Post by Admin on Jan 27, 2015 9:57:21 GMT -5
This came up during the MRTA seminar and I noted Mr. O'N eel (Attny)'s glance in my direction as if to say "Help! Do you want to field this one?". Of course, I chose not to during the meeting. It is a question and answer that deserves serious attention.
The question came up again after the seminar was over; a Canadian couple came up to me and asked two questions:
I briefly explained homestead and that it was a pro-consumer law that protected property rights of owners who resided on Florida property, provided protection against certain creditors and afforded significant monetary tax benefits.
This is a factual second part answer to the homestead question which is addressed by a recognized Association attorney:
The second question was "What was the problem that caused you to S u e the Association?" This one is a little harder to explain but very relevant to the dispute and underscores the countersuit by 66SS as a primary defense against SLohA’s lawsuit against 66SS. This is a comprehensive answer to that question. Perhaps I should have posted this sooner.
First, I will preface my comments with a few relevant background facts. I became very involved in learning about SLohA governance while working with Mik on his Resident Forum in 2010. As a recent widow, I wanted to learn about and become connected with my new chosen community and felt this was a good way to start. I attended every Workshop and Board Meeting. I read and posted the entire Redbook there, as well as the Florida Homeowner Statute. When I got to Section 3, I did not understand it at first so I did some further research. My background in Developer real estate law was very helpful to my comprehension. I did a quick title search on my own lot and realized “Oh my lot is expired!”. My next thought was “SLohA would NEVER let the Covenants expire” and I immediately ceased further inquiry. That was naïve of me.
Comes the day in April 2013 when friends brought me a mailing which I was unaware of since I rarely go to my mailbox. They were questioning what was it about. As I read it, I felt the color drain from my face and my blood pressure drop! The unthinkable was unfolding and my future was about to be turned upside down!
SLohA HAD FAILED TO PRESERVE ITS COVENANTS AND HAD LET THEM EXPIRE!
The paper I was reading was a Notice of Preservation which might have preserved the Covenants--had they been filed in a timely manner i.e. within the 30-year period specified by MRTA! (The fact that SLohA had filed Amendments--not the original Declaration-- was not realized at that time.)
Thus began an intensive inquiry fueled by the geeky researcher inside of me. I suspected that SLohA was in a pickle and that my title had been clouded by SLohA’s recording. Because my parcel was expired by MRTA in 2010, SLohA’s Notice of Preservation in 2013 placed an unwanted and unauthorized encumbrance on my property affecting its marketability! My property was then "For Sale".
I did not appreciate SLohA's buggering up my sale plans, so I searched for a competent attorney to consult and was finally led to Frd O’Neal by a national HOA forum I belong to. Frd quickly validated my concern with an independent title search and opinion. Now… comes the point of no return. What am going to do about it?
Note: Here is an example that might be clearer. Let's suppose you have just sold your home at long last and the Buyer orders a title search and an attorney opinion to assure marketability and clear title. Unbeknownst to you, SLohA had publicly recorded a lien on your property for unpaid assessments. The Buyer said “No way I’m going to pay or accept title with the lien. Bubbye”. Your long-awaited sale is now jeopardized and is unmarketable in its present condition!
You contact SLohA and say “Remove the lien! I never missed an assessment payment!”
SLohA says "NO, you missed payments and you now owe us that money plus attorney’s fees, interest and penalties”. You now have an impasse and a prolonged dispute with the bottom line being you have an unmarketable title on your property.
Now..what will you do? Slink away and be the victim or..find a way to solve the problem?
That is similar to my situation. If my prospective Buyer found that MRTA had expired the SLohA encumbrance on my property in 2010—and SLohA made a public claim on my property in 2013—the attorney doing the opinion will tell his Client that there is a cloud on the title—a defect—that needs to be cleared up by the Seller and that his client might not want to assume the risk of the uncertain claims made on S u e’s property which might require litigation.
BANG-my Buyer probably goes away and my property becomes unmarketable.
BOTTOM LINE: The same thing that happened to my title has happened to perhaps 90% of the titles in S-bag. Owner and Buyers just aren't aware yet.
I made several efforts to resolve the dispute before filing a lawsuit against SLohA. I invited a Board Member to have casual meeting with me to discuss—which was refused. I sponsored an informational meeting for Owners, sent a Demand Letter to the Board, invited SLohA to attend a pre-mediation conference, invited SLohA to participate in Mediation, and attended mediation---all without resolution.
There were many opportunities along the way to AVOID a lawsuit, but SLohA did not choose to attempt to resolve the dispute. So, I had no choice but to file a lawsuit to compel SLohA to pay attention and deal with the problem.
