Bubbye Mr. Rss

according to realtor.com, the house status is "pending sale"

Here's some input from a past licensed real estate Salesman.  I believe I mentioned before that I was also required to complete a CAM course as part of my employment as a salesperson in areas dominated by condos (Miami and Naples).   This is not a simple equation because there are at least 4 parties involved--Florida, HOA, Seller, Buyer, Real Estate Agent and Broker.

In general, the Seller must disclose property defects which are not readily apparent or reasonably discoverable by the Buyer.  That is Florida Real Estate law FS475 and governs all real estate transactions whether represented by an agent or not.   To do otherwise is considered fraudulent and the Seller can be sued by the Buyer after the fact if the lack of disclosure results in an unanticipated expense or otherwise reduces the value of the real estate.  A Buyer dealing directly with a Seller is at a considerable disadvantage.

If there is a licensed real estate agent representing the property, it is up to the agent to do "due diligence" to elicit the Seller's disclosure of the property condition, in writing.  The listing agent must also disclose the existence of an HOA laying claim to property use and assessments.

So, Mr. Rss is being represented by Coldwell and it is up to the Agent's Broker to establish a disclosure policy.  There is a lot of skirting of the law in real estate transactions and many inexperienced practitioners.   Legally, the sales agent is acting in a fiduciary capacity and is bound to "not lie" to a Buyer even though the Seller is their client.  Agents represent both sides and, though their main duty is to their client, they also have a "duty of truthful dealings" to the Buyer. 

The state of Florida will hold the Broker and Agent accountable for failure to do due diligence with regard to eliciting property defects from the Seller.  The new buyer might S u e Mr. Rss.  Mr. Rss might S u e SLohA.

Is HOA rule infraction a property defect?  YES.  If Mr. Rss has a violation on the property and has not ever been cited by the HOA for non-compliance, then the defect is not enforced and/or waived.  It might be reasonable for Mr. Rss to not disclose the "defect" under these circumstances.  He might forget.  But that is not a defense under the law.  He knows the defect exists, especially as a past board director.

If SLohA decides to enforce a rule which they have failed to enforce in the past, they must properly notify the Members, in writing, of their intent to begin enforcement and give owners an opportunity to make arrangements to comply.   The new owner will then have the choice of what to do;  the new owner now "owns" the defect.  The new owner may or may not S u e the real estate firm agents and the Seller for withholding material property information.

Did the Buyer have a reasonable opportunity to discover the defect?  Possibly; the Buyer has 3 days to read the documents after signing the sales contract and Buyer might recall that there was a defect that existed on the property that is not compliant with the rules.  Which Rules did the Buyer read?  The ones recorded with the county that deleted entire Regulation sections?  One of several Redbook versions?   Did the Buyer question the Seller about this?  What was the response?  This is the stuff that churns attorney fees.

The title companies role is pretty minor; they are a "ministerial agent" and responsible for discovering all documents that will affect the conditions of the title.  They do the title search and the buyer pays for accuracy and error insurance.   Title searches may reveal "irregularities" and the title company will  advise the buyer to seek a legal opinion.   The buyer can then hire an attorney to examine the documents and comment --an Attorney's Opinion.  This will be the point at which the Buyer will be advised what restrictions encumber the property.

BTW, I assume there is a violation on Mr. Rss's property--what is it?

Doublewides were allowed by Polk County with a change to the PUD in 1994.  County Land Planning trumps SLohA Covenants.

Several items here. 

1. S-bag is not a condominium which  is VERY DIFFERENT from an HOA.  HOA laws are light years behind laws that have governed condos for decades.  However, legislation is moving grudgingly foward at a snail's pace to afford HOA owners the same rights as Condo owners have long enjoyed.

2. Property rights are always found in the governing documents as are the authorities to enforce restrictions on those rights.    The Covenants are the Contract between SLohA and the Owner and cannot be unilaterally changed by the Association.  The municipality in which the property is located can limit or change the restrictions in the contract, because municipalities' laws are superior to lesser private governments like SLohA. 

SLR was declared a CAMPGROUND and that cannot be changed--EVER-- except by 100% Agreement of Owners.   There is no amendatory provision in the Covenants allowing any amendments to the original Declaration of Covenants.   Obviously, a campground would not be concerned with restrictions on rentals of popups or trailers.   The modification of the PUD in 1994 "trumps" SLohA's restriction on property use to popups and trailers, but in that case, only County restrictions become applicable.  The County would not defer to any conflict between it's building codes and PinkBook rules.

3.  As far as the condos go, it is usual and typical for a condo to have such restrictions on the transfer or other property uses of the unit.  Because of occupant densities and sharing of common elements in condos ---which do not apply to HOA's because HOA's are typically single-family detached dwellings--the Condo Association documents typically contain more restrictive covenants than an HOA. 

It should be noted that condos would not have the occasion to morph from one type of property ownership to another.  Condos are concepted and built originally as vertical ownership entities and owners' interests are further defined as "share ownership" as opposed to HOA's, where members own no proportionate shares of the common property.  Rather, ALL Owners of HOA property own ALL common property jointly and it is not "divisible".

The Title Company is responsible for assuring that the Title is transferred with all conditions and restrictions which have been duly publicly recorded on the property are satisfied by the Conveyer of the property.  Title companies will trace the chain of title and underlying documents encumbering the property to assure that all documents were accurately prepared and the property encumbrances (by other lenders or individual claims) and restrictions have been met before they will underwrite and insure their due diligence title work.

As side note, amendments to governing documents are not required to be publicly recorded.  If they are recorded, amendments are not conveyances and do not appear on a deed's chain of title.  Amendments are not, therefore, legally sufficient to put a new title owner on "constructive notice" of a material change of property rights.  A Title Company will reveal the existence of any amendments that may have been recorded on the property, but such amendments do not impact the title.  This is because amendments to covenants CANNOT change property rights--they can only "flesh out" an existing property right.  Therefore, they are inconsequential to the conditions of title.

Disclaimer: I am not an attorney or a professional title searcher.  These interpretations should not be relied upon if you are contemplating legal action. Consult an attorney for legal advice.

Perhaps the quick sale was because of the beautiful front porch.

Maybe if you had been elected to the BOD and exposed some things your home would've sold in a week as well!

Its not really a fence, it is open on one side and has no gate. A fence is three sides, generally, and a gate to provide access to the area that is enclosed on all sides. Not a fence!