Post by Admin on Oct 14, 2013 0:20:01 GMT -5
Cross-post from AnonNews:
March 3, 2013
The BOD voted to record a Notice of Preservation to prevent the Covenants from expiring per MRTA (Marketable Records Title Act). Somebody stood up and questioned whether it was too late and it was already expired and something about an amendment not legal acc to case law. Board did not seem to know anything just said that's what the attorney said.
Someone said they heard it was a way to "break" the HOA. Does anyone know what this is about?
_________________________________________________________________________________________
March 19, 2013
I know someone who has an attorney. The lawyer said HOA's "bluff" the owners with fancy footwork and hope noone calls them on it. According to owner, their attorney said that this very same thing was attempted by a law firm in Orlando...
Hmmm....wasn't the law firm that gave the board an opinion from Orlando?
__________________________________________________________________________________________
April 4, 2013
COVENANTS EXPIRED! This might be "hard reading" ahead, but it is IMPORTANT information about your S-bag property!
Attorney's Opinion of Title:
"It is my opinion that, by operation of ch. 712 (“Marketable Record Titles of Real Property”) (hereafter “MRTA”), Florida Statutes, your Lot XXX according to the plat thereof recorded in Plat Book xx, Pages x and x, of the Public Records of Polk County, Florida, has been free and clear since 2010 of the Covenants and Restrictions (hereafter “Original Declaration”) for S-bag Lake Unit 1, recorded at Official Records Book 1428, Page 149, et seq., as well as all purported amendments thereto.
What does this mean? It means that MANY lots in Unit 1, the earliest plat recorded in March 1972, are also expired. It also means that lots are expiring daily in SLR and lot in the later plats, recorded in 1974 and 1975, have or will expire unless the Board takes effective action. It means that those lots are FREE of any restrictions or obligations asserted by SLohA.
The Board has failed to take the necessary action to avoid covenant expiration or prevent covenants from expiring. Preservation is simple and can only encumber lots which have not yet expired. Covenant expiration means it's "too late" to preserve and that a revitalization is necessary to re-encumber a lot and is quite involved and expensive--and not always successful.
Despite a Board "intention" demonstrated at the meeting on 2/20/13 following a very expensive legal consultation, the "Notice of Preservation" has not yet been recorded almost 6 weeks later.
It is fairly easy to tell if your lot has probably expired, but only an attorney can order the necessary expanded MRTA Title Search and render an opinion on a specific lot which would form the basis for a legal cH allenge. Lot covenants expire on individual dates. The 30-year clock begins ticking from the date the Developer (S-bag Lake Resorts Inc) transferred title to the first S-bag buyer. There are additional MRTA considerations that must be resolved.
If the subsequent Deeds do not specifically reference the OR Book/Page where the Declaration was originally recorded, then the Declaration is not "reimposed by reference" and the clock continues to tick...Note that this is a different public record than the Plat Book/Page which is always specifically referenced in a Deed. The notation on a deed:
"Subject to current taxes, easements and restrictions of record. Restrictions, if any, are not reimposed hereby." is not sufficiently specific to satisfy the MRTA requirements and will not prevent covenant expiration.
The Board has, contrary to several Florida court decisions, decided to attempt to reimpose the Declaration by re-recording an amended Declaration with a Notice of Preservation. Notwithstanding the fact that this Notice has not yet been recorded 6 weeks after the affirmative Board vote, the question has been judicially decided by Cunningham v Haley, Berger v Riverwind Parking LLC, Matissek v Waller and Busch v Sand Lake Hills HOA. In general, amendments recorded outside the chain of title do not provide the necessary constructive notice and are not sufficient to re-impose the Declaration.
Big picture: SLohA no longer has any business attempting to collect assessments, enforce rules, assess fines, file liens or pursue foreclosures on parcels whose covenants have expired. This presents mind-boggling budget problems, legal problems (has the HOA foreclosed on any expired lots in the past?) and practical considerations like paying for water and sewer, garbage pickup etc.
The attorney rendering the opinion on the subject lot is Frd O'N eel (Attny), Esq who can best be contacted by emailing fredonealatlaw@aol.com.
We should bear in mind that these difficult and costly problems were created by SLohA leadership. We should not castigate those who choose to legally cH allenge the HOA for a situation leadership created by neglecting to fulfill the requirements of Florida's MRTA law.