And, here we are today—19 months after the Notice of Preservation and 18 months after my Demand Letter. Many attorney legal fees have been wasted financing this lawsuit by myself and SLohA--dollars that were intended for my retirement security and enjoyment. I am a widow with limited means but unlimited resolve.
Many rumors have circulated and I have been publicly denigrated, slandered and libeled for being involved in fact--gathering and rumor-busting in SLR and having the audacity to communicate with my neighbors. I have been villainized and shunned. I have had dirty looks aimed at me and have stopped attending events and activities that I previously engaged in before this problem. I installed outdoor security cameras to monitor my property. I installed security shutters. I sustained a public threat by a board director, sponsored by CHUG, for which I summoned police on one occasion. I have essentially lost my potential to be accepted into my new community which I was hopeful to be part of after I lost my husband in 2009.
Some people think I don't want to pay assessments. That is simply not true and is the slop of slothful minds inhabiting the bodies of mean-spirited people. In an attempt to dispell the rumor, I publicly waived my privacy rights related to my history of payments to SLohA. I have never been a day late or a dollar short. I recognize my obligation to pay assessments and have intention to continue to pay assessments. This intention is specifically stated in my lawsuit and my attorney has advised that anyone who stopped paying assessments under ANY conditions would be sued by the Corporation. Additionally, I have cautioned others privately and via the Forum that assessments MUST be paid regardless of the legal outcome of my lawsuit.
I hope that this background can be helpful to those with curious and open minds who are seeking the truth about the problems in S-bag which were already here years before I invested my dollars and my heart in this community. Don't shoot the messenger! These problems are solvable. But, in the current direction we are being led, we are looking at a continued and expensive prolongation of SLohA trying to "unring the bell".
S u e Tg
The question came up again after the seminar was over; a Canadian couple came up to me and asked two questions:
How does homestead work to allow homesteaded owners to be free of a revitalized Declaration? And, what is the problem that caused you to S u e the Association?
I briefly explained homestead and that it was a pro-consumer law that protected property rights of owners who resided on Florida property, provided protection against certain creditors and afforded significant monetary tax benefits.
This is a factual second part answer to the homestead question which is addressed by a recognized Association attorney:
The relevant revitalization statute is the second half of Florida Statutes Section 720.407 (4)
Upon recordation, the revived declaration sH all replace and supersede the previous declaration with respect to all affected parcels then governed by the previous declaration and sH all have the same record priority as the superseded previous declaration. With respect to any affected parcels that had ceased to be governed by the previous declaration as of the recording date, the revived declaration may not have retroactive effect with respect to the parcel and sH all take priority with respect to the parcel as of the recording date.
This statute clearly reflects an understanding of the Florida Constitutional homestead right against forced sale. The homestead properties whose covenants have already expired have established homestead that pre-dates the effective date of the recorded revitalized covenants. What that means is that if you have a property that has extinguished covenants and you live or have an intent to live on that property, revitalization will never enable the HOA to lawfully foreclose on your home as long as you live there.
Upon recordation, the revived declaration sH all replace and supersede the previous declaration with respect to all affected parcels then governed by the previous declaration and sH all have the same record priority as the superseded previous declaration. With respect to any affected parcels that had ceased to be governed by the previous declaration as of the recording date, the revived declaration may not have retroactive effect with respect to the parcel and sH all take priority with respect to the parcel as of the recording date.
This statute clearly reflects an understanding of the Florida Constitutional homestead right against forced sale. The homestead properties whose covenants have already expired have established homestead that pre-dates the effective date of the recorded revitalized covenants. What that means is that if you have a property that has extinguished covenants and you live or have an intent to live on that property, revitalization will never enable the HOA to lawfully foreclose on your home as long as you live there.
The second question was "What was the problem that caused you to S u e the Association?" This one is a little harder to explain but very relevant to the dispute and underscores the countersuit by 66SS as a primary defense against SLohA’s lawsuit against 66SS. This is a comprehensive answer to that question. Perhaps I should have posted this sooner.
First, I will preface my comments with a few relevant background facts. I became very involved in learning about SLohA governance while working with Mik on his Resident Forum in 2010. As a recent widow, I wanted to learn about and become connected with my new chosen community and felt this was a good way to start. I attended every Workshop and Board Meeting. I read and posted the entire Redbook there, as well as the Florida Homeowner Statute. When I got to Section 3, I did not understand it at first so I did some further research. My background in Developer real estate law was very helpful to my comprehension. I did a quick title search on my own lot and realized “Oh my lot is expired!”. My next thought was “SLohA would NEVER let the Covenants expire” and I immediately ceased further inquiry. That was naïve of me.
