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Post by Admin on Mar 28, 2014 7:36:48 GMT -5
I have asked the Court to decide--did SLohA have the authority to place a Preservation Notice on my parcel in April 2013? In deciding this, the Judge will also decide if my Covenants were, in fact, extinguished by MRTA. If the covenants were indeed, dead and long gone, then the Notice of Preservation is invalid and must be removed by SLohA.
If the courts decide that the Covenants are not expired, then I will have spent some money to protect my title in the belief, and in the opinion of my attorney, that it was clouded by SLohA's act.
The outcome of the dispute, either way, will result in the desired outcome--assurance of a CLEAR TITLE.
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Post by Admin on Mar 29, 2014 6:41:44 GMT -5
I spoke with someone who actually read all 46 pages of the Complaint against SLohA.
Someone asked "Don't all deeds pass on restrictions?"
The answer is Yes and NO. Certain restrictions are not extinguished by MRTA for example, federal, state and municipal restrictions. Exceptions to MRTA are set forth in the FS712. Personal property land use restrictions are subject to extinguishment by MRTA after 30 years, unless specifically reimposed. The usual phrase on a Deed says "...restrictions, if any, are not hereby reimposed." This is saying that there is preservation of restrictions--IF any exist--but the Seller is not imposing or representing any encumbrances on the title one way or another.
MRTA requires that any reimposed deed restriction conveyed be specifically and exactly named as to its location in the public record so that notice is adequately given as to its existence and effect. A general reference to "restrictions, if any" is insufficient notice.
I have been advised that there are only two ways for a Developer or Association to reimpose land use restrictions and avoid the effect of extinguishment by MRTA:
1. The recorded Unit Plat must either contain the full body of the restriction or contain a specific reference to the OR Book/Page where the restriction is recorded (S-bag plats do not contain this information and you can see the Plat in the Lawsuit link) ...or
2. A Notice of Preservation must be filed specifically referencing the OR Book/Page where Declaration of Covenants and Restrictions can be found in the public record. The Preservation Notice MUST be recorded before the Covenants are extinguished! (After expiration, the affected corporation must undergo a REVITALIZATION--a whole different process described in Part III of FS720.)
In 2013, SLohA filed a Notice of Preservation referencing 1986 and 1989 Amendments which SLohA attorneys call the "Replacement Covenants". By any name, Amendments do not incorporate into a Chain of Title (tested in case law in Florida and is referenced in the Complaint), because Amendments are not conveyances of title and do not give adequate public notice.
Also, though not as important as the chain of title, these two Amendments were wrongfully filed because the underlying parent document--the Declaration of Covenants and Restrictions-- did not provide authority to amend. This is verifiable by anyone who reads the original 1970's Declarations (which were never published in the Redbook but are posted on this Forum).
This is why SLohA's attempt to amend the Covenants is wrongfully offered to Owners on ballots and is almost certain to be legally contested at some point in the future! Obviously, SLohA disputes this and will spend many years in courts and thousands of Association dollars to defend its position against legal cH allenge (for the good of the community). Can you say New Line Item in Reserves for Legal Fees?
Individuals can also reimpose SLohA's restrictions by incorporating the specific OR Book/Page into the body of the Deed conveying title. This is rarely done but several owners in SLR, especially on Queen of Waters, hired an especially thorough real estate attorney who reimposed SLohA Covenants by incorporating the required reference in their Deeds.
MANBOD will say that everything you read on this website is untrue, so please--if you have any questions about anything you read here--ask the Board or the management company for the truth. Think for yourself after getting ALL the facts.
Disclaimer: I am not an attorney and the interpretations above are my opinion and offered for informational purposes only. These interpretations should not be relied upon if you are contemplating legal action. Consult an attorney for legal advice.
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