post office, transfer stations, storage area, Memorial H all, club house, beach house and such other common buildings and facilities as may be acquired by the Association in the future. The Association sH all levy and collect a reasonable assessment against site owners sufficient to cover each lot owners' proportionate share of actual cost of operating and maintaining all these said activities and for providing water, electricity and garbage disposal services, sewage service, general maintenance, and carrying out of its managerial duties hereunder. Likewise, the Association sH all include in the assessments so made, a sum adequate to pay all real property and other taxes on said facilities. The collection of these sums sH all be provided for in an adequate manner to assure the maintenance necessary. The assessments for expenses sH all be levied in accordance with the by-laws of the Association.
Editor Note: From here to the end are NEW provisions:
Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot by acceptance of a deed thereof, whether or not it sH all be so expressed in such deed, is deemed to covenant and agree to pay the Association: (1) annual assessments or charges; (2) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorneys' fees sH all be a charge on the land and sH all be a continuing lien upon the Property against which each such assessments is made. Additionally, the costs and fees incurred by the Association as a result of the Association's defense of any mortgage foreclosure proceeding as to any property, or similar proceeding where the Association asserts its lien rights and interest on a property, sH all also be a charge on the land and become part of the assessment and continuing lien on the property. All such assessments, together with interest, costs, and reasonable attorneys' fees for collection thereof, sH all also be the personal obligation of the person who was the Owner of such Property at the time when the assessment fell due. The personal obligation for delinquent assessments sH all not pass to his successor in title unless expressly assumed by them.
Subordination of the Lien to Mortgage. The lien of the assessments provided for herein sH all be subordinate to the lien of any first mortgage. Sale or transfer of any Lot sH all not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof sH all not extinguish the lien of such assessments as to payments which became due prior to such sale or transfer, as set forth in Chapter 720, Florida Statutes, which may be amended from time to time. No sale or transfer sH all relieve such Lot for liability for any assessments thereafter becoming due or from the lien thereof.
Why Changed:
Correct Owners' to Owners, remove trading post and greenhouse, add Memorial H all, club house, and beach house to list of buildings. Add last two paragraphs on the advice of our Attorney per Florida Statute 720.
If it's "per Statute" it already applies. It is not necessary to put it into the Covenants. These statutes change every year. Aside from the fact that SLohA does not have the authority to ADD a new provision to the Covenants.
The liening power of the Association is well documented in all the documents; what is the need for restating the obvious? The legislature is changing Florida laws concerning mortgage foreclosures and accumulated assessments nearly every session. There are more revisions to come. Owners are subject to these laws under common law and it does not clarify or broaden a covenanted use restriction. It adds a NEW provision which you cannot do. The Covenants do not even give us the right to AMEND much less ADD!
This is procedural law governing the treatment of mortgage foreclosures which is under constant revision during the mortgage crisis in Florida. I can't imagine how "immortalizing" a constantly changing procedural law in our covenants--even if it were authorized--could be beneficial to a covenants document.
And why add it to a covenant describing details about our common property? Is that to avoid the appearance of adding a New Covenant?
This fails the "sniff test" and "common sense test". It's messy and unnecessary and possibly illegal because it is not an Amendment to anything. If I were voting, I would vote NO--this change solves NO problems and possibly creates HUGE ones!
