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Post by Admin on Feb 1, 2014 19:26:15 GMT -5
This was posted on some of the Bulletin Boards but not on CHUG. Note that it is not preceded by any explanation and is not on SLohA letterhead. It is just a print of FS720.309. I will take a WILD GUESS that this is what the Board intends to use to defend its actions with regard to the internet extortion fee:   Well, we have already walked down this path. If I am right about this being all they got, it is pretty lame. I will post separately a discussion why this has NO relevance to our situation, other than it sounds good. Wrong! |
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Post by Admin on Feb 1, 2014 19:50:31 GMT -5
Here it is in its entirety.
720.309 Agreements entered into by the association.—
(1) Any Grnt or reservation made by any document, and any contract that has a term greater than 10 years, that is made by an association before control of the association is turned over to the members other than the developer, and that provides for the operation, maintenance, or management of the association or common areas, must be fair and reasonable.
(2) If the governing documents provide for the cost of communications services as defined in s. 202.11, information services or Internet services obtained pursuant to a bulk contract sH all be deemed an operating expense of the association. If the governing documents do not provide for such services, the board may contract for the services, and the cost sH all be deemed an operating expense of the association but must be allocated on a per-parcel basis rather than a percentage basis, notwithstanding that the governing documents provide for other than an equal sharing of operating expenses. Any contract entered into before July 1, 2011, in which the cost of the service is not equally divided among all parcel owners may be changed by a majority of the voting interests present at a regular or special meeting of the association in order to allocate the cost equally among all parcels.
(a) Any contract entered into by the board may be canceled by a majority of the voting interests present at the next regular or special meeting of the association, whichever occurs first. Any member may make a motion to cancel such contract, but if no motion is made or if such motion fails to obtain the required vote, the contract sH all be deemed ratified for the term expressed therein.
(b) Any contract entered into by the board must provide, and sH all be deemed to provide if not expressly set forth therein, that a hearing-impaired or legally blind parcel owner who does not occupy the parcel with a non-hearing-impaired or sighted person, or a parcel owner who receives supplemental security income under Title XVI of the Social Security Act or food assistance as administered by the Department of Children and Family Services pursuant to s. 414.31, may discontinue the service without incurring disconnect fees, penalties, or subsequent service charges, and may not be required to pay any operating expenses charge related to such service for those parcels. If fewer than all parcel owners share the expenses of the communications services, information services, or Internet services, the expense must be shared by all participating parcel owners. The association may use the provisions of s. 720.3085 to enforce payment by the parcel owners receiving such services.
(c) A resident of any parcel, whether a tenant or parcel owner, may not be denied access to available franchised, licensed, or certificated cable or video service providers if the resident pays the provider directly for services. A resident or a cable or video service provider may not be required to pay anything of value in order to obtain or provide such service except for the charges normally paid for like services by residents of single-family homes located outside the community but within the same franchised, licensed, or certificated area, and except for installation charges agreed to between the resident and the service provider.
History.—s. 59, ch. 95-274; s. 51, ch. 2000-258; s. 21, ch. 2011-196.
Note.—Former s. 617.309
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Post by Admin on Feb 1, 2014 20:07:04 GMT -5
Can I count the ways that this is lame? I--a mere non-lawyer mortal? Here is the most obvious lameness.
What was not included in the post was the HISTORY of the statute. This is very important to know "where" the revised or expanded law came from. In this case, it came from the statute that SLohA was incorporated under i.e. FS 617:
Note that the above is the entire language in 617 and subsection (1) in 720.
SLohA was incorporated under FS617 and is "fixed" to the statutes in effect at the time of the recording of the Declarations in 1972, 1974 and 1975. In the above--to which we are subject-the only Agreement application to us would have occurred only prior to turnover from S-bag Lake Resorts to S-bag Lake Owners Improvement to S-bag Lake Owners Association.
As you can see, this statute was originally written to protect homeowners from unscrupulous Developers who were trying to enter into long term "sweetheart" and "kickback" deals with TV cable companies.
Sound familiar?
Now, it seems that the Legislature has revisited this lucrative business opportunity once again in an attempt to allow Boards to enter into communications contracts EVEN IF THE GOVERNING DOCUMENTS ARE SILENT! Very consumer hostile.