Comes the day in April 2013 when friends brought me a mailing which I was unaware of since I rarely go to my mailbox. They were questioning what was it about. As I read it, I felt the color drain from my face and my blood pressure drop! The unthinkable was unfolding and my future was about to be turned upside down!
SLohA HAD FAILED TO PRESERVE ITS COVENANTS AND HAD LET THEM EXPIRE!
The paper I was reading was a Notice of Preservation which might have preserved the Covenants--had they been filed in a timely manner i.e. within the 30-year period specified by MRTA! (The fact that SLohA had filed Amendments--not the original Declaration-- was not realized at that time.)
Thus began an intensive inquiry fueled by the geeky researcher inside of me. I suspected that SLohA was in a pickle and that my title had been clouded by SLohA’s recording. Because my parcel was expired by MRTA in 2010, SLohA’s Notice of Preservation in 2013 placed an unwanted and unauthorized encumbrance on my property affecting its marketability! My property was then "For Sale".
I did not appreciate SLohA's buggering up my sale plans, so I searched for a competent attorney to consult and was finally led to Frd O’Neal by a national HOA forum I belong to. Frd quickly validated my concern with an independent title search and opinion. Now… comes the point of no return. What am going to do about it?
Note: Here is an example that might be clearer. Let's suppose you have just sold your home at long last and the Buyer orders a title search and an attorney opinion to assure marketability and clear title. Unbeknownst to you, SLohA had publicly recorded a lien on your property for unpaid assessments. The Buyer said “No way I’m going to pay or accept title with the lien. Bubbye”. Your long-awaited sale is now jeopardized and is unmarketable in its present condition!
You contact SLohA and say “Remove the lien! I never missed an assessment payment!”
SLohA says "NO, you missed payments and you now owe us that money plus attorney’s fees, interest and penalties”. You now have an impasse and a prolonged dispute with the bottom line being you have an unmarketable title on your property.
Now..what will you do? Slink away and be the victim or..find a way to solve the problem?
That is similar to my situation. If my prospective Buyer found that MRTA had expired the SLohA encumbrance on my property in 2010—and SLohA made a public claim on my property in 2013—the attorney doing the opinion will tell his Client that there is a cloud on the title—a defect—that needs to be cleared up by the Seller and that his client might not want to assume the risk of the uncertain claims made on S u e’s property which might require litigation.
BANG-my Buyer probably goes away and my property becomes unmarketable.
BOTTOM LINE: The same thing that happened to my title has happened to perhaps 90% of the titles in S-bag. Owner and Buyers just aren't aware yet.
I made several efforts to resolve the dispute before filing a lawsuit against SLohA. I invited a Board Member to have casual meeting with me to discuss—which was refused. I sponsored an informational meeting for Owners, sent a Demand Letter to the Board, invited SLohA to attend a pre-mediation conference, invited SLohA to participate in Mediation, and attended mediation---all without resolution.
There were many opportunities along the way to AVOID a lawsuit, but SLohA did not choose to attempt to resolve the dispute. So, I had no choice but to file a lawsuit to compel SLohA to pay attention and deal with the problem.
And, here we are today—19 months after the Notice of Preservation and 18 months after my Demand Letter. Many attorney legal fees have been wasted financing this lawsuit by myself and SLohA--dollars that were intended for my retirement security and enjoyment. I am a widow with limited means but unlimited resolve.
Many rumors have circulated and I have been publicly denigrated, slandered and libeled for being involved in fact--gathering and rumor-busting in SLR and having the audacity to communicate with my neighbors. I have been villainized and shunned. I have had dirty looks aimed at me and have stopped attending events and activities that I previously engaged in before this problem. I installed outdoor security cameras to monitor my property. I installed security shutters. I sustained a public threat by a board director, sponsored by CHUG, for which I summoned police on one occasion. I have essentially lost my potential to be accepted into my new community which I was hopeful to be part of after I lost my husband in 2009.
Some people think I don't want to pay assessments. That is simply not true and is the slop of slothful minds inhabiting the bodies of mean-spirited people. In an attempt to dispell the rumor, I publicly waived my privacy rights related to my history of payments to SLohA. I have never been a day late or a dollar short. I recognize my obligation to pay assessments and have intention to continue to pay assessments. This intention is specifically stated in my lawsuit and my attorney has advised that anyone who stopped paying assessments under ANY conditions would be sued by the Corporation. Additionally, I have cautioned others privately and via the Forum that assessments MUST be paid regardless of the legal outcome of my lawsuit.
I hope that this background can be helpful to those with curious and open minds who are seeking the truth about the problems in S-bag which were already here years before I invested my dollars and my heart in this community. Don't shoot the messenger! These problems are solvable. But, in the current direction we are being led, we are looking at a continued and expensive prolongation of SLohA trying to "unring the bell".
S u e Tg