_____________________________________________________________________________________
March 3, 2013
The BOD voted to record a Notice of Preservation to prevent the Covenants from expiring per MRTA (Marketable Records Title Act). Somebody stood up and questioned whether it was too late and it was already expired and something about an amendment not legal acc to case law. Board did not seem to know anything just said that's what the attorney said.
Someone said they heard it was a way to "break" the HOA. Does anyone know what this is about?
_________________________________________________________________________________________
March 19, 2013
I know someone who has an attorney. The lawyer said HOA's "bluff" the owners with fancy footwork and hope noone calls them on it. According to owner, their attorney said that this very same thing was attempted by a law firm in Orlando...
Hmmm....wasn't the law firm that gave the board an opinion from Orlando?
__________________________________________________________________________________________
April 4, 2013
COVENANTS EXPIRED! This might be "hard reading" ahead, but it is IMPORTANT information about your S-bag property!
Attorney's Opinion of Title:
"It is my opinion that, by operation of ch. 712 (“Marketable Record Titles of Real Property”) (hereafter “MRTA”), Florida Statutes, your Lot XXX according to the plat thereof recorded in Plat Book xx, Pages x and x, of the Public Records of Polk County, Florida, has been free and clear since 2010 of the Covenants and Restrictions (hereafter “Original Declaration”) for S-bag Lake Unit 1, recorded at Official Records Book 1428, Page 149, et seq., as well as all purported amendments thereto.
What does this mean? It means that MANY lots in Unit 1, the earliest plat recorded in March 1972, are also expired. It also means that lots are expiring daily in SLR and lot in the later plats, recorded in 1974 and 1975, have or will expire unless the Board takes effective action. It means that those lots are FREE of any restrictions or obligations asserted by SLohA.
The Board has failed to take the necessary action to avoid covenant expiration or prevent covenants from expiring. Preservation is simple and can only encumber lots which have not yet expired. Covenant expiration means it's "too late" to preserve and that a revitalization is necessary to re-encumber a lot and is quite involved and expensive--and not always successful.
Despite a Board "intention" demonstrated at the meeting on 2/20/13 following a very expensive legal consultation, the "Notice of Preservation" has not yet been recorded almost 6 weeks later.
It is fairly easy to tell if your lot has probably expired, but only an attorney can order the necessary expanded MRTA Title Search and render an opinion on a specific lot which would form the basis for a legal cH allenge. Lot covenants expire on individual dates. The 30-year clock begins ticking from the date the Developer (S-bag Lake Resorts Inc) transferred title to the first S-bag buyer. There are additional MRTA considerations that must be resolved.
If the subsequent Deeds do not specifically reference the OR Book/Page where the Declaration was originally recorded, then the Declaration is not "reimposed by reference" and the clock continues to tick...Note that this is a different public record than the Plat Book/Page which is always specifically referenced in a Deed. The notation on a deed:
"Subject to current taxes, easements and restrictions of record. Restrictions, if any, are not reimposed hereby." is not sufficiently specific to satisfy the MRTA requirements and will not prevent covenant expiration.
The Board has, contrary to several Florida court decisions, decided to attempt to reimpose the Declaration by re-recording an amended Declaration with a Notice of Preservation. Notwithstanding the fact that this Notice has not yet been recorded 6 weeks after the affirmative Board vote, the question has been judicially decided by Cunningham v Haley, Berger v Riverwind Parking LLC, Matissek v Waller and Busch v Sand Lake Hills HOA. In general, amendments recorded outside the chain of title do not provide the necessary constructive notice and are not sufficient to re-impose the Declaration.
Big picture: SLohA no longer has any business attempting to collect assessments, enforce rules, assess fines, file liens or pursue foreclosures on parcels whose covenants have expired. This presents mind-boggling budget problems, legal problems (has the HOA foreclosed on any expired lots in the past?) and practical considerations like paying for water and sewer, garbage pickup etc.
The attorney rendering the opinion on the subject lot is Frd O'N eel (Attny), Esq who can best be contacted by emailing fredonealatlaw@aol.com.
We should bear in mind that these difficult and costly problems were created by SLohA leadership. We should not castigate those who choose to legally cH allenge the HOA for a situation leadership created by neglecting to fulfill the requirements of Florida's MRTA law.
_____________________________________________________________________________________