However, this is of no importance since owners are NOT subject to FS 720.309. Why? Because our governing documents do not contain the "magic language"...the subject of the following blog.
Disclaimer: I am not an attorney; this is for information only and cannot be relied upon. If you want legal advice, you should consult an attorney.
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Post by Admin on Feb 1, 2014 20:29:48 GMT -5
Breakin' it down--"Kaufman Language"
SLohA documents have NO language where owners agree to be bound by any future legislative changes to be incorporated into FS 617 "as amended from time to time". This effectively freezes virtually all substantive provisions in our documents to those in effect in 1972, 1974 and 1975.
Note, the italics on "substantive". This is referring to a vested property right; something that is material and states a right that cannot be taken or diminished by statute. In this instance, SLohA is NOT subject to FS720.309 because we did not agree to be bound by future legislated changes in FS720 unless those changes were remedial or curative in nature. Clearly, the provision of FS720.309 is substantive in nature.
Substantive changes are different than procedural changes, which are considered to be necessary, curative or remedial matters that are in the pubic interest and for the public good. An example of this would be the frequent changes on Official Records in 720.303; SLohA is bound to these changes because Owners have a right to inspect their Association's records and have reasonable access methods. It is frequently changed because Associations don't want to provide records inspections and come up with ways to discourage homeowners; therefore, the procedure is frequently changed to support homeowners seeing their records and this is a public good. The procedural changes in the statute to not diminish or impact any contractual rights entered into by the Association with owners. The changes are simply "procedural".
Disclaimer: I am not an attorney; this is for information only and cannot be relied upon. If you want legal advice, you should consult an attorney.
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Post by Admin on Feb 1, 2014 20:46:47 GMT -5
Here's an excerpt from a lawyer blog, which although it is discussing the revisions to the statute on fines and violations, it is applicable in this as well
This also applies to this HOA's attempt to overcome not only the governing documents, which are silent on fining as an enforcement tool, but owners' ballot initiatives which have defeated this question on multiple ballots. Our governing documents do not permit Fines and Violations committee for the same reason that this outfit cannot enter into a communications contract and deem the costs "operating".
Disclaimer: I am not an attorney; this is for information only and cannot be relied upon. If you want legal advice, you should consult an attorney.
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Post by Dick Tracy on Feb 2, 2014 1:01:39 GMT -5
It looks like the BODs are blowing hot air. A "Note" posted on The Official BOD bulletin boards, on plain letter size paper, with out a "Date" or a "Signature". But uses a yellow hi-liter, to hi-lite some sentences.
Now that my Friends, is a "Real Professional" piece of work..... :-(
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Post by Admin on Feb 9, 2014 14:02:41 GMT -5
This is an addendum of sorts to the previous post on the BOD's Mystery Post, which was acknowledged by KL at the following board meeting. I would like to point out that only about half of the statute was printed on the flyer.
Notwithstanding the fact that I believe, as do two other attorneys, the FL720.309 is not enforceable, the fact is that MANBOD did not disclose two portions of the statute:
and
These provisions, if they were applicable to SLohA, would allow the Members to deny the contract at the meeting following adoption by BOD and also allow individuals to Opt Out of the expense depending on financial and physical exclusions permitted by statute.
Also what is not disclosed is that the total contract price is what SLohA obligated to pay and it must be assumed by the remaining participating parcels when the "hardship parcels" opt out. So, for instance, if 10% of the parcels qualify to opt out, then the remaining parcels would have to sustain a 10% increase in their fee to make up the deficit created by the non-participating parcels.
My attorney informally advised me that, because there are no specific provisions written for the process of member rejection of the contract, that the statute was written for other than an independent Association (ie one controlled by Developer). The bill would have to be be researched to see exactly what procedural problem the legislation was trying to address. He commented that, without specific provisions for a Member vote that, at the very least, it was a seriously flawed and badly-written statute. Notwithstanding the above, it did not apply to SLohA because our governing documents expressed no intent to be bound by future substantive changes to FS617 (reorganized under FS720).
Regardless of how this whole sorry affair shakes out in the end, members should ask themsleves: Why would BOD post only HALF a law? And why would BOD "forget" to post the detailed subsections giving members the right to cancel the contract and giving certain members with "hardships" the ability to "opt out"?
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